Patent Mortgage and Security Agreement - WebSideStory Inc. and Imperial Creditcorp.
PATENT MORTGAGE
AND SECURITY AGREEMENT
THIS PATENT MORTGAGE AND SECURITY AGREEMENT is made as of August 11,
2000 ("Security Agreement"), by and between WEBSIDESTORY, INC., a California
corporation ("Debtor"), and IMPERIAL CREDITCORP ("Lender").
RECITALS
A. Lender has agreed to lend to Debtor certain funds (the "Loans"), and
Debtor desires to borrow such funds from Lender pursuant to the terms of that
certain Loan Agreement dated of even date herewith (as the same may be modified,
amended, supplemented, restated or superceded from time to time, the "Loan
Agreement"). Initially capitalized terms used but not defined herein shall have
the meanings given to them in that certain General Security Agreement dated of
even date herewith (as the same may be modified, amended, supplemented, restated
or superceded from time to time, the "General Security Agreement"), executed by
Debtor in favor of Lender.
B. In order to induce Lender to make the Loans, Debtor has agreed to
assign certain intangible property to Lender for purposes of securing the
obligations of Debtor to Lender.
NOW, THEREFORE, the parties hereto agree as follows:
1. COLLATERAL ASSIGNMENT, PATENT MORTGAGE AND GRANT OF SECURITY
INTEREST. As collateral security for the prompt and complete payment and
performance of all of Debtor's present or future indebtedness, obligations and
liabilities to Lender, including, without limitation, such indebtedness,
obligations and liabilities under the Loan Agreement and the other documents
executed in connection therewith (as the same may be modified, amended,
supplemented, restated or superceded from time to time, collectively, the "Loan
Documents"), Debtor hereby grants a security interest and mortgage to Lender, as
collateral security, in and to Debtor's entire right, title and interest in, to
and under the following, now or hereafter existing, created, acquired or held by
Debtor (all of which shall collectively be called the "Intellectual Property
Collateral"):
(a) Any and all copyright rights, copyright applications, copyright
registrations, copyright recordings and like protections in each work of
authorship and derivative work thereof, whether registered or unregistered or
published or unpublished and whether or not the same also constitutes a trade
secret, held pursuant to the laws of the United States, any State thereof or of
any other country or political subdivision thereof, including, without
limitation, those set forth on EXHIBIT A attached hereto and incorporated herein
by this reference (collectively, the "Copyrights").
(b) Any and all trade secrets, and any and all intellectual property
rights in computer software and computer software products;
(c) Any and all design rights which may be available to Debtor;
(d) Any and all letters patent, petty patents, divisionals, patents
of addition of the United States or any other country or political subdivision
thereof, all registrations and recordings thereof, and all patents to issues in
such applications of the United States or any other country or political
subdivision thereof, including, without limitation, registrations, recordings
and applications in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any State
1.
<PAGE> 2
thereof or any other country or political subdivision thereof, including,
without limitation, improvements, divisions, renewals, reissues, extensions,
continuations, and continuations-in-part or extensions thereof, including,
without limitation, those set forth on EXHIBIT B attached hereto and
incorporated herein by this reference (collectively, the "Patents");
(e) Any and all trademarks, trade names, corporate names, company
names, business names, trade styles, service marks, logos, other source or
business identifiers, prints and labels on which any of the foregoing have
appeared or appear, designs and general intangibles of like nature, all
registrations and recordings thereof, and any applications in connection
therewith, including, without limitation, registrations, recordings and
applications in the United States Patent and Trademark Office or in any similar
office or agency of the United States, any State thereof or any other country or
any political subdivision thereof, and the entire goodwill of the business of
Debtor connected with and symbolized by all such trademarks, including, without
limitation, those set forth on EXHIBIT C attached hereto and incorporated herein
by this reference (collectively, the "Trademarks");
(f) Any and all income, royalties, damages, claims, and payments now
and hereafter due and payable, including, without limitation, all claims for
damages and payments by way of past, present and future infringement,
misappropriation, or dilution of any of the rights included above, with the
right, but not the obligation, to sue for and collect such damages for said use
or infringement of the intellectual property rights identified above;
(g) All licenses or other rights to use any of the Copyrights,
Patents or Trademarks, (collectively, the "Intellectual Property") and all
license fees and royalties arising from such use to the extent permitted by such
license or rights and not prohibited by applicable law;
(h) All amendments, continuations, renewals and extensions of any of
the Intellectual Property; and
(i) All proceeds and products of the foregoing, including, without
limitation, all payments under insurance or any indemnity or warranty payable in
respect of any of the foregoing.
The security interest granted hereunder is granted in conjunction with
the security interests granted to Lender under the General Security Agreement.
The rights and remedies of Lender with respect to the security interest granted
hereby are in addition to those set forth in the General Security Agreement, the
Loan Agreement and the other Loan Documents, and those which are now or
hereafter available to Lender as a matter of law or equity. Each right, power
and remedy of Lender provided for herein or in the General Security Agreement,
the Loan Agreement or any of the other Loan Documents, or now or hereafter
existing at law or in equity shall be cumulative and concurrent and shall be in
addition to every right, power or remedy provided for herein and the exercise by
Lender of any one or more of the rights, powers or remedies provided for in this
Security Agreement, the General Security Agreement, the Loan Agreement or any of
the other Loan Documents, or now or hereafter existing at law or in equity,
shall not preclude the simultaneous or later exercise by any person, including
Lender, or any or all other rights, powers or remedies.
Notwithstanding any of the foregoing, the term "Intellectual Property
Collateral" shall not include any general intangibles of Debtor (whether owned
or held as licensee or lessee, or otherwise), to the extent that (i) such
general intangibles are not assignable or capable of being encumbered as a
matter of law or under the terms of the license, lease or other agreement
applicable thereto (but solely to the extent that any such restriction shall be
enforceable under applicable law), without the consent of the licensor or lessor
thereof or other applicable party thereto and (ii) such consent has not been
obtained; provided, however, that the grant of security interest herein shall
extend to, and the term "Intellectual
2.
<PAGE> 3
Property Collateral" shall include, (A) any and all Proceeds of any general
intangibles which are otherwise excluded to the extent that the assignment or
encumbrance of such Proceeds is not so restricted, (B) upon obtaining the
consent of any such licensor, lessor or other applicable party's consent with
respect to any such otherwise excluded general intangibles, such general
intangibles as well as any and all Proceeds thereof that might theretofore have
been excluded from such a grant of a security interest and the term
"Intellectual Property Collateral" and (C) any general intangible which is an
account receivable or proceed of or otherwise related to the enforcement or
collection of any account receivable or goods which are the subject of any
account receivable.
2. AUTHORIZATION AND REQUEST. Debtor authorizes and requests that the
Register of Copyrights and the Commissioner of Patents and Trademarks record
this conditional assignment.
3. COVENANTS AND WARRANTIES. Debtor represents, warrants, covenants and
agrees as follows:
(a) Debtor is now the sole owner of the Intellectual Property
Collateral, except for licenses granted by Debtor to its customers in the
ordinary and normal course of business as now conducted and Permitted Liens;
(b) Performance of this Security Agreement does not conflict with or
result in a breach of any agreement to which Debtor is a party or by which
Debtor is bound;
(c) During the term of this Security Agreement, Debtor will not
sell, transfer, assign or otherwise encumber any interest in the Intellectual
Property Collateral, except for (i) licenses granted by Debtor in the ordinary
and normal course of its business as now conducted or as set forth in this
Security Agreement or that do not, in the aggregate, impair the Intellectual
Property Collateral or result in a Material Adverse Effect and (ii) subject to
Debtor's execution of appropriate documents, in form acceptable to Lender, to
perfect or continue the perfection of Lender's interest in the Intellectual
Property Collateral, transfers to affiliates of Debtor;
(d) To its knowledge, each of the Patents, if any, is valid and
enforceable, and there is no Intellectual Property which has been judged invalid
or unenforceable, in whole or in part, and no material claim has been made that
any part of the Intellectual Property Collateral violates the rights of any
third party;
(e) In connection with the quarterly report required under Section
6(a), Debtor shall promptly advise Lender of any material changes in the
composition of the Intellectual Property Collateral, including but not limited
to any subsequent ownership right of Debtor in or to any Intellectual Property
not specified in this Security Agreement;
(f) Debtor shall (i) protect, defend and maintain the validity and
enforceability of the Intellectual Property, except where the failure to so
protect, defend and maintain would not, in the aggregate, result in a Material
Adverse Effect, (ii) use all commercially reasonable efforts to detect
infringements of the Intellectual Property and promptly advise Lender in writing
of material infringements detected and (iii) not allow any of its Intellectual
Property to be abandoned, forfeited or dedicated to the public, except where
such abandonment, forfeiture or dedication would not, in the aggregate, result
in a Material Adverse Effect, without the written consent of Lender which shall
not be unreasonably withheld;
3.
<PAGE> 4
(g) Debtor shall promptly register the most recent version of
Debtor's material Copyrights, if not so already registered, as Lender may
reasonably request from time to time based on its review of the Quarterly Report
(as hereinafter defined) and shall, from time to time, execute and file such
other instruments, and take such further actions as Lender may reasonably
request from time to time to perfect or continue the perfection of Lender's
interest in the Intellectual Property Collateral;
(h) Debtor is not party, nor will it, without the prior written
consent of Bank, become party in the future, to any License or Contract included
in the Intellectual Property Collateral which, pursuant to its terms is not
assignable (except in the case of Borrower's customer contracts) or capable of
being encumbered;
(i) This Security Agreement creates, and in the case of after
acquired Intellectual Property Collateral, will create at the time Debtor first
has rights in such after acquired Intellectual Property Collateral, in favor of
Lender a valid and (upon taking appropriate actions) perfected first priority
security interest in the Intellectual Property Collateral in the United States
securing the payment and performance of all present or future indebtedness,
obligations and liabilities of Debtor to Lender, including, without limitation,
such indebtedness, obligations and liabilities under the Loan Agreement and the
other Loan Documents, upon making the filings referred to in SECTION 3(j) below,
subject only to Permitted Liens (as defined in the Loan Agreement);
(j) To its knowledge, except for, and upon, the filings with, as
applicable, (1) the United States Patent and Trademark Office, (2) the Register
of Copyrights and (3) the UCC Division of the applicable office of the Secretary
of State, necessary to perfect the security interests and assignment created
hereunder, and except as has been already made or obtained, no authorization,
approval or other action by, and no notice to or filing with, any United States
governmental authority or United States regulatory body is required either (a)
for the grant by Debtor of the security interest granted hereby or for the
execution, delivery or performance of this Security Agreement by Debtor in the
United States or (b) for the perfection in the United States or the exercise by
Lender of its rights and remedies hereunder;
(k) All information heretofore, herein or hereafter supplied to
Lender by or on behalf of Debtor with respect to the Intellectual Property
Collateral is accurate and complete in all material respects;
(l) Debtor shall not enter into any agreement that would materially
impair or conflict with Debtor's obligations hereunder without Lender's prior
written consent, which consent shall not be unreasonably withheld. For purposes
of this subsection, Debtor's entering into license agreements in the ordinary
course of business shall not be deemed to materially impair or conflict with
Debtor's obligations hereunder. Debtor shall not, without the prior written
consent of Lender, permit the inclusion in any material contract to which it
becomes a party of any provisions that could or might in any way prevent the
creation of a security interest in Debtor's rights and interests in any property
included within the definition of the Intellectual Property Collateral acquired
under such contracts, except that certain contracts may contain anti-assignment
provisions that could in effect prohibit the creation of a security interest in
such contracts; and
(m) Upon any executive officer of Debtor obtaining actual knowledge
thereof, Debtor will promptly notify Lender in writing of any event that
materially adversely affects the value of any Intellectual Property Collateral,
the ability of Debtor to dispose of any Intellectual Property Collateral or the
rights and remedies of Lender in relation thereto, including the levy of any
legal process against any of the Intellectual Property Collateral.
4.
<PAGE> 5
4. LENDER'S RIGHTS. Lender shall have the right, but not the obligation,
to take, at Debtor's sole expense, any actions that Debtor is required under
this Security Agreement to take but which Debtor fails to take, after fifteen
(15) days' notice to Debtor. Debtor shall reimburse and indemnify Lender for all
reasonable costs and reasonable expenses incurred in the reasonable exercise of
its rights under this SECTION 4.
5. INSPECTION RIGHTS. Debtor hereby grants to Lender and its employees,
representatives and agents the right to visit, during reasonable hours upon
prior reasonable and no less than three business days advance written notice to
Debtor, any of Debtor's plants and facilities that manufacture, install or store
products (or that have done so during the prior six-month period) that are sold
utilizing any of the Intellectual Property Collateral, and to inspect the
products and quality control records relating thereto upon reasonable written
notice to Debtor and as often as may be reasonably requested.
6. FURTHER ASSURANCES; ATTORNEY IN FACT.
(a) On a quarterly basis, Debtor agrees to deliver to Lender a
report, in form acceptable to Lender and certified by an officer of Debtor,
which lists all Intellectual Property that is material to the operation of
Debtor's business on an on-going basis, and in which Lender does not already
have a perfected security interest (the "Quarterly Report"), including, without
limitation, all titles, names or marks together with all relevant registration
and/or application numbers and registration and/or filing dates. Based upon
review of the Quarterly Report, Lender shall, in its reasonable discretion,
identify which Intellectual Property it deems material to the operation of
Debtor's business on an on-going basis or the value of the Intellectual Property
Collateral.
(b) On a continuing basis for the purpose of perfecting and
maintaining the perfection of Lender's security interest in all Intellectual
Property, Debtor will make, execute, acknowledge and deliver, and file and
record in the proper filing and recording places in the United States, all such
instruments, including appropriate financing and continuation statements and
collateral agreements and filings with the United States Patent and Trademark
Office and the Register of Copyrights, and take all such action as may
reasonably be necessary or advisable, or as reasonably requested by Lender,
which Lender reasonably identifies pursuant to SECTION 6(a) above as material to
the operation of Debtor's business on an on-going basis or the value of the
Intellectual Property Collateral, and otherwise to carry out the intent and
purposes of this Security Agreement, or for assuring and confirming to Lender
the grant or perfection of a security interest in all Intellectual Property
Collateral.
(c) Debtor hereby irrevocably appoints Lender as Debtor's
attorney-in-fact, with full authority in the place and stead of Debtor and in
the name of Debtor, from time to time in Lender's discretion, to take any action
and to execute any instrument which Lender may reasonably deem necessary or
advisable to accomplish the purposes of this Security Agreement, including (i)
to modify, in its reasonable discretion, this Security Agreement without first
obtaining Debtor's approval of or signature to such modification by amending
Exhibit A, Exhibit B or Exhibit C hereof, as appropriate, to include reference
to any material right, title or interest in any Intellectual Property acquired
by Debtor after the execution hereof or to delete any reference to any right,
title or interest in any Intellectual Property in which Debtor no longer has or
claims any right, title or interest, (ii) to file, in its reasonable discretion,
one or more financing or continuation statements and amendments thereto,
relative to any of the Intellectual Property Collateral without the signature of
Debtor where permitted by law and (iii) to transfer the Intellectual Property
Collateral into the name of Lender or a third party to the extent permitted
under the UCC provided that Lender agrees that it shall not exercise its powers
as attorney-in-fact under this SECTION 6 except upon the occurrence and during
the continuation of a Security Agreement Event of Default (as hereinafter
defined).
5.
<PAGE> 6
7. SECURITY AGREEMENT EVENTS OF DEFAULT. The occurrence of any of the
following shall constitute a "Security Agreement Event of Default" under this
Security Agreement:
(a) An Event of Default occurs under the Loan Agreement (as defined
therein) or a default occurs under any of the other Loan Documents; or
(b) Debtor breaches any warranty or agreement in any material
respect made by Debtor in this Security Agreement and, as to any breach that is
capable of cure, Debtor fails to cure such breach within twenty (20) days of the
occurrence of such breach if notice thereof has been given to Debtor.
8. REMEDIES. Upon the occurrence and during the continuance of a
Security Agreement Event of Default, Lender shall have the right to exercise all
the remedies of a secured party under the UCC, including, without limitation,
the right to require Debtor to assemble the Intellectual Property Collateral and
any tangible property in which Lender has a security interest and to make it
available to Lender at a place designated by Lender. Lender shall have a
nonexclusive, royalty free license or other right, solely pursuant to the
provisions of this SECTION 8, to use, without charge, the Intellectual Property
and any property of a similar nature as it pertains to the Intellectual Property
Collateral, to the extent reasonably necessary to permit Lender to exercise its
rights and remedies pursuant to this SECTION 8, including, without limitation,
the completion of production, advertising for sale and the sale of any
Intellectual Property Collateral and, in connection with Lender's exercise of
its rights hereunder, Debtor's rights under all licenses and all franchise
agreements which constitute Intellectual Property Collateral shall inure to the
benefit of Lender. Debtor will pay any expenses (including reasonable attorneys'
fees) incurred by Lender in connection with the exercise of any of Lender's
rights hereunder, including, without limitation, any expense incurred in
disposing of the Intellectual Property Collateral. All of Lender's rights and
remedies with respect to the Intellectual Property Collateral shall be
cumulative.
9. INDEMNITY. Debtor agrees to defend, indemnify and hold harmless
Lender and its officers, employees, and agents against: (a) all obligations,
demands, claims, and liabilities claimed or asserted by any other party in
connection with the transactions contemplated by this Security Agreement and (b)
all losses or expenses in any way suffered, incurred, or paid by Lender as a
result of or in any way arising out of, following or consequential to
transactions between Lender and Debtor, whether under this Security Agreement or
otherwise (including, without limitation, reasonable attorneys' fees and
reasonable expenses), except for losses arising from or out of Lender's gross
negligence or willful misconduct. If Lender obtains recovery of any of the
amounts that Debtor has paid to it pursuant to the indemnity set forth in the
section, then Lender shall promptly pay to Debtor the amount of such recovery.
10. SUCCESSORS AND ASSIGNS. This Security Agreement and all obligations
of Debtor hereunder shall be binding upon the successors and assigns of Debtor,
and shall, together with the rights and remedies of Lender hereunder, inure to
the benefit of Lender, any future holder of any Note and their respective
successors and assigns. No sales of participations, other sales, assignments,
transfers or other dispositions of any agreement governing or instrument
evidencing the indebtedness secured hereby or any portion thereof or interest
therein shall in any manner affect the security interest created herein and
granted to Lender hereunder.
11. REASSIGNMENT. At such time as Debtor shall completely satisfy all of
the obligations secured hereunder, Lender shall execute and deliver to Debtor
all deeds, assignments and other instruments as may be necessary or proper to
revest in Debtor full title to the property assigned hereunder, subject to any
disposition thereof which may have been made by Lender pursuant hereto.
6.
<PAGE> 7
12. NO FAILURE OR DELAY. No failure or delay on the part of Lender, in
the exercise of any power, right or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise thereof.
13. ATTORNEYS' FEES. If any action relating to this Security Agreement
is brought by either party hereto against the other party, the prevailing party
shall be entitled to recover reasonable attorneys' fees, costs and
disbursements.
14. AMENDMENTS. Except as otherwise provided herein, this Security
Agreement may be amended only by a written instrument signed by both parties
hereto.
15. COUNTERPARTS. This Security Agreement may be executed in any number
of counterparts, each of which when so delivered shall be deemed an original,
but all such counterparts shall constitute but one and the same instrument. Each
such Security Agreement shall become effective upon the execution of a
counterpart hereof or thereof by each of the parties hereto and telephonic
notification that such executed counterparts has been received by Debtor and
Lender.
16. JUDICIAL REFERENCE. The terms and provisions of SECTION 16 of the
Loan Agreement are incorporated herein by this reference and made a part hereof.
17. GOVERNING LAW; JURISDICTION; JURY WAIVER. This Security Agreement
shall be governed by, and construed in accordance with, the internal laws of the
State of California, without regard to principles of conflicts of law. Debtor
and Lender consent to the exclusive jurisdiction of any state or federal court
located in Santa Clara County, California. DEBTOR AND BANK EACH WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS SECURITY AGREEMENT AND ANY OTHER LOAN DOCUMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH
OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS.
18. CONFLICT. In the event of a conflict between any term and/or
provision contained in this Security Agreement with any term and/or provision
contained in the General Security Agreement, the term and/or provision of this
Security Agreement shall govern.
IN WITNESS WHEREOF, the parties hereto have executed this Security
Agreement on the day and year first above written.
LENDER DEBTOR
IMPERIAL CREDITCORP WEBSIDESTORY, INC.,
a California corporation
By: /s/ JIM RUTTER By: /s/ TERANCE A. KINNINGER
------------------------------- -----------------------------------
Printed Name: Jim Rutter Printed Name: Terance A. Kinninger
--------------------- -------------------------
Title: Title: Chief Financial Officer
---------------------------- --------------------------------
Address of Lender Address of Debtor
226 Airport Parkway 10182 Telesis Court, 6th Floor
San Jose, California 95110 San Diego, CA 92121
Attention: Randy Broberg,
General Counsel
7.
<PAGE> 8
EXHIBIT A
COPYRIGHTS
1. REGISTERED: List titles below or indicate "None"
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------
COPYRIGHTS
------------------------------------------------------------------------------------------
MARK COUNTRY DATE SERIAL #/ STATUS
FILED REG. #
------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
HITBOX, version 12/99 U.S. 1/5/00 Txu-912-518 Registered
------------------------------------------------------------------------------------------
HITBOX.COM U.S. 8/5/99 Txu-894-309 Registered
------------------------------------------------------------------------------------------
HITBOX.COM (interface website copyright) U.S. 11/26/99 Txu-907-376 Registered
------------------------------------------------------------------------------------------
STATMARKET.COM U.S. 7/29/99 Txu-894-293 Registered
------------------------------------------------------------------------------------------
WEBSIDESTORY.COM (website) U.S. 8/5/99 Txu-894-306 Registered
------------------------------------------------------------------------------------------
XY2K.COM U.S. 8/5/99 Txu-894-307 Registered
------------------------------------------------------------------------------------------
YEP.COM U.S. 8/5/99 Txu-894-308 Registered
------------------------------------------------------------------------------------------
</TABLE>
2. UNREGISTERED: List material titles below or indicate "None"
"None"
3. APPLICATIONS IN PROCESS: List titles, applicable dates, application
numbers, etc. below or indicate "None"
"None"
Exhibit A
<PAGE> 9
EXHIBIT B
U.S. PATENTS AND PATENT APPLICATIONS
(List titles below or indicate "None")
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------------
PATENTS AND PATENT APPLICATIONS
---------------------------------------------------------------------------------------------------------------------
MARK COUNTRY DATE SERIAL #/ STATUS
FILED REG. #
---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Internet Website Traffic Analysis U.S. 6/4/99 09/326,475 Assignment filed 5/5/5/00
---------------------------------------------------------------------------------------------------------------------
Internet Website Traffic Flow Analysis PCT 4/17/00 PCT/US00/10 1/4/01 - Chapter II due
330*
2/4/01 - National Filings
due (20 mos.)
12/4/01 - National Filings
due (30 mos.)
Power of Attorney filed 5/24/00 (in
response to Invitation to Correct
Defects).
---------------------------------------------------------------------------------------------------------------------
E-Mail Tracking U.S 5/10/00 60/203,435 Provisional Application filed
5/10/00
Utility Application due 5/10/01
---------------------------------------------------------------------------------------------------------------------
Intelligent Delivery System for U.S. 2/9/00 09/500,738 6/7/00 - Response to Notice to File
Directed Content Missing Parts due
2/9/01 - Foreign Filing due
---------------------------------------------------------------------------------------------------------------------
Intelligent Delivery System for PCT 4/17/00 PCT/US00/ 9/9/01 - Chapter II due
Directed Content 10348**
10/9/01 - National Filings
due (20 mos.)
8/9/02 - National Filings
due (30 mos.)
Power of Attorney filed 5/23/00 (in
response to Invitation to Correct
Defects).
Assignment filed 5/24/00
---------------------------------------------------------------------------------------------------------------------
Internet Web Site Traffic Analysis for U.S. 3/30/00 09/539,225 3/30/00 - filed without signed
Wireless Devices power of attorney (awaiting Notice
to File Missing Parts of
Application).
6/30/00 - IDS due.
Assignment filed 5/5/00
---------------------------------------------------------------------------------------------------------------------
Internet Web Site Traffic Analysis for PCT 4/17/00 PCT/US00/ Chapter II due 10/30/01
Wireless Devices 10349**
National Filings due 11/30/01 (20 mos.)
National Filings due 9/30/02 (30 mos.)
---------------------------------------------------------------------------------------------------------------------
</TABLE>
* U.S. equivalent: serial number 09/326,475
** U.S. equivalent: serial number 09/500,738
*** U.S. equivalent: serial number 09/539,225
Exhibit B
<PAGE> 10
EXHIBIT C
U.S. TRADEMARKS AND TRADEMARK APPLICATIONS
(List marks below or indicate "None")
UNREGISTERED TRADEMARKS: List marks below or indicate "None."
TRADEMARKS AND TRADEMARK APPLICATIONS
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------
MARK COUNTRY DATE SERIAL #/ STATUS
FILED REG. #
-----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
HITBOX U.S. 5/30/97 2,174,844 Registered
-----------------------------------------------------------------------------------------------------
HITBOX Canada 3/5/99 1,007,612 Filed
-----------------------------------------------------------------------------------------------------
HITBOX European 2/27/98 000748409 Registered
Union
-----------------------------------------------------------------------------------------------------
HITBOX Japan 5/1/98 4375254 Registered
-----------------------------------------------------------------------------------------------------
STATMARKET U.S. 1/27/99 2,338,002 Registered
-----------------------------------------------------------------------------------------------------
STATMARKET Canada 7/8/99 1,021,829 Filed
-----------------------------------------------------------------------------------------------------
STATMARKET European 7/8/99 11235365 Filed
Union
-----------------------------------------------------------------------------------------------------
STATMARKET Japan 7/12/99 11-62717 Filed
-----------------------------------------------------------------------------------------------------
THE PULSE OF THE INTERNET U.S. 10/28/99 75/833,996 Filed
-----------------------------------------------------------------------------------------------------
THE PULSE OF THE INTERNET European 4/28/00 [pending] Filed
Union
-----------------------------------------------------------------------------------------------------
TRAFFIC U.S. 3/5/98 75/444,968 Filed
-----------------------------------------------------------------------------------------------------
W(Stylized) U.S. N/A N/A Docket
-----------------------------------------------------------------------------------------------------
WEB SIDE STORY U.S. 5/14/97 2,174,768 Registered
-----------------------------------------------------------------------------------------------------
WED SIDE STORY European 2/27/98 000757393 Filed
Union
-----------------------------------------------------------------------------------------------------
WEB SIDE STORY Japan 5/1/98 10(1998)-36372 Registered
-----------------------------------------------------------------------------------------------------
WEB SIDE STORY Canada 3/5/99 1,007,611 Filed
-----------------------------------------------------------------------------------------------------
YEP Canada 9/1/99 1,027,543 Filed
-----------------------------------------------------------------------------------------------------
YEP U.S. 3/3/99 75/653,048 Filed
-----------------------------------------------------------------------------------------------------
</TABLE>
Exhibit C
<PAGE> 11
<TABLE>
<S> <C> <C> <C> <C>
-----------------------------------------------------------------------------------------------------
YEP European 9/1/99 1296797 Filed
Union
-----------------------------------------------------------------------------------------------------
YEP Japan 9/1/99 11-79318 Filed
-----------------------------------------------------------------------------------------------------
YEP.COM and Design U.S. 7/14/99 2,345,610 Registered
-----------------------------------------------------------------------------------------------------
YEP.COM and Design European 12/20/99 1432699 Filed
Union
-----------------------------------------------------------------------------------------------------
</TABLE>
UNAPPLIED FOR, COMMON LAW: List marks below or indicate "None."
1. "The "W" logo."
Exhibit C