EXHIBIT 10.2
WEBSIDESTORY, INC.
SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Second Amended and Restated Registration Rights Agreement (this
"AGREEMENT") dated as of February 1, 2006 is entered into by and among
WebSideStory, Inc., a Delaware corporation (the "COMPANY"), certain investors as
listed on Schedule A attached hereto (each an "EXISTING INVESTOR," and
collectively, the "EXISTING INVESTORS"), certain entities and individuals as
listed on Schedule B attached hereto (each an "AVIVO INVESTOR," and
collectively, the "AVIVO INVESTORS"), and certain entities and individuals as
listed on Schedule C attached hereto (each a "VS INVESTOR," and collectively,
the "VS INVESTORS," and together with the Existing Investors and the Avivo
Investors, the "INVESTORS").
RECITALS
WHEREAS, the Company and the Existing Investors entered into that certain
Registration Rights Agreement dated June 18, 1999, as amended on June 30, 2000,
December 12, 2000, March 2, 2001, July 21, 2004 and September 16, 2004
(collectively, the "ORIGINAL AGREEMENT"), under which the Company granted
certain registration rights to the Existing Investors;
WHEREAS, the Company, the Existing Investors and the Avivo Investors
entered into that certain Amended and Restated Registration Rights Agreement
dated May 4, 2005 (the "AMENDED AND RESTATED AGREEMENT"), under which the
Company granted certain registration rights to the Avivo Investors;
WHEREAS, the Company, VS Acquisition, LLC, a Delaware limited liability
company and a direct, wholly owned subsidiary of the Company ("MERGER SUB"), and
Visual Sciences, LLC, a Delaware limited liability company ("VS") are entering
into an Agreement and Plan of Merger, of even date herewith (as it may be
amended from time to time pursuant to the terms thereof, the "MERGER
AGREEMENT"), which provides for the merger (the "MERGER") of VS with and into
Merger Sub, in accordance with the terms of the Merger Agreement;
WHEREAS, as a condition to consummating the Merger, the Company and the
undersigned Existing Investors and Avivo Investors are required to enter into
this Agreement to grant the VS Investors certain registration rights hereunder;
WHEREAS, the Amended and Restated Agreement provides that an amendment of
the Amended and Restated Agreement may be effected by the written consent of the
Company and investors holding a majority of the Registrable Securities (as such
term is defined in the Amended and Restated Agreement) thereunder;
WHEREAS, the Amended and Restated Agreement provides that the Company may
not grant registration rights to third parties that are on a parity with the
registration rights granted under the Amended and Restated Agreement without the
consent of a Majority Interest (as such term is defined in the Amended and
Restated Agreement) of the Existing Investors;
WHEREAS, the undersigned Existing Investors constitute holders of not less
than a Majority Interest of the Existing Investors and the undersigned Existing
Investors and Avivo Investors constitute holders of not less than a majority of
the Registrable Securities under the Amended and Restated Agreement, and
therefore, are entitled to bind all other holders of Registrable Securities who
are parties to the Amended and Restated Agreement; and
WHEREAS, the Company and the undersigned Existing Investors and Avivo
Investors hereby agree that the Amended and Restated Agreement shall be
superseded and replaced in its entirety by this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"BOARD OF DIRECTORS" means the Board of Directors of the Company.
"COMMISSION" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Securities
Act and the Exchange Act.
"COMMON STOCK" shall mean the common stock of the Company and any other
securities into which or for which such common stock may be converted or
exchanged pursuant to a plan of recapitalization, reorganization, merger, sale
of assets or otherwise.
"COMPANY" shall refer to the Company and any successor or successors
thereto.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended,
or any similar successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"MAJORITY INTEREST" means the Existing Investors holding not less than a
majority in interest in the outstanding Registrable Securities held by all
Existing Investors.
"PERSON" shall mean an individual, a corporation, a partnership, a joint
venture, a trust, an unincorporated organization, a limited liability company or
partnership, a government and any agency or political subdivision thereof.
"REGISTRABLE SECURITIES" shall mean (i) with respect to the Existing
Investors and Avivo Investors, any shares of Common Stock that constituted
Registrable Securities pursuant to the terms of the Amended and Restated
Agreement, (ii) with respect to the VS Investors, the shares of Common Stock (x)
issuable pursuant to the Merger Agreement and originally held in escrow pursuant
thereto or (y) issuable upon exercise of the Parent Warrants (as such term is
defined in the Merger Agreement) issued pursuant to Sections 3.1(a)(ii) and
3.3(a)(ii) of the Merger Agreement, and (iii) any other securities issued and
issuable with respect to any such shares of
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Common Stock described in clauses (i) and (ii) above by way of a stock dividend
or stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization; provided, however, that
notwithstanding anything to the contrary contained herein, "REGISTRABLE
SECURITIES" shall not at any time include any securities (i) registered and sold
pursuant to the Securities Act, (ii) sold to the public pursuant to Rule 144,
(iii) which could then be sold in their entirety pursuant to Rule 144(k) without
limitation or restriction, (iv) shares of Common Stock issued upon exercise of
stock options or issued upon restricted stock grants or (v) shares acquired in
open market transactions.
"REGISTRATION EXPENSES" shall mean the expenses so described in Section 6
hereof.
"RULE 144" shall mean Rule 144 promulgated under the Securities Act (or any
comparable successor rules).
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or any
similar successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
2. Demand Registrations.
(a) At any time after the date hereof, (x) a Majority Interest or (y) VS
Investors holding a majority of the Registrable Securities held by all VS
Investors may notify the Company that they intend to offer or cause to be
offered for public sale all or any portion of their Registrable Securities
(representing offering proceeds aggregating not less than $10 million) in the
manner specified in such request. Upon receipt of such request, the Company
shall promptly deliver notice of such request to all Persons holding Registrable
Securities who shall then have thirty (30) days to notify the Company in writing
of their desire to be included in such registration. If the request for
registration contemplates an underwritten public offering, the Company shall
state such in the written notice and in such event the right of any Person to
participate in such registration shall be conditioned upon their participation
in such underwritten public offering and the inclusion of their Registrable
Securities in the underwritten public offering to the extent provided herein.
The Company shall expeditiously prepare and file, and use its reasonable best
efforts to cause to become effective, the registration statement for all
Registrable Securities whose holders request participation in such registration
under the Securities Act and to qualify such Registrable Securities for sale
under any state blue sky law; provided, however, that the Company shall not be
required to effect registration pursuant to a request under this Section
2 more than two (2) times pursuant to (x) above or one (1) time pursuant to (y)
above for the holders of the Registrable Securities as a group. Notwithstanding
anything to the contrary contained herein, if the Company receives a request for
registration under this Section 2, then (i) the Company may advise the
requesting Investors, within fifteen (15) days of its receipt of such request,
that it intends to file a registration statement for the primary issuance of
securities in an underwritten public offering, and (ii) assuming that the
Company files such registration statement within seventy-five (75) days of its
receipt of such request, the Company's registration obligations under this
Section 2 shall not apply with respect to such request and no additional request
may be made under this Section 2 within one hundred eighty (180) days after the
effective date of such registration statement. In addition, the Company may
postpone the filing or the effectiveness of any registration statement pursuant
to this Section
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2 for a reasonable time period, provided that such postponements
shall not exceed one hundred twenty (120) days in the aggregate during any
twelve (12) month period, if (i) the Company has been advised by legal counsel
that such filing or effectiveness would require disclosure of a material
financing, acquisition or other corporate transaction or development, and the
Board of Directors of the Company determines in good faith that such disclosure
is not in the best interests of the Company and its stockholders or (ii) the
Board of Directors of the Company determines in good faith that there is a valid
business purpose or reason for delaying filing or effectiveness. A registration
will not count as a requested registration under this Section 2(a) until the
registration statement relating to such registration has been declared effective
by the Commission at the request of the initiating holders and remained
effective for the lesser of (i) the period during which all Registrable
Securities registered thereunder have been sold or (ii) 45 days; provided,
however, that, if a majority in interest of the participating holders of
Registrable Securities shall request, in writing, that the Company withdraw a
registration statement which has been filed under this Section 2(a) but not yet
been declared effective, a majority in interest of such holders may thereafter
request the Company to reinstate such registration statement, if permitted under
the Securities Act, or to file another registration statement, in accordance
with the procedures set forth herein.
(b) If a requested registration pursuant to Section 2(a) involves an
underwritten public offering and the managing underwriter of such offering
determines in good faith that the number of securities sought to be offered
should be limited due to market conditions, then the number of securities to be
included in such underwritten public offering shall be reduced to a number
deemed satisfactory by such managing underwriter, provided that the shares to be
excluded shall be determined in the following sequence: (i) first, securities
held by any other Persons (other than the Investors holding Registrable
Securities) not having either registration rights or contractual, incidental
"piggy back" rights to include such securities in the registration statement,
(ii) second, shares sought to be registered by the Company, and (iii) third,
Registrable Securities, it being understood that no shares shall be registered
for the account of the Company or any shareholder other than the Investors
unless all Registrable Securities for which Investors have requested
registration have been registered. If there is a reduction of the number of
Registrable Securities pursuant to clauses (i) or (iii), such reduction shall be
made on a pro rata basis (based upon the aggregate number of shares of
Registrable Securities held by the holders in each tranche and subject to the
priorities set forth in the preceding sentence).
(c) With respect to a request for registration pursuant to Section 2(a) which is
for an underwritten public offering, the managing underwriter shall be chosen by
the Investors holding not less than a Majority Interest of the Registrable
Securities to be sold in such offering, subject to the Company's consent, which
consent shall not be unreasonably withheld, conditioned or delayed. The Company
may not cause any other registration of securities for sale for its own account
(other than a registration effected solely to implement an employee benefit plan
or a transaction to which Rule 145 of the Securities Act is applicable) to
become effective within one hundred eighty (180) days following the effective
date of any registration required pursuant to this Section 2 or such lesser
period as may be consented to by the managing underwriter.
3. Piggyback Registration. If the Company at any time proposes to register
any of its Common Stock under the Securities Act for sale to the public
(including pursuant to a demand under Section 2 hereof as provided therein and
except with respect to registration statements on
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Forms X-0, X-0 or another form not available for registering the Registrable
Securities for sale to the public), each such time it will give written notice
at the applicable address of record to each holder of Registrable Securities of
its intention to do so. Upon the written request of any of such holders of the
Registrable Securities, given within thirty (30) days after receipt by such
Person of such notice, the Company will, subject to the limits contained in this
Section 3, use its reasonable best efforts to cause all such Registrable
Securities of said requesting holders to be registered under the Securities Act
and qualified for sale under any state blue sky law, all to the extent required
to permit such sale or other disposition of said Registrable Securities;
provided, however, that if the Company is advised in writing in good faith by
any managing underwriter of the Company's securities being offered in a public
offering pursuant to such registration statement that the amount to be sold by
Persons other than the Company (collectively, "SELLING STOCKHOLDERS") is greater
than the amount which can be offered without adversely affecting the offering,
the Company may reduce the amount offered for the accounts of Selling
Stockholders (including such holders of shares of Registrable Securities) to a
number deemed satisfactory by such managing underwriter; and provided further,
that the shares to be excluded shall be determined in the following sequence
(except with respect to a demand under Section 2 hereof): (i) first, securities
held by any Persons not having any such contractual, incidental registration
rights; (ii) second, securities held by any Persons having contractual,
incidental registration rights pursuant to an agreement which is not this
Agreement; (iii) third, securities held by the Founders (as defined in the Stock
Purchase Agreement, dated as of June 19, 1999, by and among the Company, the
Founders and the investors named in Exhibit A thereto); and (iv) fourth, all
Registrable Securities in each case as determined on a pro rata basis in
accordance with their holdings. Notwithstanding the foregoing, in no event shall
the number of Registrable Securities included in a registration pursuant to this
section be reduced to less than twenty percent (20%) of all shares to be
registered.
4. Resale Shelf Registration Statement.
(a) Within thirty (30) days following the earlier to occur of (i) the date that
the Company qualifies for the use of Form S-3 and (ii) March 15, 2007, the
Company shall file with the Commission a registration statement (the "Shelf
Registration Statement") relating to the offer and sale of all Registrable
Securities by the VS Investors to the public, from time to time, on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act (subject to any
Suspension Period(s) referred to below). The Company shall use its reasonable
best efforts to cause the Shelf Registration Statement to be declared effective
by the Commission as soon as practicable after the filing thereof with the
Commission. The Shelf Registration Statement shall specify the intended methods
of distribution of the subject Registrable Securities, which in no event shall
include underwritten offerings, whether on a firm commitment or best efforts
basis.
(b) The Company shall (i) cause the Shelf Registration Statement to include a
resale prospectus intended to permit each VS Investor to sell, at such
Investor's election, all or part of the Registrable Securities held by such
Investor without restriction but in accordance with the intended methods of
distribution set forth therein, (ii) prepare and file with the Commission such
supplements, amendments and post-effective amendments to the Shelf Registration
Statement as may be necessary to keep the Shelf Registration Statement
continuously effective (subject to any Suspension Period(s) referred to below)
until August 15, 2007 (the "Required Period"), and (iii) use its reasonable
efforts to cause the resale prospectus to be supplemented by any required
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prospectus supplement (subject to any Suspension Period(s) referred to below)
during the Required Period; provided, however, that with respect to Registrable
Securities registered pursuant to such Shelf Registration Statement, each VS
Investor agrees that it will not enter into any transaction for the sale of any
Registrable Securities pursuant to such registration statement during the time
after the furnishing of the Company's notice that the Company is preparing a
supplement to or an amendment of such resale prospectus or Shelf Registration
Statement and until the filing and effectiveness thereof.
(c) The Company may, by notice in writing to each Investor, require Investors to
suspend use of any resale prospectus included in the Shelf Registration
Statement for a reasonable time period (each such period, a "Suspension
Period"), provided that all such suspensions shall not exceed one hundred twenty
(120) days in the aggregate during any twelve (12) month period, if (i) the
Company has been advised by legal counsel that such continued use would require
disclosure of a material financing, acquisition or other corporate transaction
or development, and the Board of Directors of the Company determines in good
faith that such disclosure is not in the best interests of the Company and its
stockholders or (ii) the Board of Directors of the Company determines in good
faith that there is a valid business purpose or reason for suspending such
continued use. In the event of each Suspension Period, the Required Period shall
be extended for a period equal to the number of days elapsed during such
Suspension Period.
(d) Each Investor agrees that, upon receipt of notice from the Company of the
commencement of a Suspension Period (a "Suspension Notice"), such Investor will
forthwith discontinue any disposition of Registrable Securities pursuant to the
Shelf Registration Statement or any public sale or distribution, including
pursuant to Rule 144, until the earlier of (i) the expiration of the Suspension
Period and (ii) such Investor's receipt of a notice from the Company to the
effect that such suspension has terminated. If so directed by the Company, such
Investor will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies, then in such Investor's possession, of the
most recent resale prospectus covering such Registrable Securities at the time
of receipt of such Suspension Notice. In the event of a Suspension Notice, the
Company shall, promptly after the expiration of such Suspension Period, provide
notice to all Investors that the Suspension Period has ended, and take any and
all actions necessary or desirable to give effect to any Investor's rights under
this Agreement that may have been affected by such notice.
(e) Each Investor agrees that it shall furnish to the Company such information
regarding such Investor and the methods of distribution of Registrable
Securities intended by such Investor permitted hereunder (i) as the Company may,
from time to time, reasonably request in writing and (ii) as shall be required
by law or by the Commission in connection therewith. Each Investor agrees that
information obtained by it or by its Inspectors (as defined below) shall be
deemed confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company unless and until such information
is made generally available to the public.
5. Form S-3 Registration. In case the Company shall receive from any VS
Investor a written request or requests that the Company effect a registration on
Form S-3 (or any successor to Form S-3) or any similar short-form registration
statement with respect to all or a
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part of the Registrable Securities owned by such Investor or Investors (a "Form
S-3 Registration"), the Company will:
(a) promptly give written notice of the proposed registration to all other
Investors of Registrable Securities; and
(b) as soon as practicable, prepare and file and use its reasonable best efforts
to cause to become effective such registration statement as would permit or
facilitate the sale and distribution from time to time, of all or such portion
of such Investor's or Investors' Registrable Securities as are specified in such
request, together with all or such portion of the Registrable Securities of any
other Investor or Investors joining in such request as are specified in a
written request given within fifteen (15) days after receipt of such written
notice from the Company, on a delayed or continuous basis pursuant to Rule 415
under the Securities Act (subject to any S-3 Suspension Period(s) referred to
below); provided, however, that the Company shall not be obligated to effect any
such registrations pursuant to this Section 5:
(i) if Form S-3 is not available for such offering by the Investors;
(ii) if the Investors, together with the holders of any other securities of
the Company entitled to inclusion in such registration, propose to sell
Registrable Securities and such other securities (if any) at an aggregate price
to the public of less than two million dollars ($2,000,000);
(iii) if within thirty (30) days of receipt of a written request from any
Investor or Investors pursuant to this Section 5, the Company gives notice to
such Investor or Investors of the Company's intention to make a public offering
within ninety (90) days, other than pursuant to a registration statement on
Forms X-0, X-0 or another form not available for registering the Registrable
Securities for sale to the public;
(iv) if the Company shall furnish to the Investors a certificate signed by
the Chairman of the Board stating that in the good faith judgment of the Board,
it would be seriously detrimental to the Company and its stockholders for such
Form S-3 registration to be effected at such time, in which event the Company
shall have the right to defer the filing of the Form S-3 registration statement
for a period of not more than ninety (90) days after receipt of the request of
the Investor or Investors under this Section 5; provided, that such right to
delay a request shall be exercised by the Company not more than once in any
twelve (12) month period; or
(v) if the Company has already effected two (2) registrations on Form S-3
for the Investors pursuant to this Section 5.
(c) Subject to the foregoing, the Company shall file a Form S-3 registration
statement covering the Registrable Securities and other securities so requested
to be registered as soon as practicable after receipt of the requests of the
Investors. Registrations effected pursuant to this Section 5 shall not be
counted as a demand for registration effected pursuant to Section 2. Each Form
S-3 Registration Statement shall specify the intended methods of distribution of
the subject Registrable Securities, which in no event shall include underwritten
offerings, whether on a firm commitment or best efforts basis. The Company use
its reasonable efforts to cause the resale prospectus in such Form S-3
Registration to be supplemented by any required prospectus
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supplement (subject to any S-3 Suspension Period(s) referred to below) during
the 180 day period following initial effectiveness; provided, however, that with
respect to Registrable Securities registered pursuant to such Form S-3
Registration Statement, each VS Investor agrees that it will not enter into any
transaction for the sale of any Registrable Securities pursuant to such
registration statement during the time after the furnishing of the Company's
notice that the Company is preparing a supplement to such resale prospectus or
Form S-3 Registration Statement and until the filing and effectiveness thereof.
(d) The Company may, by notice in writing to each Investor, require Investors to
suspend use of any resale prospectus included in a Form S-3 Registration for a
reasonable time period (each such period, an "S-3 Suspension Period"), provided
that all such suspensions shall not exceed one hundred twenty (120) days in the
aggregate during any twelve (12) month period, if (i) the Company has been
advised by legal counsel that such continued use would require disclosure of a
material financing, acquisition or other corporate transaction or development,
and the Board of Directors of the Company determines in good faith that such
disclosure is not in the best interests of the Company and its stockholders or
(ii) the Board of Directors of the Company determines in good faith that there
is a valid business purpose or reason for suspending such continued use. In the
event of each Suspension Period, the period of the Company's obligation to
maintain the effectiveness of such Form S-3 Registration shall be extended for a
period equal to the number of days elapsed during such S-3 Suspension Period.
(e) Each Investor agrees that, upon receipt of notice from the Company of the
commencement of an S-3 Suspension Period (an "S-3 Suspension Notice"), such
Investor will forthwith discontinue any disposition of Registrable Securities
pursuant to the Form S-3 Registration Statement or any public sale or
distribution, including pursuant to Rule 144, until the earlier of (i) the
expiration of the S-3 Suspension Period and (ii) such Investor's receipt of a
notice from the Company to the effect that such suspension has terminated. If so
directed by the Company, such Investor will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies, then in such
Investor's possession, of the most recent resale prospectus covering such
Registrable Securities at the time of receipt of such S-3 Suspension Notice. In
the event of an S-3 Suspension Notice, the Company shall, promptly after the
expiration of such S-3 Suspension Period, provide notice to all Investors that
the S-3 Suspension Period has ended, and take any and all actions necessary or
desirable to give effect to any Investor's rights under this Agreement that may
have been affected by such notice.
(f) Each Investor agrees that it shall furnish to the Company such information
regarding such Investor and the methods of distribution of Registrable
Securities intended by such Investor permitted hereunder (i) as the Company may,
from time to time, reasonably request in writing and (ii) as shall be required
by law or by the Commission in connection therewith. Each Investor agrees that
information obtained by it or by its Inspectors (as defined below) shall be
deemed confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company unless and until such information
is made generally available to the public.
6. Registration Procedures. If and whenever the Company is required by the
provisions of this Agreement to effect the registration of any of its securities
under the Securities Act, the Company will, as expeditiously as possible:
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(a) diligently prepare and file with the Commission a registration statement on
the appropriate form under the Securities Act with respect to such securities,
which form shall comply as to form in all material respects with the
requirements of the applicable form and include all financial statements
required by the Commission to be filed therewith, and use its reasonable best
efforts to cause such registration statement to become and remain effective
until completion of the proposed offering (but not for more than one hundred
eighty (180) days, except as provided in Sections 4 and 5 and except that any
demand registration statement for the VS Investors pursuant to Section 2 need
not remain effective for more than forty-five (45) days);
(b) prepare and file with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective until the completion of
the offering (but not for more than one hundred eighty (180) days, except as
provided in Sections 4 and 5 and except that any demand registration statement
for the VS Investors pursuant to Section 2 need not remain effective for more
than forty-five (45) days); and to comply with the provisions of the Securities
Act with respect to the sale or other disposition of all securities covered by
such registration statement whenever the seller or sellers of such securities
shall desire to sell or otherwise dispose of the same, but only to the extent
provided in this Agreement;
(c) furnish to each selling holder of Registrable Securities and the
underwriters, if any, such number of copies of such registration statement, any
amendments thereto, any documents incorporated by reference therein, the
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as such selling
holder may reasonably request in order to facilitate the public sale or other
disposition of the securities owned by such selling holder;
(d) use its reasonable best efforts to register or qualify the securities
covered by such registration statement under and to the extent required by such
other securities or state blue sky laws of such jurisdictions as each selling
holder of Registrable Securities shall reasonably request, and do any and all
other acts and things which may be necessary under such securities or blue sky
laws to enable such selling holder to consummate the public sale or other
disposition in such jurisdictions of the securities owned by such selling
holder, except that the Company shall not for any such purpose be required to
qualify to do business as a foreign corporation in any jurisdiction wherein it
is not so qualified;
(e) within a reasonable time before each filing of the registration statement or
prospectus or amendments or supplements thereto with the Commission, furnish to
counsel selected by the holders of a majority in interest of the Registrable
Securities subject to such registration copies of such documents proposed to be
filed, which documents shall be subject to the reasonable approval of such
counsel, which approval shall not be unreasonably withheld, conditioned or
delayed;
(f) subject to Sections 4(d) and 5(e), promptly notify each selling holder of
Registrable Securities, such selling holders' counsel and any underwriter and
(if requested by any such Person) confirm such notice in writing, of the
happening of any event which makes any statement made in the registration
statement or related prospectus untrue or which requires the making of any
changes in such registration statement or prospectus so that they will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
in the light of the circumstances under which
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they were made not misleading; and, subject to Sections 4(d) and 5(e), as
promptly as practicable thereafter, prepare and file with the Commission and
furnish a supplement or amendment to such prospectus so that, as thereafter
deliverable to the purchasers of such Registrable Securities, such prospectus
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(g) use its reasonable best efforts to prevent the issuance of any order
suspending the effectiveness of a registration statement, and if one is issued
use its reasonable best efforts to obtain the withdrawal of any order suspending
the effectiveness of a registration statement at the earliest possible moment;
(h) in connection with a registration of an underwritten offering pursuant to a
request under Section 2, if requested by the managing underwriter or
underwriters (if any), any selling holder of Registrable Securities, or such
selling holder's counsel, promptly incorporate in a prospectus supplement or
post-effective amendment such information as such Person requests to be included
therein with respect to the selling holder or the securities being sold,
including, without limitation, with respect to the securities being sold by such
selling holder to such underwriter or underwriters, the purchase price being
paid therefor by such underwriter or underwriters and with respect to any other
terms of an underwritten offering of the securities to be sold in such offering,
and promptly make all required filings of such prospectus supplement or
post-effective amendment;
(i) make available to each selling holder of Registrable Securities, any
underwriter participating in any disposition pursuant to a registration
statement, and any attorney, accountant or other agent or representative
retained by any such selling holder or underwriter (collectively, the
"INSPECTORS"), all financial and other records, pertinent corporate documents
and properties of the Company (collectively, the "RECORDS"), as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees to
supply all information requested by any such Inspector in connection with such
registration statement subject, in each case, to such confidentiality agreements
as the Company shall reasonably request;
(j) in connection with a registration of an underwritten offering pursuant to a
request under Section 2, enter into any reasonable underwriting agreement
required by the proposed underwriter(s) for the selling holders of Registrable
Securities, if any, and use its reasonable best efforts to facilitate the public
offering of the securities;
(k) in connection with a registration of an underwritten offering pursuant to a
request under Section 2, request that each prospective selling holder be
furnished a signed counterpart, addressed to the prospective selling holder, of
, if and to the extent permitted applicable professional standards, a "comfort"
letter signed by the independent public accountants who have certified the
Company's financial statements included in the registration statement, covering
substantially the same matters with respect to the registration statement (and
the prospectus included therein) and with respect to events subsequent to the
date of the financial statements, as are customarily covered (at the time of
such registration) in accountants' letters delivered to the underwriters in
underwritten public offerings of securities;
(l) use its reasonable best efforts to cause the securities covered by such
registration statement to be listed on the securities exchange or quoted on the
quotation system on which the
10
Common Stock is then listed or quoted (or, if the Common Stock is not yet listed
or quoted, then on such exchange or quotation system as the selling holders of
Registrable Securities and the Company shall determine);
(m) otherwise use its reasonable best efforts to comply with all applicable
rules and regulations of the Commission and make generally available to its
security holders, in each case as soon as reasonably practicable, but not later
than 90 days after the close of the period covered thereby, an earnings
statement of the Company which will satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 thereunder (or any comparable successor
provisions); and
(n) otherwise cooperate with the underwriter(s), if any, and the Commission and
other regulatory agencies and take all reasonable actions and execute and
deliver or cause to be executed and delivered all documents reasonably necessary
to effect the registration of any securities under this Agreement.
7. Expenses. All reasonable expenses incurred by the Company and the
Investors in effecting the registrations provided for in this Agreement,
including, without limitation, all registration and filing fees, printing
expenses, fees and disbursements of counsel for the Company and one counsel for
the selling stockholders as a group (selected by a majority in interest of the
holders of Registrable Securities who participate in the registration),
underwriting expenses (other than fees, commissions or discounts), expenses of
any audits incident to or required by any such registration and expenses of
complying with the securities or blue sky laws of any jurisdictions pursuant to
Section 6(d) hereof (all of such expenses referred to as "REGISTRATION
EXPENSES"), shall be paid by the Company.
8. Indemnification.
(a) To the maximum extent permitted by law, the Company shall indemnify and hold
harmless the selling holder of Registrable Securities, each underwriter (as
defined in the Securities Act), and each other Person, if any, who controls
(within the meaning of the Securities Act) such selling holder or underwriter
(individually and collectively, the "INDEMNIFIED PERSON") against any losses,
claims, damages or liabilities (collectively, "LIABILITY"), joint or several, to
which such Indemnified Person may become subject under the Securities Act or any
other statute or at common law, insofar as such liability (or action in respect
thereof) arises out of or is based upon (i) any untrue statement or alleged
untrue statement of any material fact contained, on the effective date thereof,
in any registration statement under which such securities were registered under
the Securities Act, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereto, or (ii) any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading. Except as otherwise
provided in Section 8(e), the Company shall reimburse each such selling holder
of Registrable Securities in connection with investigating or defending any such
liability as reasonable expenses in connection with the same are incurred;
provided, however, that the Company shall not be liable to any such selling
holder of Registrable Securities in any such case to the extent that any such
liability arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement,
preliminary or final prospectus, or amendment or supplement thereto in reliance
upon and in conformity with information furnished in writing to the Company by
such selling holder of Registrable Securities specifically for use therein; and
provided further, that the Company
11
shall not be required to indemnify any Indemnified Person for any liability
which arises out of the failure of any Indemnified Person to deliver a
prospectus as required by the Securities Act.
(b) Each selling holder of any securities included in such registration being
effected shall indemnify and hold harmless each other selling holder of any
securities, the Company, its directors and officers, each underwriter and each
other Person, if any, who controls (within the meaning of the Securities Act)
the Company or such underwriter (individually and collectively also the
"INDEMNIFIED PERSON"), against any liability, joint or several, to which any
such Indemnified Person may become subject under the Securities Act or any other
statute or at common law, insofar as such liability (or actions in respect
thereof) arises out of or is based upon (i) any untrue statement or alleged
untrue statement of any material fact contained, on the effective date thereof,
in any registration statement under which securities were registered under the
Securities Act at the request of such selling holder, any preliminary prospectus
or final prospectus contained therein, or any amendment or supplement thereto,
or (ii) any omission or alleged omission by such selling holder to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in the case of (i) and (ii) to the extent,
but only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in such registration statement,
preliminary or final prospectus, amendment or supplement thereto in reliance
upon and in conformity with information furnished in writing to the Company by
such selling holder specifically for use therein. Such selling holder shall
reimburse any Indemnified Person for any legal fees incurred in investigating or
defending any such liability; provided, however, that such selling holder's
obligations hereunder shall be limited to an amount equal to the proceeds to
such selling holder of the securities sold in any such registration; and
provided further, that no selling holder shall be required to indemnify any
Person for any liability which arises out of the failure of any Person to
deliver a prospectus as required by the Securities Act.
(c) Indemnification similar to that specified in Sections 8(a) and (b) shall be
given by the Company and each selling holder (with such modifications as may be
appropriate) with respect to any required registration or other qualification of
their securities under any federal or state law or regulation of governmental
authority other than the Securities Act.
(d) Promptly after receipt by an Indemnified Person under this Section 8 of
notice of the commencement of any action (including any governmental action),
such Indemnified Person will, if a claim in respect thereof is to be made
against any indemnifying party under this Section 8, deliver to the indemnifying
party a written notice of the commencement thereof and the indemnifying party
will have the right to participate in, and, to the extent the indemnifying party
so desires, jointly with any other indemnifying party similarly noticed, to
assume the defense thereof with qualified counsel; provided, however, that an
Indemnified Person (together with all other Indemnified Persons which may be
represented without conflict by one counsel) will have the right to retain one
separate counsel, with the reasonable fees and expenses to be paid by the
indemnifying party, if representation of such Indemnified Person by the counsel
retained by the indemnifying party is inappropriate due to actual or potential
differing interests between such Indemnified Person and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action, if prejudicial to its ability to defend such action, will
relieve
12
such indemnifying party of any liability to the Indemnified Person under this
Section 8, but the omission so to deliver written notice to the indemnifying
party will not relieve it of any liability that it may have to any Indemnified
Person otherwise than under this Section 8.
(e) If the indemnification provided for in this Section 8 for any reason is held
by a court of competent jurisdiction to be unavailable to an Indemnified Person
in respect of any losses, claims, damages, expenses or liabilities referred to
therein, then each indemnifying party under this Section 8, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages, expenses or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, the selling holders and
the underwriters from the offering of the Registrable Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, the
other selling holders and the underwriters in connection with the statements or
omissions which resulted in such losses, claims, damages, expenses or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company, the selling holders and the
underwriters shall be deemed to be in the same respective proportions that the
net proceeds from the offering (before deducting expenses) received by the
Company and the selling holders and the underwriting discount received by the
underwriters, in each case as set forth in the table on the cover page of the
applicable prospectus, bear to the aggregate public offering price of the
Registrable Securities. The relative fault of the Company, the selling holders
and the underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, the selling holders or the underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(f) The Company, the selling holders and the underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 8 were
determined by pro rata or per capita allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. In no event, however, shall a selling
holder be required to contribute any amount under this Section 8(f) in excess of
the lesser of (i) that proportion of the total of such losses, claims, damages
or liabilities indemnified against equal to the proportion of the total
Registrable Securities sold under such registration statement which are being
sold by such selling holder or (ii) the proceeds received by such selling holder
from its sale of Registrable Securities under such registration statement. No
Person found guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
Person who was not found guilty of such fraudulent misrepresentation.
(g) Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in the underwriting agreement entered
into in connection with an underwritten public offering are in conflict with the
foregoing provisions, the provisions in the underwriting agreement shall
control.
13
9. Compliance with Rule 144.
(a) The Company will use its best efforts to file with the Commission such
information as is required under the Exchange Act for so long as there are
holders of Registrable Securities; and in such event, the Company shall use its
best efforts to take all action as may be required as a condition to the
availability of Rule 144. The Company shall furnish to any holder of Registrable
Securities upon reasonable request a written statement executed by the Company
as to the steps it has taken to comply with the current public information
requirement of Rule 144. Subject to the limitations on transfers imposed by this
Agreement, the Company shall use its reasonable best efforts to facilitate and
expedite transfers of Registrable Securities pursuant to Rule 144, which efforts
shall include timely notice to its transfer agent to expedite such transfers of
Registrable Securities.
(b) Except with respect to a demand registration pursuant to Section 2, prior to
the Company's registration of any Registrable Securities hereunder on behalf of
an Investor, such Investor shall (i) use its reasonable best efforts to sell the
maximum number of Registrable Securities that such Investor is able to sell
pursuant to Rule 144 and (ii) exercise the registration rights hereunder only in
the case that such Investor determines in good faith that such rights are
necessary to sell such Registrable Securities in a timely manner.
10. Amendments. The provisions of this Agreement may be amended, and the
Company may take any action herein prohibited or omit to perform any act herein
required to be performed by it, only with the written consent of the Company and
Investors holding a majority of the Registrable Securities.
11. Transferability of Registration Rights. The Registration Rights set
forth in this Agreement are transferable to each valid and proper transferee of
at least Two Hundred Five (200,000) shares of Registrable Securities. Each such
transferee of Registrable Securities must consent in writing to be bound by the
terms and conditions of this Agreement in order to acquire the rights granted
pursuant to this Agreement.
12. Rights Which May Be Granted to Subsequent Investors. Other than
transferees of Registrable Securities under Section 11 hereof, the Company shall
not, without the prior written consent of a Majority Interest, (a) allow
purchasers of the Company's securities to become a party to this Agreement or
(b) grant any other registration rights to any third parties other than
subordinate piggyback registration rights.
13. Damages. The Company recognizes and agrees that each holder of
Registrable Securities will not have an adequate remedy if the Company fails to
comply with the terms and provisions of this Agreement and that damages will not
be readily ascertainable, and the Company expressly agrees that, in the event of
such failure, it shall not oppose an application by any holder of Registrable
Securities or any other Person entitled to the benefits of this Agreement
requiring specific performance of any and all provisions hereof or enjoining the
Company from continuing to commit any such breach of this Agreement.
14
14. Miscellaneous.
(a) All notices, requests, demands and other communications provided for
hereunder shall be in writing and mailed (by first class registered or certified
mail, postage prepaid), telegraphed, sent by express overnight courier service
or electronic facsimile transmission (with a copy by mail), or delivered to the
applicable party at the addresses indicated below:
If to the Company: WebSideStory, Inc.
00000 Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
Attn: General Counsel
If to Existing Investors: At such Person's address listed opposite
their name on Schedule A attached hereto.
If to Avivo Investors: At such Person's address listed opposite
their name on Schedule B attached hereto.
If to VS Investors: At such Person's address listed opposite
their name on Schedule C attached hereto.
or, as to each of the foregoing, at such other address as shall be designated by
such Person in a written notice to other parties complying as to delivery with
the terms of this subsection (a). All such notices, requests, demands and other
communications shall, when mailed, telegraphed or sent, respectively, be
effective (i) two days after being deposited in the mails or (ii) one day after
being delivered to the telegraph company, deposited with the express overnight
courier service or sent by electronic facsimile transmission, respectively,
addressed as aforesaid.
(b) This Agreement shall be governed by and construed in accordance with the
laws of the State of California, without giving effect to conflict of laws
principles thereof.
(c) This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
(d) If any provision of this Agreement shall be held to be illegal, invalid or
unenforceable, such illegality, invalidity or unenforceability shall attach only
to such provision and shall not in any manner affect or render illegal, invalid
or unenforceable any other provision of this Agreement, and this Agreement shall
be carried out as if any such illegal, invalid or unenforceable provision were
not contained herein.
15
15. Dispute Resolution. Except as provided below, any dispute arising out of or
relating to this Agreement or the breach, termination or validity hereof shall
be finally settled by binding arbitration conducted expeditiously by one
arbitrator in accordance with the J.A.M.S./Endispute Streamlined Arbitration
Rules and Procedures (the "J.A.M.S. RULES"). The arbitration shall be governed
by the United States Arbitration Act, 9 U.S.C. Sections 1-16, and judgment upon
the award rendered by the arbitrator may be entered by any court having
jurisdiction thereof. The place of arbitration shall be San Diego, California.
Such proceedings shall be administered by the arbitrator in accordance with the
J.A.M.S. Rules as he/she deems appropriate, however, such proceedings shall be
conducted in accordance with the following agreed upon procedures:
(a) mandatory exchange of all relevant documents, to be accomplished within
forty-five (45) days of the initiation of the procedure (documents not so
exchanged will be excluded from the evidence considered at the hearing absent a
showing of good cause);
(b) no other discovery;
(c) hearings before the arbitrator which shall consist of a summary presentation
by each side of not more than three (3) hours; such hearings to take place on
one or two days at a maximum; and
(d) decision to be rendered not more than ten (10) days following such hearings.
Notwithstanding anything to the contrary contained herein, the provisions of
this Section 14 shall not apply with regard to any equitable remedies to which
any party may be entitled hereunder.
Each of the parties hereto (x) hereby irrevocably submits to the personal
jurisdiction of any court of competent jurisdiction in the United States for the
purpose of enforcing the award or decision in any such proceeding, (y) hereby
waives, and agrees not to assert, by way of motion, as a defense, or otherwise,
in any such suit, action or proceeding, any claim that it is not subject
personally to the jurisdiction of the above-named courts, that its property is
exempt or immune from attachment or execution (except as protected by applicable
law), that the suit, action or proceeding is brought in an inconvenient forum,
that the venue of the suit, action or proceeding is improper or that this
Agreement or the subject matter hereof may not be enforced in or by such court,
and hereby waives and agrees not to seek any review by any court of any other
jurisdiction which may be called upon to grant an enforcement of the judgment of
any such court. Each of the parties hereto hereby consents to service of process
by registered mail at the address to which notices are to be given. Each of the
parties hereto agrees that its or his submission to jurisdiction and its or his
consent to service of process by mail is made for the express benefit of the
other parties hereto. Final judgment against any party hereto in any such
action, suit or proceeding may be enforced in other jurisdictions by suit,
action or proceeding on the judgment, or in any other manner provided by or
pursuant to the laws of such other jurisdiction.
[The remainder of this page intentionally left blank.]
16
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first set forth above.
"COMPANY"
WEBSIDESTORY, INC.
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxxx
President, Chief Executive Officer
and Chairman
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first set forth above.
"EXISTING INVESTOR"
TA/ADVENT VIII L.P.
By: TA Associates VIII LLC,
its General Partner
By: TA Associates, Inc., its Manager
By: *
------------------------------------
ADVENT ATLANTIC AND PACIFIC III L.P.
By: TA Associates AAP III Partners,
its General Partner
By: TA Associates, Inc.,
its General Partner
By: *
------------------------------------
TA INVESTORS LLC
By: TA Associates, Inc., its Manager
*By: /s/ Xxxx X. Xxxxxxx By: *
-------------------------------- ------------------------------------
Xxxx X. Xxxxxxx
Managing Director
TA EXECUTIVES FUND LLC
By: TA Associates, Inc., its Manager
By: *
------------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first set forth above.
"EXISTING INVESTOR"
SUMMIT INVESTORS III, L.P.
By: *
------------------------------------
General Partner
SUMMIT V ADVISORS FUND (QP), L.P.
By: Summit Partners V, L.P.,
its General Partner
By: Summit Partners, LLC,
its General Partner
By: *
------------------------------------
SUMMIT V ADVISORS FUND, L.P.
By: Summit Partners V, L.P.,
its General Partner
By: Summit Partners, LLC,
its General Partner
*By: /s/ Xxxxxx Xxxxxxx By: *
-------------------------------- ------------------------------------
Xxxxxx Xxxxxxx
Partner
SUMMIT V COMPANION FUND, L.P.
By: Summit Partners V, L.P.,
its General Partner
By: Summit Partners, LLC,
its General Partner
By: *
------------------------------------
SUMMIT VENTURES V, L.P.
By: Summit Partners V, L.P.,
its General Partner
By: Summit Partners, LLC,
its General Partner
By: *
------------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first set forth above.
"EXISTING INVESTOR"
----------------------------------------
Xxxxx Xxxxxx
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first set forth above.
"AVIVO INVESTOR"
NEW ENTERPRISE ASSOCIATES 10, L.P.
BY: NEA PARTNERS 10, LIMITED
PARTNERSHIP, ITS GENERAL PARTNER
By: /s/ Xxxxxx X. Xxxxxxx, III
------------------------------------
Name: Xxxxxx X. Xxxxxxx, III
Title: General Partner
NEA VENTURES 2000, L.P.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: General Partner
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first set forth above.
"AVIVO INVESTOR"
SOFINNOVA VENTURE PARTNERS IV, L.P.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
SOFINNOVA VENTURE AFFILIATES IV, L.P.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
SOFINNOVA CAPITAL III
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first set forth above.
"AVIVO INVESTOR"
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first set forth above.
"AVIVO INVESTOR"
/s/ Xxxx Xxxxxxx
----------------------------------------
Xxxx Xxxxxxx
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first set forth above.
"AVIVO INVESTOR"
----------------------------------------
Xxxxxxx X. Xxxxxxxx
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first set forth above.
"AVIVO INVESTOR"
----------------------------------------
Xxxxx X. Xxxxxxx
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first set forth above.
"VS INVESTOR"
/s/ Xxxxx X. XxxXxxxxx, XX
----------------------------------------
Xxxxx X. XxxXxxxxx, XX
----------------------------------------
Name:
----------------------------------
Title:
---------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first set forth above.
"VS INVESTOR"
/s/ Xxxxxx X. Xxxxx
-------------------------------------
Xxxxxx X. Xxxxx, D.D.S.
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first set forth above.
"VS INVESTOR"
/s/ Xxxxx Xxxxxxxx
--------------------------------------
Xxxxx Xxxxxxxx
--------------------------------------
Name:
--------------------------------
Title:
--------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first set forth above.
"VS INVESTOR"
/s/ Xxxxx Xxxxxx
------------------------------------
Xxxxx Xxxxxx
------------------------------------
Name:
------------------------------
Title: Managing Member GP on behalf
of Xxxxxxxx Xxxxxxxxx 8701
Opportunities Fund
------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first set forth above.
"VS INVESTOR"
/s/ Xxx Xxxxxx
-------------------------------------
Xxx Xxxxxx
-------------------------------------
Name:
-------------------------------
Title: Investor
-------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first set forth above.
"VS INVESTOR"
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first set forth above.
"VS INVESTOR"
/s/ Xxxx X. Xxxxxx
--------------------------------------
Xxxx X. Xxxxxx
--------------------------------------
Name:
--------------------------------
Title:
--------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first set forth above.
"VS INVESTOR"
/s/ Xxxxxx X. Xxxxxx Revocable Trust
---------------------------------------
Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------
Title: Trustee
---------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first set forth above.
"VS INVESTOR"
/s/ Xxxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxx
--------------------------------
Title: Class C Member
--------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first set forth above.
"VS INVESTOR"
/s/ Xxxxxx X. XxxXxxxxx
-------------------------------------
Xxxxxx X. XxxXxxxxx
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first set forth above.
"VS INVESTOR"
/s/ Xxxxxxx Xxxxxxxx
------------------------------------
Xxxxxxx Xxxxxxxx
------------------------------------
Name:
------------------------------
Title:
------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first set forth above.
"VS INVESTOR"
/s/ Xxx Xxxxxx
-------------------------------------
Xxx Xxxxxx
-------------------------------------
Name:
-------------------------------
Title: Chairman and Founder
-------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first set forth above.
"VS INVESTOR"
/s/ Xxx Xxxxxxx
--------------------------------------
Xxx Xxxxxxx
--------------------------------------
Name:
--------------------------------
Title:
--------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first set forth above.
"VS INVESTOR"
/s/ Xxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxxxx
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first set forth above.
"VS INVESTOR"
/s/ Xxx Xxxxxxx/Xxxxxxxxx Xxxxxx
-------------------------------------
Xxx Xxxxxxx/Xxxxxxxxx Xxxxxx
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first set forth above.
"VS INVESTOR"
/s/ Xxxx X. Xxxxxxxx
-------------------------------------
Xxxx X. Xxxxxxxx
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first set forth above.
"VS INVESTOR"
/s/ Xxxxxx X. xx Xxxxxxxx
--------------------------------------
Xxxxxx X. xx Xxxxxxxx
--------------------------------------
Name:
--------------------------------
Title:
--------------------------------
