Exhibit 10.3
WEBSIDESTORY, INC.
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Amended and Restated Registration Rights Agreement (this
"AGREEMENT") dated as of ____________, 2005 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") and certain entities and individuals as
listed on Schedule B attached hereto (each an "AVIVO INVESTOR," and
collectively, the "AVIVO INVESTORS," and together with the Existing 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, WSSI Acquisition Company, a California
corporation and a direct, wholly owned subsidiary of the Company ("MERGER SUB"),
and Avivo Corporation, a California corporation ("AVIVO") have previously
entered into an Agreement and Plan of Merger, dated as of February 8, 2005 (as
it may be amended from time to time pursuant to the terms thereof, the "MERGER
AGREEMENT"), which provides for the two-step merger (the "MERGER") of Merger Sub
with and into Avivo, and Avivo with and into a wholly-owned subsidiary of the
Company, in accordance with the terms of the Merger Agreement;
WHEREAS, as a condition to consummating the Merger, the Company and the
Existing Investors are required to enter into this Agreement to grant the Avivo
Investors certain registration rights hereunder;
WHEREAS, the Original Agreement provides that an amendment of the
Original Agreement may be effected by the written consent of the Company and a
Majority Interest (as such term is defined in the Original Agreement) of the
Existing Investors;
WHEREAS, the undersigned Existing Investors constitute holders of not
less than a Majority Interest of the Existing Investors and, therefore, are
entitled to bind all other holders of Registrable Securities (as such term is
defined in the Original Agreement) who are parties to the Original Agreement;
and
WHEREAS, the Company and the Existing Investors hereby agree that the
Original Agreement shall be superseded and replaced in its entirety by this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) any shares of Common Stock that
constituted Registrable Securities pursuant to the terms of the Original
Agreement (or with respect to the Avivo Investors, issued pursuant to the terms
of the Merger Agreement) and (ii) any other securities issued and issuable with
respect to any such shares described in clause (i) 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
5 hereof.
"RULE 144" shall mean Rule 144 promulgated under the Securities Act (or
any comparable successor rules).
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"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, a Majority Interest of
the 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 will use its reasonable best
efforts to expeditiously effect the registration of 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 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 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; provided, however, that, if a
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Majority 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. 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 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
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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. Registration Procedures. If and whenever the Company is required by
the provisions of this Agreement to use its reasonable best efforts to effect
the registration of any of its securities under the Securities Act, the Company
will, as expeditiously as possible:
(a) use its best efforts diligently to 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);
(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)
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
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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 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 Interest 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;
(f) 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 they were made not misleading; and,
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) 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
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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) 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) 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 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), 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.
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5. Expenses. All reasonable expenses incurred by the Company and the
Investors in effecting the registrations provided for in Sections 2 and 3,
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 4(d) hereof (all of such expenses referred to as "REGISTRATION
EXPENSES"), shall be paid by the Company.
6. 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 6(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 shall not be
required to indemnify any Indemnified Person against any
liability arising from any untrue or misleading statement or
omission contained in any preliminary prospectus if such
deficiency is corrected in the final prospectus or 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
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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 against any
liability arising from any untrue or misleading statement or
omission contained in any preliminary prospectus if such
deficiency is corrected in the final prospectus or 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 6(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 6 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 6, 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
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indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability
to defend such action, will relieve such indemnifying party of
any liability to the Indemnified Person under this Section 6,
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 6.
(e) If the indemnification provided for in this Section 6 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 6, 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 6 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 6(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
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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.
7. 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.
8. 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.
9. Transferability of Registration Rights. The Registration Rights set
forth in this Agreement are transferable to each valid and proper transferee of
at least Five Hundred Seventy Five Thousand (575,000) 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.
10. Rights Which May Be Granted to Subsequent Investors. Other than
transferees of Registrable Securities under Section 9 hereof, the Company shall
not, without the prior written consent of a Majority Interest of the Investors,
(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.
11
11. 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.
12. 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 the 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.
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
12
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.
13. 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 13 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
13
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.]
14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first set forth above.
"COMPANY"
WEBSIDESTORY, INC.
___________________________________
Xxxxxxx X. Xxxxxxxx
President, Chief Executive Officer
and Chairman
[SIGNATURE PAGE TO 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: *
*By:_______________________ -------------------------------
Xxxx X. Xxxxxxx
Managing Director
TA EXECUTIVES FUND LLC
By: TA Associates, Inc., its Manager
By: *
-------------------------------
[SIGNATURE PAGE TO 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"
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: *
-------------------------------
*By:_______________________
Xxxxxx X. Xxxxxxxxx
Managing Director
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: *
-------------------------------
[SIGNATURE PAGE TO 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"
WESTCLIFF PARTNERS, LP.
By: Westcliff Capital Management, LLC,
its General Partner
By: *
-------------------------------
WESTCLIFF AGGRESSIVE GROWTH, LP.
By: Westcliff Capital Management, LLC,
its General Partner
By: *
-------------------------------
WESTCLIFF LONG/SHORT, LP.
By: Westcliff Capital Management, LLC,
its General Partner
By: *
*By:_____________________ -------------------------------
Xxxxxxx Xxxxxxx
General Partner
WESTCLIFF MASTER FUND, LP.
By: Westcliff Capital Management, LLC,
its General Partner
By: *
-------------------------------
PALM TRUST
By: Westcliff Capital Management, LLC,
its Investment Advisor
By: *
-------------------------------
WESTCLIFF PROFIT SHARING PLAN
By: Westcliff Capital Management, LLC,
its General Partner
By: *
-------------------------------
WESTCLIFF SMALL CAP FUND, LP.
By: Westcliff Capital Management, LLC,
its General Partner
By: *
-------------------------------
[SIGNATURE PAGE TO 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"
PENINSULA FUND L.P.
By:_______________________
Xxxxx Xxxxxxx
President
[SIGNATURE PAGE TO 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"
_________________________
Xxxx Xxxxxxxx
[SIGNATURE PAGE TO 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"
_______________________
Xxxxx Xxxxxx
[SIGNATURE PAGE TO AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT]
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:_______________________
Name:
Title:
XXX XXXXXXXX 0000, X.X.
By:_______________________
Name:
Title:
[SIGNATURE PAGE TO AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT]
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:
[SIGNATURE PAGE TO AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first set forth above.
"AVIVO INVESTOR"
_______________________
Xxxxxx X. Xxxxxx
[SIGNATURE PAGE TO AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first set forth above.
"AVIVO INVESTOR"
_______________________
Xxxx Xxxxxxx
[SIGNATURE PAGE TO AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first set forth above.
"AVIVO INVESTOR"
________________________
Xxxxxxx X. Xxxxxxxx
[SIGNATURE PAGE TO AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first set forth above.
"AVIVO INVESTOR"
_______________________
Xxxxx X. Xxxxxxx
[SIGNATURE PAGE TO AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT]
SCHEDULE A
EXISTING INVESTORS
NAME ADDRESS
---- -------
XXXX XXXXXXXX
XXXXX XXXXXX
TA/ADVENT VIII L.P.
ADVENT ATLANTIC AND PACIFIC III L.P.
TA INVESTORS LLC
TA EXECUTIVES FUND LLC
SUMMIT INVESTORS III, L.P.
SUMMIT V ADVISORS FUND (QP), L.P.
SUMMIT V ADVISORS FUND, L.P.
SUMMIT V COMPANION FUND, L.P.
SUMMIT VENTURES V, L.P.
WESTCLIFF PARTNERS, LP.
WESTCLIFF AGGRESSIVE GROWTH, LP.
WESTCLIFF LONG/SHORT, LP.
WESTCLIFF MASTER FUND, LP.
PALM TRUST
WESTCLIFF PROFIT SHARING PLAN
WESTCLIFF SMALL CAP FUND, LP.
PENINSULA FUND L.P.
SCHEDULE B
AVIVO INVESTORS
NAME ADDRESS
---- -------
NEW ENTERPRISE ASSOCIATES 10, L.P.
NEA Ventures 2000, L.P.
SOFINNOVA VENTURE PARTNERS IV, L.P.
SOFINNOVA VENTURE AFFILIATES IV, .L.P.
SOFINNOVA CAPITAL III
XXXXXX X. XXXXXX
XXXX XXXXXXX
XXXXXXX X. XXXXXXXX
XXXXX X. XXXXXXX
