Warrant to Purchase Series D Preferred Stock - WebSideStory Inc. and Jeff Lunsford
THIS WARRANT AND THE SERIES D PREFERRED STOCK ISSUABLE UPON THE EXERCISE HEREOF
HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY APPLICABLE STATE LAW, AND NO INTEREST HEREIN OR THEREIN MAY BE
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION AND
QUALIFICATION WITHOUT AN OPINION OF LEGAL COUNSEL FOR THE HOLDER ACCEPTABLE TO
LEGAL COUNSEL FOR THE COMPANY THAT SUCH REGISTRATION AND QUALIFICATION ARE NOT
REQUIRED.
WARRANT TO PURCHASE SERIES D PREFERRED STOCK
WebsideStory, Inc.
Expiring March 31, 2013
This Warrant, made as of April 1, 2003, certifies that Jeff Lunsford (the
"EXECUTIVE") is entitled, subject to the terms set forth below, to subscribe for
and purchase from WebSideStory, Inc., a Delaware corporation (the "COMPANY"),
Forty-Eight (48) shares (the "WARRANT SHARES") of the Company's Series D
Convertible Redeemable Participating Preferred Stock ("SERIES D PREFERRED
STOCK"), at a price of $0.001 per share (the "EXERCISE PRICE"). This Warrant may
be exercised according to the schedule set forth in Section 1 and during the
period beginning on April 1, 2004 and ending at 5:00 p.m., San Diego, California
time, on March 31, 2013 (the "EXERCISE PERIOD"). The Exercise Price and number
of shares for which this Warrant is exercisable shall be subject to adjustment
as provided herein.
This Warrant is subject to the following provisions, terms and conditions:
1. Exercise of Warrant. Except as set forth in the acceleration
provisions set forth in Section 13 below, subject to Executive's continued
employment with the Company, the right of the holder of this Warrant (the
"HOLDER") to exercise the Warrant will vest (i) with respect to twenty-five
percent (25%) of the Warrant Shares (or 12 shares) on April 1, 2004 and (ii)
with respect to 2.0833% of the Warrant Shares (or 1 share) for each month of
Executive's continued employment thereafter until the aggregate number of vested
Warrant Shares equals 48.
2. Method of Exercise. The Holder may exercise the Warrant by the
surrender of this Warrant, together with the Notice of Exercise attached hereto
duly completed and executed, at the office of the Company in San Diego,
California (or such other office or agency of the Company as it may designate by
notice in writing to Holder at the address thereof appearing on the books of the
Company), and upon payment in full of the aggregate Exercise Price of the shares
thereby purchased (by cash or by cashier's check payable to the order of the
Company).
Alternatively, the Holder may elect to receive shares equal to the
value (as determined below) of this Warrant by surrender of this Warrant at the
principal office of the Company together with notice of such election, in which
event the Company shall issue to the holder the number of shares determined by
use of the following formula:
X = Y(A-B)
-----
A
Where: X = the number of shares to be issued to the Holder.
Y = the number of shares subject to this Warrant (as
adjusted to the date of such calculation).
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A = the fair market value of one (1) share on the date of
exercise.
B = the Exercise Price (as adjusted to the date of such
calculation).
The Holder shall be entitled to receive a certificate for the number
of Warrant Shares so purchased; provided that the Company will place on each
certificate a legend substantially the same as that appearing on this Warrant,
in addition to any legend required by an applicable state or federal law or
agreement to which Holder is a party with respect to such shares. If this
Warrant is exercised in part, the Company will issue to Holder a new Warrant
upon the same terms as this Warrant but for the balance of the Warrant Shares
for which this Warrant remains exercisable. The Company agrees that if Holder is
entitled to exercise this Warrant at the time of the surrender of this Warrant
and payment in full of the aggregate Exercise Price, the shares so purchased
shall be deemed to be issued to Holder as the record owner of such shares as of
the close of business on the later of the date upon which (i) the Holder
actually surrenders this Warrant to the Company, and (ii) payment in full of the
aggregate Exercise Price owed with respect to such shares being exercised is
received by the Company.
Certificates for shares purchased hereunder shall be registered in
the name of the Holder and delivered to Holder within a reasonable time after
the date on which this Warrant shall have been exercised as aforesaid.
The Company covenants that all shares of Series D Preferred Stock
which may be issued upon the exercise of rights represented by this Warrant
will, upon exercise of the rights represented by this Warrant, be fully paid and
nonassessable and free from all preemptive rights, taxes, liens and charges in
respect of the issue thereof (other than taxes in respect of any transfer
occurring contemporaneously with such issue)
No fractional shares or scrip representing fractional shares shall
be issued upon the exercise of this Warrant.
3. Charges, Taxes and Expenses. The Holder acknowledges that the Holder
is solely responsible for, and agrees to make adequate provision for any sums
required to satisfy the federal, state, local and foreign tax obligations of the
Holder, if any, which arise in connection with the Warrant, including, without
limitation, obligations arising upon (i) the exercise, in whole or in part, of
the Warrant, (ii) the transfer, in whole or in part, of any shares acquired upon
exercise of the Warrant, (iii) the operation of any law or regulation providing
for the imputation of interest, or (iv) the lapsing of any restriction with
respect to any shares acquired upon exercise of the Warrant.
4. Restrictions on Grant of the Warrant and Issuance of Shares. The
grant of the Warrant and the issuance of shares of stock upon the exercise of
the Warrant shall be subject to compliance with all applicable requirements of
federal, state or foreign law with respect to such securities. The Warrant may
not be exercised if the issuance of shares of stock upon exercise would
constitute a violation of any applicable federal, state or foreign securities
laws or other law or regulations or the requirements of any stock exchange or
market system upon which the stock may then be listed. In addition, the Warrant
may not be exercised unless (i) a registration statement under the Securities
Act of 1933, as amended (the "SECURITIES ACT"), shall at the time of exercise of
the Warrant be in effect with respect to the shares issuable upon exercise of
the Warrant or (ii) in the opinion of legal counsel to the Company or the
Executive (in a form reasonably acceptable to the Company), the shares issuable
upon exercise of the Warrant may be issued without registration under the
Securities Act. THE HOLDER IS CAUTIONED THAT THE WARRANT MAY NOT BE EXERCISED
UNLESS THE FOREGOING CONDITIONS ARE SATISFIED. ACCORDINGLY, THE HOLDER MAY NOT
BE ABLE TO EXERCISE THE WARRANT WHEN DESIRED EVEN THOUGH THE WARRANT IS VESTED.
The inability of the
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Company to obtain from any regulatory body having jurisdiction the authority, if
any, necessary to the lawful issuance and sale of any shares subject to the
Warrant shall relieve the Company of any liability in respect of the failure to
issue or sell such shares as to which such requisite authority shall not have
been obtained. As a condition to the exercise of the Warrant, the Company may
require the Holder to satisfy any qualifications that may be necessary or
appropriate, to evidence compliance with any applicable law or regulation and to
make any representation or warranty with respect thereto as may be reasonably
requested by the Company.
5. Rights As A Stockholder, Employee or Consultant. The Holder shall
have no rights as a stockholder with respect to any shares covered by the
Warrant until the date of the issuance of a certificate for the shares for which
the Warrant has been exercised (as evidenced by the appropriate entry on the
books of the Company or of a duly authorized transfer agent of the Company). No
adjustment shall be made for dividends, distributions or other rights for which
the record date is prior to the date such certificate is issued, except as
provided in Section 11. If the Holder is an employee, the Holder understands and
acknowledges that the Holder's employment is "at will" and may be terminated at
any time by the Holder or the Company with or without cause. Nothing in this
Warrant shall confer upon the Holder any right to continue in the service of the
Company or interfere in any way with any right of the Holder or the Company to
terminate the Holder's service as an employee or consultant, as the case may be,
at any time.
6. Registry of Warrant. The Company shall maintain at the
above-mentioned office or agency a registry showing the name and address of
Holder. This Warrant may be surrendered for exercise, in accordance with its
terms, at such office or agency of the Company, and the Company shall be
entitled to rely in all respects, prior to written notice to the contrary, upon
such registry.
7. No Transfer of Warrant. Except for Permitted Transfers, this Warrant
and all rights hereunder are not transferable, in whole or in part, by Holder
and shall be exercisable only by Holder. "PERMITTED TRANSFERS" shall include
Executive's sale or assignment, with or without consideration, of this Warrant
or Executive's interests under this Warrant to any spouse or member of
Executive's immediate family, or to a custodian, trustee (including a trustee of
a voting trust), executor, or other fiduciary for the account of the Executive's
spouse or members of the Executive's immediate family, or to a trust for the
Executive's own self, or a charitable remainder trust (except any donation to a
charitable trust designed specifically to circumvent this right); provided, that
each such transferee or assignee, prior to the completion of the sale, transfer,
or assignment shall have executed documents assuming the obligations of Holder
under this Warrant with respect to the transferred interest in the Warrant.
8. Loss, Theft, Destruction or Mutilation of Warrant. Upon receipt by
the Company of evidence satisfactory to it of the loss, theft, destruction or
mutilation of this Warrant, and in the case of any such loss, theft or
destruction upon receipt of a bond of indemnity or security in such form and
amount as shall be satisfactory to the Company, or in the event of such
mutilation upon surrender and cancellation of the Warrant, the Company will make
and deliver a new Warrant of like tenor (but with no rights or obligations not
otherwise provided herein) and dated as of such cancellation, in lieu of this
Warrant.
9. Saturdays, Sundays, Holidays, etc. If the last or appointed day for
the taking of any action or the expiration of any right required or granted
herein shall be a Saturday or a Sunday or shall be a legal holiday, then such
action may be taken or such right may be exercised on the next day not a
Saturday, Sunday or legal holiday.
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10. Distributions. No adjustment on account of cash dividends or other
distributions or interest on the Warrant Shares or underlying common stock will
be made to the number, Exercise Price or class of shares of stock subject to the
Warrant purchasable hereunder.
11. Adjustment of Warrant Shares and Exercise Price. In case the Company
shall at any time after the date of grant of this Warrant subdivide (by way of a
stock split) or declare a stock dividend or combine the outstanding shares of
Series D Preferred Stock as a class, the Exercise Price shall forthwith be
proportionately decreased in the case of a subdivision or stock dividend or
increased in the case of a combination and the number of Warrant Shares
deliverable upon the exercise of this Warrant shall be determined by (i)
dividing the Exercise Price prior to such adjustment by the Exercise Price as
adjusted, and (ii) multiplying the resulting quotient by the number of shares of
Warrant Shares deliverable upon exercise of this Warrant immediately prior to
such adjustment.
12. Reservation and Issuance of Shares. The Company will at all times
keep reserved for issuance upon the exercise of this Warrant, the number of
shares of Series D Preferred Stock then issuable upon the exercise hereof and
the corresponding number of shares of the Company's common stock issuable the
conversion of such Series D Preferred Stock. The Company covenants that its
issuance of this Warrant shall constitute full authority to its officers who are
charged with the duty of executing stock certificates to execute and issue the
necessary certificates for shares of Series D Preferred Stock upon the exercise
as provided herein of the purchase rights under this Warrant.
13. Acceleration of Exercise. Upon a Change of Control (as defined
below), Holder's right to purchase Warrant Shares shall accelerate with respect
to one hundred percent (100%) of the Warrant Shares unvested on the effective
date of such Change of Control. In the event the Company terminates Executive's
employment without Cause (as defined below) or Executive terminates his
employment for Good Reason (as defined below), Holder's right to purchase
Warrant Shares shall accelerate with respect to fifty percent (50%) of the
Warrant Shares unvested on the effective date of termination; provided that if
Executive's employment is terminated by the Company without Cause or voluntarily
by Executive for Good Reason within the period beginning one hundred thirty-five
(135) days prior to the date the Company enters into an agreement for a Change
of Control and ending on the date the Company enters into an agreement for a
Change of Control, Holder's right to purchase Warrant Shares shall accelerate
with respect to one hundred percent (100%) of the Warrant Shares unvested on the
effective date of such Change of Control. Thereafter, in the event that,
following Executive's relocation to California, the Company terminates
Executive's employment for (i) Executive's failure to perform the essential
functions of Executive's position, with reasonable accommodation, due to a
mental or physical disability, or (ii) Executive's death, Holder's right to
purchase Warrant Shares shall accelerate with respect to twenty-five percent
(25%) of the Warrant Shares unvested on the date of such termination. In the
event of the termination of the Executive's employment for any reason, the
Holder shall have a period of one hundred forty (140) days from the date of such
termination in which to exercise this Warrant with respect to any vested Warrant
Shares. Thereafter, any right of Holder to purchase Warrant Shares shall
terminate.
(a) "CAUSE" is defined as: (i) acts or omissions constituting
gross negligence, recklessness or willful misconduct on the part of Executive
with respect to Executive's obligations or otherwise relating to the business of
Company; (ii) Executive's material breach of this Agreement or any other
agreement between Executive and Company; (iii) Executive's conviction or entry
of a plea of nolo contendere for fraud or embezzlement, or any felony or crime
of moral turpitude; or (iv) Executive's willful neglect of duties. In the case
of subparts (i), (ii) and (iv), unless the deficiency cannot reasonably be
cured, no Cause shall exist if Executive cures such deficiency within ten (10)
business days after his receipt of notice from the Company. Executive shall have
an opportunity during any such 10-day period to appear before the Board, with
his counsel, and present such evidence as he may deem appropriate.
<PAGE>
Any final decision that Cause exists, after notice and opportunity to present as
described above, if applicable, shall be made only by a majority of the Board.
(b) "CHANGE OF CONTROL" is defined as (A) a merger or
consolidation of the Company with or into another corporation or other entity
(with respect to which less than a majority of the outstanding voting power of
the surviving or consolidated corporation is held by persons who are
shareholders of the Corporation immediately prior to such event); (B) the sale
or transfer of all or substantially all of the properties and assets of the
Company; (C) any purchase by any party (or group of affiliated parties) of
shares of capital stock of the Company (either through a negotiated stock
purchase or a tender for such shares), the effect of which is that such party
(or group of affiliated parties) that did not beneficially own a majority of the
voting power of the outstanding shares of capital stock of the Company
immediately prior to such purchase beneficially owns at least a majority of such
voting power immediately after such purchase; (D) the redemption or repurchase
of shares representing a majority of the voting power of the outstanding shares
of capital stock of the Company; or (E) of any other change of control of fifty
percent (50%) or more of the outstanding voting power of the Company in a single
transaction or series of related transactions, but for purposes of this
subsection (E) excluding an underwritten public offering by the Company of
shares of Common Stock or other securities.
(c) "GOOD REASON" shall be deemed to exist following the
occurrence of any of the following events: (i) a reduction in Executive's title
or position or an assignment to Executive of operational authority or duties
which are materially inconsistent with the usual and customary operational
authority and duties of a person in Executive's position in similarly-situated
companies, (ii) a reduction in Executive's Base Salary or Performance Bonus
target or any failure to pay any compensation or benefits earned by Executive,
provided that Good Reason shall not be deemed for such non-payment unless
Executive provides written notice to the Company thereof and following a
reasonable cure period, or (iii) the Company's requiring Executive to relocate
to any place outside a fifty (50) mile radius of the Company's current
headquarters.
14. Lock-Up Agreement. The Holder hereby agrees that in the event of any
underwritten public offering of stock, including an initial public offering of
stock, made by the Company pursuant to an effective registration statement filed
under the Securities Act, the Holder shall not offer, sell, contract to sell,
pledge, hypothecate, grant any warrant to purchase or make any short sale of, or
otherwise dispose of any shares of stock of the Company or any rights to acquire
stock of the Company for such period of time from and after the effective date
of such registration statement as may be established by the underwriter for such
public offering; provided, however, that such period of time shall not exceed
one hundred eighty (180) days from the effective date of the registration
statement to be filed in connection with such public offering. The foregoing
limitation shall not apply to shares registered in the public offering under the
Securities Act.
15. Restrictions on Transfer of Shares. Neither this Warrant nor any
shares acquired upon exercise of this Warrant may be sold, exchanged,
transferred (including, without limitation, any transfer to a nominee or agent
of the Holder), assigned, pledged, hypothecated or otherwise disposed of,
including by operation of law, in any manner which violates any of the
provisions of this Warrant, and any such attempted disposition shall be void.
The Company shall not be required (a) to transfer on its books this Warrant or
any shares which will have been transferred in violation of any of the
provisions set forth in this Warrant or (b) to treat as the holder of this
Warrant or owner of such shares or to accord the right to vote as such owner or
to pay dividends to any transferee to whom this Warrant or such shares will have
been so transferred.
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16. Binding Effect. Subject to the restrictions on transfer set forth
herein, this Warrant shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, executors, administrators, successors
and assigns.
17. Termination or Amendment. The Board may terminate or amend this
Warrant at any time; provided, however, no such termination or amendment may
adversely affect the rights of the Holder pursuant to this Warrant or any
unexercised portion hereof without the consent of the Holder unless such
termination or amendment is necessary to comply with any applicable law or
government regulation. No amendment or addition to this Warrant shall be
effective unless in a writing signed by the Holder and the Company.
18. Notices. All notices requests, reports and other communications
pursuant hereto shall be in writing, either by letter (delivered by hand or
commercial delivery service or sent by certified mail, return receipt requested)
or facsimile, addressed as follows:
If to the Company:
WebsideStory, Inc.
10182 Telesis Court, Sixth Floor
San Diego, CA 92121
Attention: Chief Executive Officer
Facsimile: (858) 546-0480
with a copy to (which shall not constitute notice):
Gray Cary Ware & Freidenrich LLP
1221 S. MoPac Expressway, Suite 400
Austin, Texas 78746
Attention: John Gilluly
Facsimile: (512) 457-7001
If to the Holder:
Jeff Lunsford
10182 Telesis Court, Sixth Floor
San Diego, CA 92121
Attention: Chief Executive Officer
Facsimile: (858) 546-0480
Any notice, request or communication hereunder shall be deemed to have been
given on the day on which it is delivered by hand to such party at its address
specified above, or, if sent by certified mail, return receipt requested,
postage prepaid, on the third business day following the date it was deposited
in the mail, or in the case of facsimile notice, when transmitted addressed as
aforesaid, confirmation received, if the notice is also delivered by hand or
mail in the manner described above. Any party may change the person or address
to whom or which notices are to be given hereunder, by notice duly given
hereunder; provided, however, that any such notice shall be deemed to have been
given hereunder only when actually received by the party to which it is
addressed.
19. Integration; Interpretation. This Warrant constitutes the entire
understanding and agreement of the Holder and the Company with respect to the
subject matter contained herein and therein and there are no agreements,
understandings, restrictions, representations, or warranties among the Holder
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and the Company with respect to such subject matter other than those as set
forth or provided for herein or therein. To the extent contemplated herein or
therein, the provisions of this Warrant shall survive any exercise of the
Warrant and shall remain in full force and effect. In the event any ambiguity or
question of intent or interpretation arises with respect to this Warrant, this
Warrant shall be construed as if drafted jointly by the Company and the Holder,
and no presumption or burden of proof shall arise favoring or disfavoring any
party by virtue of the authorship of any of the provisions of this Warrant.
20. Applicable Law. This Warrant shall be governed by the laws of the
State of Delaware as such laws are applied to agreements between Delaware
residents entered into and to be performed entirely within the State of
Delaware.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed in its name
by its duly authorized officer.
WEBSIDESTORY, INC.
Dated: Feb. 26, 2004 By: /s/Rand Schulman
-------------------------------------
Name: Rand Schulman
Title: CMO
ADDRESS: 10182 Telesis Court, 6th Floor
San Diego, CA 92121
<PAGE>
NOTICE OF EXERCISE
TO: WEBSIDESTORY, INC.
1. Exercise. The undersigned Holder hereby elects to purchase _________
shares (the "SHARES") of Series D Preferred Stock of WebsideStory, Inc.,
pursuant to the terms of the attached Warrant, and tenders herewith payment in
full of the aggregate Exercise Price for the Shares. Please issue a certificate
or certificates representing said shares of Series D Preferred Stock in the name
of the undersigned.
2. Payment. Enclosed herewith is full payment in the aggregate amount
of $_____________ (representing $_______ per share) for the Shares in the manner
set forth in the Warrant.
3. Binding Effect. I agree that the Shares are being acquired in
accordance with and subject to the terms, provisions and conditions of the
Warrant, to all of which I hereby expressly assent. This Agreement shall inure
to the benefit of and be binding upon the my heirs, executors, administrators,
successors and assigns.
4. Transfer. I am aware that Rule 144, promulgated under the Securities
Act of 1933, which permits limited public resale of securities acquired in a
nonpublic offering, is not currently available with respect to the Shares and,
in any event, is available only if certain conditions are satisfied. I
understand that any sale of the Shares that might be made in reliance upon Rule
144 may only be made in limited amounts in accordance with the terms and
conditions of such rule and that a copy of Rule 144 will be delivered to me upon
request.
My address of record is:
_________________________________________________________________
_________________________________________________________________
My Social Security Number is: _________________________________________
I acknowledge that I have been advised to consult with a tax advisor prior to
the exercise of the Warrant regarding the tax consequences to me of exercising
the Warrant.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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I understand that I am purchasing the Shares pursuant to the terms of the
Warrant, a copy of which I have received and carefully read and understand.
Very truly yours,
__________________________________________
(Signature)
__________________________________________
(Holder's Name Printed)
Receipt of the above is hereby acknowledged.
WEBSIDESTORY, INC.
By: _______________________________
Print Name:____________________
Title:_________________________
Dated:_________________________
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