EXHIBIT 10.1
ESCROW AGREEMENT
This Escrow Agreement (this "Agreement") dated as of February 1, 2006,
is made by and among WebSideStory, Inc., a Delaware corporation ("Parent"), Xxx
Xxxxxxx, an individual, in his capacity as the representative (the "Member
Representative") of all of the Unitholders and Accredited Optionholders (each, a
"Holder" and collectively, the "Holders") of Visual Sciences, LLC, a Delaware
limited liability company (the "Company"), and U.S. Stock Transfer Corporation,
as Depository Agent (the "Depository Agent").
RECITALS
WHEREAS, pursuant to an Agreement and Plan of Merger made and entered
into as of February 1, 2006 by and among Parent, VS Acquisition, LLC, a Delaware
limited liability company and a direct, wholly owned subsidiary of Parent
("Merger Sub"), the Company and the Member Representative (as it may be amended
from time to time pursuant to the terms thereof, the "Merger Agreement"), at the
Effective Time, the Company will be merged with and into Merger Sub, in
accordance with the terms of the Merger Agreement.
WHEREAS, Section 3.2 of the Merger Agreement provides that in order to
satisfy any claims for indemnification made by Parent pursuant to Article VIII
of the Merger Agreement, an escrow account (the "Escrow Account") shall be
established into which Parent shall deposit shares of Parent Common Stock
constituting the Escrow Fund at the Effective Time.
WHEREAS, a material condition to the consummation of the transactions
contemplated by the Merger Agreement is that the parties hereto enter into this
Agreement.
AGREEMENT
NOW THEREFORE, as a material inducement to Parent, Merger Sub, the
Company and the Member Representative to consummate the transactions
contemplated by the Merger Agreement, and for other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
parties hereby agree as follows:
1. Defined Terms. Capitalized terms used herein without definition
shall have the meanings ascribed to them in the Merger Agreement.
2. Commencement of Duties. Parent, concurrently with the execution and
delivery of this Agreement and pursuant to Section 3.2 of the Merger Agreement,
is transferring to the Depository Agent the Escrow Fund consisting entirely of
the Escrowed Shares. Upon receipt of the Escrowed Shares by the Depository
Agent, the duties and obligations of each of the parties to this Agreement will
commence.
3. Escrow Fund.
(a) Upon receipt of the Escrowed Shares, the Depository Agent
shall send a notice to Parent and the Member Representative acknowledging
receipt of the Escrowed Shares and shall hold the Escrowed Shares in escrow in
the Escrow Account pursuant to the terms of this Agreement.
(b) The certificates representing the Escrowed Shares shall be
retained in the Escrow Account until released pursuant to Section 6 of this
Agreement. The proceeds of all dividends or distributions in respect of the
Escrowed Shares (including dividends and distributions described in Section
3(c)), and all other cash, securities or other property received in exchange for
or in substitution of the Escrowed Shares (including as described in Section
3(d)) (collectively, "Proceeds") shall be retained in the Escrow Account until
released pursuant to Section 6 of this Agreement.
(c) Parent and the Holders agree that any cash dividends,
securities or other property distributable in respect of the Escrowed Shares
shall be distributed by the Parent to, and held by, the Depository Agent in the
Escrow Account subject to the provisions of this Agreement to the same extent as
the Escrowed Shares.
(d) If, after the date of this Agreement, the Escrowed Shares
shall have been changed into a different number of shares or a different type or
class of securities, by reason of any stock dividend, subdivision,
reclassification, recapitalization, split, combination, merger or exchange of
shares, such different number of shares or type or class of securities shall be
held in the Escrow Account subject to the provisions of this Agreement to the
same extent as the Escrowed Shares, and the provisions of this Agreement shall
be correspondingly adjusted to the extent appropriate to reflect equitably such
stock dividend, subdivision, reclassification, recapitalization, split,
combination, merger or exchange of shares.
4. Holders' Pro Rata Shares of the Escrow Fund.
(a) Each Unitholder as of the Closing and each Accredited
Optionholder holding vested Company Options immediately prior to the Closing, as
identified on Schedule A-1 hereto, shall have the following interest in the
Escrow Account, from time to time:
(i) an interest in all Escrowed Shares equal to such proportion
of the total number thereof equal to such Holder's Pro Rata Share of
the Escrow Fund, as set forth on Schedule A-2 hereto; and
(ii) an interest in all Proceeds, if any, of the Escrowed Shares
equal to the portion thereof equal to such Holder's Pro Rata Share of
the Escrow Fund, as set forth on Schedule A-2 hereto.
5. No Stockholder Rights.
(a) As long as any Escrowed Shares are held in the Escrow
Account, and pending the distribution thereof to Parent or the Holders, as the
case may be, in connection with any distributions from the Escrow Account in
accordance with the terms hereof, the Depositary
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Agent will have the right to exercise any voting rights with respect to the
Escrowed Shares. In connection with any Parent stockholder meetings or
solicitations of proxies or written consents from Parent stockholders, Parent
will direct the Depositary Agent in writing as to the exercise of voting and
consent rights for the Escrowed Shares, which directions shall replicate as
closely as practicable the split of yes, no and abstain votes cast by all other
stockholders of Parent in connection with such meeting or consent. The
Depository Agent shall comply with any such directions of the Parent. In the
absence of such directions from the Parent, the Depository Agent shall not vote
or grant its consent with respect to any of the Escrowed Shares.
(b) Prior to the distribution of the Escrowed Shares in
accordance with the terms hereof, the Holders shall have no rights in the
Escrowed Shares, including without limitation, no rights to sell, assign,
pledge, hypothecate or otherwise dispose of or encumber such Escrowed Shares or
any interest therein.
6. Payments from the Escrow Account.
(a) A Parent Indemnified Party shall initiate a claim against the
Escrow Fund by delivering to the Member Representative, with a copy to the
Depository Agent, a written notice (an "Indemnification Notice"), which
Indemnification Notice shall:
(i) state that such Parent Indemnified Party is a Parent
Indemnified Party under the Merger Agreement and has paid or incurred
one or more Losses that satisfy the indemnification provisions set
forth in Section 8.2 of the Merger Agreement (each, a "Covered Loss");
(ii) state in good faith the aggregate amount (the
"Indemnification Amount") of each such Covered Loss; and
(iii) specify in reasonable detail the nature and basis of each
such Covered Loss.
(b) If the Member Representative shall object in good faith to
any portion of any Indemnification Amount specified in any Indemnification
Notice, the Member Representative shall, within thirty (30) calendar days after
delivery by the Parent Indemnified Party to the Member Representative of such
Indemnification Notice, deliver to the Depository Agent (with a copy to the
Parent Indemnified Party) a certificate, executed by the Member Representative
(a "Certificate of Objections"):
(i) specifying each such amount to which the Member
Representative objects in good faith; and
(ii) specifying in reasonable detail the nature and basis for
each such good faith objection.
Promptly upon receipt of a Certificate of Objections, the Depository Agent shall
deliver a copy of such Certificate of Objections to the Parent Indemnified
Party.
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(c) If the Depository Agent shall not have received a Certificate
of Objections objecting to an Indemnification Amount within thirty (30) calendar
days after delivery to the Member Representative of an Indemnification Notice
specifying such Indemnification Amount, the Holders and the Member
Representative shall be deemed to have acknowledged that the Indemnification
Amount claimed on such Indemnification Notice is correct and final and the
Depository Agent shall thereafter transfer to such Parent Indemnified Party out
of the Escrow Account (such transfer to be applied and deducted from the Escrow
Fund pro rata in accordance with each Holder's Pro Rata Share of the Escrow
Fund) such number of Escrowed Shares with an aggregate value equal to the
Indemnification Amount set forth in the Indemnification Notice, together with
any Proceeds attributable to such transferred Escrowed Shares. For purposes of
this Agreement, each Escrowed Share shall be deemed to have a value equal to the
Parent Common Stock Price (as such amount may be appropriately adjusted for
stock splits, stock dividends, stock combinations, and the like).
(d) If the Depository Agent receives, within thirty (30) calendar
days after delivery to the Member Representative of an Indemnification Notice, a
Certificate of Objections objecting to the Indemnification Amount specified in
such Indemnification Notice, the amount so objected to shall be held by the
Depository Agent and shall not be released from the Escrow Account, except in
accordance with either:
(i) written instructions executed by Parent and the Member
Representative, or
(ii) written instructions from the Parent Indemnified Party and
the final judgment of the arbitrator having jurisdiction over the
matters relating to the claim, as provided in Section 7,
after which time the Depository Agent shall cause: (A) a transfer to the Parent
Indemnified Party in the manner set forth in Section 6(c); provided, that all
references to the Indemnification Amount shall be deemed to be references to the
amount to be transferred to the Parent Indemnified Party as specified in the
written instruction or judgment, as the case may be; and (B) in the event such
written instruction or judgment is delivered following the First Release Date
(as defined below), a distribution to the Holders in an aggregate amount equal
to the amount so objected to and not released pursuant to (A) above (the
"Holdback Release"). Any Holdback Release shall be distributed to each Holder,
in an amount equal to the product of the Holdback Release multiplied by such
Holder's Pro Rata Share of the Escrow Fund, together with any Proceeds
attributable to such released Escrowed Shares.
(e) Subject to Section 11, on the earlier of (i) April 1, 2007 or
(ii) such date as shall have been specified in a joint written notice of Parent
and the Member Representative to the Depository Agent (the "First Release
Date"), the Depository Agent shall distribute a number of Escrowed Shares that
have a value equal to the amount, if any, by which the value of the Escrowed
Shares at such date (valued at the Parent Common Stock Price (as such amount may
be appropriately adjusted for stock splits, stock dividends, stock combinations,
and the like)), exceeds the First Reserved Amount (the "First Released Amount").
The First Released Amount shall be transferred to each Holder, in an amount
equal to the product of the
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First Released Amount multiplied by such Holder's Pro Rata Share of the Escrow
Fund, together with any Proceeds attributable to such released Escrowed Shares.
The "First Reserved Amount" means an amount equal to the aggregate of the
Indemnification Amounts claimed and unpaid (other than claims which shall have
been resolved and for which no payment shall be due), in all Indemnification
Notices delivered to the Depository Agent prior to the First Release Date,
subject to the limitations set forth in Section 8.4 of the Merger Agreement.
(f) Upon the termination of this Agreement in accordance with
Section 10, but subject to Section 11, the Depository Agent shall promptly
distribute the remaining Escrowed Shares to each Holder, in an amount equal to
the product of the remaining value multiplied by such Holder's Pro Rata Share of
the Escrow Fund, together with any Proceeds attributable to such released
Escrowed Shares.
(g) Notwithstanding the provisions of this Section 6, if a Holder
of Units has not submitted to Parent a letter of transmittal in proper form
pursuant to Section 4.1(b) of the Merger Agreement prior to the time of any
distribution to the Holders, the amount deliverable to such Holder shall be
delivered to Parent, to be held by Parent on behalf of such Holder pursuant to
Section 4.1(f) of the Merger Agreement.
(h) Notwithstanding any other provision of this Agreement to the
contrary, at any time prior to the termination of this Agreement, the Depository
Agent shall, if so instructed in writing signed by Parent and the Member
Representative, pay from the Escrow Account, as instructed, to Parent, any
Indemnified Party or any Holder, as directed in such writing, the number of
Escrow Shares and any Proceeds attributable thereto.
7. Resolution of Conflicts
(a) In case the Member Representative shall timely object in
writing to any claim or claims by a Parent Indemnified Party made in any
Indemnification Notice, as provided in Section 6(b), the Member Representative
and the Parent Indemnified Party shall attempt in good faith for thirty (30)
calendar days following delivery of the Certificate of Objections to agree upon
the rights of the respective parties with respect to each of such claims. If the
Member Representative and the Indemnified Party should so agree, a memorandum
setting forth such agreement shall be prepared and signed by both parties and
shall be furnished to the Depository Agent. The Depository Agent shall be
entitled to rely on any such memorandum and shall distribute amounts from the
Escrow Fund in accordance with the terms thereof.
(b) If no such agreement can be reached after good faith
negotiation, either the Parent Indemnified Party or the Member Representative
may, by written notice to the other, demand arbitration of the matter unless the
amount of the damage or loss is at issue in pending litigation with a third
party, in which event arbitration shall not be commenced until such amount is
ascertained or both parties agree to arbitration; and in either such event the
matter shall be settled by arbitration conducted by a single arbitrator. The
arbitrator shall be jointly selected by the Parent Indemnified Party and the
Member Representative within fifteen (15) calendar days after such written
notice is sent, or absent such agreement, such arbitrator shall be
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appointed pursuant to the Commercial Arbitration Rules then in effect of the
American Arbitration Association. The decision of the arbitrator as to the
validity and amount of any claim in such Indemnification Notice shall be binding
and conclusive upon the parties to this Agreement, and the Depository Agent
shall be entitled to act in accordance with such decision and make or withhold
payments out of the Escrow Fund in accordance therewith.
(c) Any such arbitration shall be held in Washington, D.C. under
the Commercial Arbitration Rules then in effect of the American Arbitration
Association. For purposes of this Section 7, in any arbitration hereunder in
which any claim or the amount thereof stated in the Indemnification Notice is at
issue, the Parent Indemnified Party shall be deemed to be the "Non-Prevailing
Party" unless the arbitrator awards the Parent Indemnified Party more than
one-half (1/2) of the amount in dispute; otherwise, the Member Representative
(on behalf of the Holders) shall be deemed to be the Non-Prevailing Party. The
Non-Prevailing Party to an arbitration shall pay its own expenses, the fees of
the arbitrator, the administrative fee of the American Arbitration Association,
and the expenses, including without limitation, attorneys' fees and costs,
reasonably incurred by the other party to the arbitration. Judgment upon any
award rendered by the arbitrators may be entered in any court having
jurisdiction.
8. Tax Matters
(a) The parties intend for federal income tax purposes, that
property held by the Depository Agent shall be treated as delivered to recipient
Unitholders and Accredited Optionholders at the time such property is
distributed to them from escrow (and not at the time of deposit into escrow).
(b) All earnings, if any, on the Escrow Fund shall be treated as
having been received by Parent for United States federal income tax purposes.
(c) The Holders shall provide to the Depository Agent within
thirty (30) days after the Closing Date all forms and information that the
Depository Agent may reasonably require (including, without limitation, IRS
Forms W-8 or W-9, as applicable).
(d) The Depository Agent annually shall file any applicable
information returns with the IRS and provide statements to Parent, with copies
to the Member Representative, documenting any earnings on the Escrow Fund. In
the event that the Depository Agent becomes liable for the payment of Taxes
relating to earnings on the Escrow Fund or any payment made hereunder
(including, but not limited to, withholding Taxes), the Depository Agent may
collect such Taxes directly from the Parent or the applicable Holders. Except as
otherwise provided in this Agreement, the Depository Agent shall have no
obligation to prepare or file any other Tax Returns or to pay any Taxes or
estimated Taxes.
9. Depository Agent.
(a) Duties of the Depository Agent. The Depository Agent shall
have no duties or responsibilities other than those expressly set forth in this
Agreement, and no implied duties or obligations shall be read into this
Agreement against the Depository Agent. The Depository Agent shall have no duty
to enforce any obligation of any Person, other than as provided herein. The
Depository Agent shall be under no liability to anyone by reason of any
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failure on the part of any party hereto or any maker, endorser or other
signatory of any document or any other person to perform such person's
obligations under any such document.
(b) Liability of the Depository Agent.
(i) In performing any duties under this Agreement, the
Depository Agent shall not be liable to any party for consequential damages,
(including, without limitation lost profits) losses, or expenses, except for
gross negligence or willful misconduct on the part of the Depository Agent. The
Depository Agent shall not incur any such liability for any act or failure to
act made or omitted in good faith or for any action taken or omitted in reliance
upon any instrument, including any written statement or affidavit provided for
in this Agreement that the Depository Agent shall in good faith believe to be
genuine, nor will the Depository Agent be liable or responsible for forgeries,
fraud, impersonations, or determining the scope of any representative authority.
In addition, the Depository Agent may consult with legal counsel in connection
with the Depository Agent's duties under this Agreement and shall be fully
protected in any act taken, suffered, or permitted by him/her in good faith in
accordance with the advice of counsel. The Depository Agent is not responsible
for determining and verifying the authority of any person acting or purporting
to act on behalf of any party to this Agreement. The parties shall indemnify and
hold the Depository Agent harmless from any and all liability for acting on an
investment instruction purported to be given by Parent and the Member
Representative to the extent of 50% for Parent and 50% for the Member
Representative (on behalf of the Holders, and which indemnification by the
Member Representative and the Holders shall be solely out of and only to the
extent of the Escrow Fund). The Depository Agent shall not be responsible for
the authenticity of any instructions, or be in any way liable for any
unauthorized instruction or for acting on such an instruction, whether or not
the person giving the instruction was, in fact, an authorized representative of
Parent and the Member Representative.
(ii) In no event shall the Depository Agent be liable to the
parties for any consequential, special, or exemplary damages, including but not
limited to lost profits, from any cause whatsoever arising out of, or in any way
connected with acting upon instructions believed by the Depository Agent to be
genuine. The Depository Agent shall not be liable for any loss from such
investments, including upon the sale or disposition of any investments. The
Depository Agent shall not be liable for any loss arising directly or
indirectly, in whole or in part, from the inability to invest funds on the day
the instructions are received. The Depository Agent shall not be liable for any
loss incurred by the actions of third parties or by any loss arising by error,
failure, or delay in making an investment which is caused by circumstances
beyond the Depository Agent's reasonable control.
(iii) Parent and the Member Representative (on behalf of the
Holders) agree, to the extent of 50% for Parent and 50% for the Member
Representative (on behalf of the Holders, which indemnification by the Member
Representative and the Holders shall be solely out of and only to the extent of
the Escrow Fund), to jointly and severally indemnify and hold the Depository
Agent harmless against any and all losses, claims, damages, liabilities, and
expenses, including reasonable costs of investigation, counsel fees, including
allocated costs of in-house counsel and disbursements that may be imposed on the
Depository Agent or incurred by the Depository Agent in connection with the
performance of its/his/her duties under this Agreement, including but not
limited to any litigation arising from this
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Agreement or involving its subject matter, except in the case of the Depository
Agent's gross negligence or willful misconduct.
(iv) If any controversy arises between the parties to this
Agreement, or with any other party, concerning the subject matter of this
Agreement, its terms or conditions, the Depository Agent will not be required to
determine the controversy or to take any action regarding it. The Depository
Agent may hold all documents and funds and may wait for settlement of any such
controversy by final appropriate legal proceedings or other means as, in the
Depository Agent's discretion, the Depository Agent may require, despite what
may be set forth elsewhere in this Agreement. In such event, the Depository
Agent will not be liable for interest or damage. Furthermore, the Depository
Agent may at its option, file an action of interpleader requiring the parties to
answer and litigate any claims and rights among themselves. The Depository Agent
is authorized to deposit with the clerk of the court all documents and funds
held in escrow, except all costs, expenses, charges and reasonable attorneys'
fees incurred by the Depository Agent due to the interpleader action and which
the parties jointly and severally agree to pay. Upon initiating such action, the
Depository Agent shall be fully released and discharged of and from all
obligations and liability imposed by the terms of this Agreement.
(c) Withdrawal of Depository Agent. The Depository Agent may
resign at any time upon giving at least thirty (30) days' written notice to the
parties; provided, however, that no such resignation shall become effective
until the appointment of a successor Depository Agent, which shall be
accomplished as follows: The parties shall use their reasonable efforts to
mutually agree on a successor Depository Agent within thirty (30) days after
receiving such notice. If the parties fail to agree upon a successor Depository
Agent within such time, the Depository Agent shall have the right to appoint a
successor Depository Agent authorized to do business in the State of California.
The successor Depository Agent shall execute and deliver an instrument accepting
such appointment, and it shall, without further acts, be vested with all the
estates, properties, rights, powers, and duties of the predecessor Depository
Agent as if originally named as the Depository Agent. The Depository Agent shall
thereafter be discharged from any further duties and liability under this
Agreement.
(d) Change of Control of Depository Agent. Any company into which
the Depository Agent may be merged or with which it may be consolidated, or any
company to whom the Depository Agent may transfer a substantial amount of its
business, shall be the successor to the Depository Agent without the execution
or filing of any paper or any further act on the part of any of the parties,
anything herein to the contrary notwithstanding.
(e) Fees. The Depository Agent's fees shall be as set forth on
Exhibit B hereto, payable by Parent. It is understood that the fees and usual
charges agreed upon for services of the Depository Agent shall be considered
compensation for ordinary services as contemplated by this Agreement. In the
event that the conditions of this Agreement are not promptly fulfilled, or if
the Depository Agent renders any service not provided for in this Agreement, or
if the parties request a substantial modification of its terms, or if any
controversy arises, or if the Depository Agent is made a party to, or intervenes
in, any litigation pertaining to this escrow or its subject matter, the
Depository Agent shall be reasonably compensated for such extraordinary services
and reimbursed for all reasonable costs, attorneys' fees, including allocated
costs of in-house counsel, and expenses occasioned by such default, delay,
controversy
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or litigation, and the Depository Agent shall have the right to retain all
documents and/or other things of value at any time held by the Depository Agent
in this escrow until such compensation, fees, costs and expenses are paid. Any
such extraordinary fees, costs and expenses shall be payable 50% by Parent and
50% by the Member Representative (on behalf of the Holders out of the Escrow
Fund and only to the extent of the funds and property comprising the Escrow
Fund).
10. Termination. This Agreement shall terminate on the later of: (a)
the date on which there are no Escrowed Shares or other property remaining in
the Escrow Fund and (b) ten business days following the date on which all claims
made in Indemnification Notices timely delivered to the Depository Agent shall
have been resolved.
11. Holder Representative Costs and Expenses. By virtue of their
approval of the Merger (including this Agreement), the Holders hereby agree to
pay (i) the reasonable fees of the Member Representative relating to its/his/her
services performed in such capacity and (ii) all costs and expenses, including
those of any legal counsel or other professional retained by the Member
Representative, in connection with the acceptance and administration of the
Member Representative's duties hereunder. Subject to the prior right of Parent
to make claims for indemnification hereunder, the Member Representative shall
have the right to recover from distributions to the Holders from the Escrow
Account pursuant to this Agreement, and prior to any such distribution, a number
of Escrowed Shares set forth in a certificate of the Member Representative
delivered to the Depository Agent three (3) business days prior to the date on
which a distribution is to be made to the Holders, which number of shares shall
be equal to (A) any fees, costs and expenses set forth in such certificate,
including those of any legal counsel or other professional retained by the
Member Representative, in connection with the acceptance and administration of
the Holder Representative's duties hereunder, multiplied by (B) the closing
price of Parent Common Stock on the securities exchange or automated quotation
service upon which the Parent Common Stock is then listed or quoted for trading
on the trading day immediately preceding the third business day prior to the
date on which a distribution is to be made to the Holders.
12. Miscellaneous.
(a) Inspection. The Escrow Fund shall at all times be clearly
identified as being held by the Depository Agent hereunder. Any party hereto may
at any time during the Depository Agent's business hours (with reasonable
notice) inspect any records or reports relating to the Escrow Fund.
(b) Controlling Document. To the extent provisions of the Merger
Agreement are inconsistent with the provisions contained herewith, this
Agreement shall supersede the Merger Agreement and be the controlling document;
provided, however, that the provisions of Article VIII of the Merger Agreement
shall control for all purposes, except with regard to the Depository Agent's
duties.
(c) Notices. Unless otherwise provided herein, all notices and
other communications hereunder shall be in writing and shall be deemed given if
(a) delivered in person, (b) transmitted by telecopy (with written
confirmation), (c) mailed by certified or registered mail (return receipt
requested) (in which case such notice shall be deemed given on
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the third (3rd) day after such mailing, but only if deposited at a U.S. Postal
Service office) or (d) delivered by an express courier (with written
confirmation) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
If to Parent:
WebSideStory, Inc.
00000 Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
With a copy (which shall not constitute notice) to:
Xxxxxx & Xxxxxxx LLP
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
If to the Member Representative:
Xxx Xxxxxxx
Xxxxxx, Xxxxxxx & Xxxxxxxx, PLLC
0000 Xxxxxxxxxx Xxxxx
XxXxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy (which shall not constitute notice) to:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Chrysler Center
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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If to the Depository Agent:
U.S. Stock Transfer Corporation
0000 Xxxxxxx Xxx.
Xxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000 000-0000
Attn: Xxxxxxx Xxxxx
Any party may, from time to time, designate any other address to which
any such notice to it or such party shall be sent. Any such notice shall be
deemed to have been delivered upon receipt.
(d) Governing Law. THIS AGREEMENT, THE LEGAL RELATIONS BETWEEN
THE PARTIES AND THE ADJUDICATION AND THE ENFORCEMENT THEREOF, SHALL BE GOVERNED
BY AND INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE
STATE OF DELAWARE WITHOUT REGARD TO APPLICABLE CHOICE OF LAW PROVISIONS THEREOF.
(e) Binding Effect. This Agreement shall be binding upon the
Holders, the parties hereto and their respective successors and permitted
assigns. No provision of this Agreement is intended or shall be construed to
confer upon any entity or Person other than the Holders (solely with respect to
Sections 6(d), 6(e), and 6(f)), the parties hereto and their respective
successors and permitted assigns any benefit, right, remedy or claim under or by
reason of this Agreement or any part hereof. This Agreement may not be assigned
by any of the parties hereto; provided, however, that Parent may assign all or
part of its rights under this Agreement and delegate all or part of its
obligations under this Agreement to (i) a wholly owned Subsidiary of Parent, in
which event all of the rights and powers of Parent and remedies available to
Parent under this Agreement shall extend to and be enforceable by such
Subsidiary (provided that Parent remains jointly and severally liable with such
assignee for any obligations of Parent hereunder after such assignment) or (ii)
any Person who acquires Parent, whether by way of merger or the purchase of all
of Parent's outstanding capital stock or all or substantially all of Parent's
assets. In the event of any such assignment and delegation, the term "Parent" as
used in this Agreement shall be deemed to refer to such Subsidiary or successor
of Parent, as the case may be, where reference is made with respect to actions
to be taken with respect to the transactions contemplated by the Merger
Agreement and this Agreement, and shall be deemed to include both Parent and
such Subsidiary or successor of Parent, as the case may be, where appropriate.
(f) Modification. This Agreement may be amended or modified at
any time by a writing executed by each of Parent, the Member Representative and
the Depository Agent.
(g) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall
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constitute one and the same agreement, it being understood that all of the
parties need not sign the same counterpart.
(h) Headings. The section headings contained in this Agreement
are inserted for convenience only, and shall not affect in any way, the meaning
or interpretation of this Agreement.
(i) Entire Agreement; Severability and Further Assurances. Except
as provided herein, this Agreement together with the Merger Agreement and all
exhibits and schedules attached hereto constitute the entire agreement among the
parties and supersede all prior and contemporaneous agreements and undertakings
of the parties in connection herewith. No failure or delay of a party in
exercising any right, power or remedy may be, or may be deemed to be, a waiver
thereof; nor may any single or partial exercise of any right, power or remedy
preclude any other or further exercise of any right, power or remedy. In the
event that any one or more of the provisions contained in this Agreement, shall,
for any reason, be held to be invalid, illegal or unenforceable in any respect,
then to the maximum extent permitted by Law, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement. Each of
the parties hereto shall, at the request of the other party, deliver to the
requesting party all further documents or other assurances as may reasonably be
necessary or desirable in connection with this Agreement.
(j) No Third Party Beneficiaries. This Agreement is not intended
to confer upon any Person other than the parties hereto (and the Holders with
respect to Sections 6(d), 6(e), and 6(f)) any rights or remedies.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first written above.
WEBSIDESTORY, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
XXX XXXXXXX,
as Member Representative
/s/ Xxx Xxxxxxx
----------------------------------------
U.S. STOCK TRANSFER CORPORATION
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
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