Exhibit 10.2
SHAREHOLDER SUPPORT AGREEMENT
THIS SHAREHOLDER SUPPORT AGREEMENT (this "Agreement") is made and entered
into as of February 8, 2005, by and among WebSideStory, Inc., a Delaware
corporation ("Parent"), and each of the undersigned shareholders (each a
"Shareholder") of Avivo Corporation, a California corporation (the "Company").
Recitals
A. Concurrently with the execution and delivery hereof, Parent, WSSI
Acquisition Company, a California corporation and a direct, wholly owned
subsidiary of Parent ("Merger Sub"), and the Company 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 two-step merger (the "Merger") of Merger Sub with and into the
Company, and the Company with and into a wholly-owned subsidiary of Parent, in
accordance with the terms of the Merger Agreement.
B. Shareholder is the beneficial owner (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended) of, and has the right to direct the
voting of, the number of shares of Company Common Stock and Company Preferred
Shares indicated on the signature page of this Agreement.
C. In consideration of the execution and delivery of the Merger Agreement
by Parent and Merger Sub, Shareholder desires to agree to vote the Shares (as
defined herein) over which Shareholder has voting power so as to facilitate the
consummation of the Merger.
NOW, THEREFORE, intending to be legally bound, the parties hereto hereby
agree as follows:
1. Certain Definitions. Capitalized terms used but not otherwise defined
herein shall have the meanings ascribed thereto in the Merger Agreement. For all
purposes of and under this Agreement, the following terms shall have the
following respective meanings:
"Shares" means (i) all shares of Company Common Stock owned,
beneficially or of record, by Shareholder as of the date hereof, (ii) all
additional shares of Company Common Stock acquired by Shareholder,
beneficially or of record, during the period commencing with the execution
and delivery of this Agreement and expiring on the Expiration Date (as
such term is defined in Section 10 below), including, without limitation,
shares of Company Common Stock acquired by Shareholder upon the exercise
of Company Options or conversion of Company Preferred Stock, (iii) all
shares of Company Preferred Stock owned, beneficially or of record, by
Shareholder as of the date hereof, and (iv) all additional shares of
Company Preferred Stock acquired by Shareholder, beneficially or of
record, during the period commencing with the execution and delivery of
this Agreement and expiring on the Expiration Date.
"Transfer" means, with respect to any security, the direct or
indirect assignment, sale, transfer, tender, pledge, hypothecation, or the
grant, creation or sufferage of an option, lien or encumbrance in or upon,
or the placement in trust, or other disposition of such security or any
right, title or interest therein (including, but not limited to, any right
or power to vote to which the holder thereof may be entitled, whether such
right or power is granted by proxy or otherwise), or the record or
beneficial ownership thereof, the offer to make such a sale, transfer or
other disposition, and each agreement, arrangement or understanding,
whether or not in writing, to effect any of the foregoing.
2. Transfer and Voting Restrictions.
(a) At all times during the period commencing with the execution and
delivery of this Agreement and expiring on the Expiration Date, Shareholder
shall not, except in accordance with the Merger Agreement, Transfer any of the
Shares, or discuss, negotiate, make an offer or enter into an agreement,
commitment or other arrangement with respect thereto; provided that Shareholder
may Transfer any of the Shares (i) as bona fide gifts, (ii) to any family
member, trust or other Person in a transaction that is principally for estate
planning purposes (iii) to any beneficiary, executor, trust, legal guardian or
legal representative upon the death or disability of Shareholder or (iv) to a
partnership transferring to its partners or former partners in accordance with
partnership interests, or (v) to a limited liability company transferring to its
members or former members in accordance with their interest in the limited
liability company, (collectively, "Permitted Transfers"); provided that, prior
to any such Permitted Transfer, the transferee shall have (x) executed a
counterpart of this Agreement and (y) agreed in writing to hold such Shares (or
interest in such Shares) subject to all of the terms and provisions of this
Agreement.
(b) From and after the date hereof until the Expiration Date,
Shareholder will not enter into any voting agreement with any Person with
respect to any of the Shares, grant any Person any proxy (revocable or
irrevocable) or power of attorney with respect to any of the Shares, deposit any
of the Shares in a voting trust or otherwise enter into any agreement or
arrangement with any Person limiting or affecting Shareholder's legal power,
authority or right to vote the Shares in favor of the approval and adoption of
the Merger Agreement (the "Merger Proposal").
(c) Shareholder agrees that Parent may notify the Company of the
restriction on Transfer set forth in this Section 2.
3. Agreement to Vote Shares.
(a) Prior to the Expiration Date, at every meeting of the
shareholders of the Company called, and at every adjournment or postponement
thereof, and on every action or approval by written consent of the shareholders
of the Company, Shareholder (in Shareholder's capacity as such) shall appear at
the meeting or otherwise cause the Shares to be present thereat for purposes of
establishing a quorum and, to the extent not voted by the persons appointed as
proxies pursuant to this Agreement, shall vote the Shares (i) in favor of the
Merger Proposal, (ii) against the approval or adoption of any proposal made in
opposition to, or in competition with, the Merger Proposal, and (iii) against
any of the following (to the extent unrelated to the
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Merger or the Merger Proposal): (A) any merger, consolidation or business
combination involving the Company or any of its subsidiaries other than the
Merger; (B) any sale, lease or transfer of all or substantially all of the
assets of the Company or any of its subsidiaries; (C) any reorganization,
recapitalization, dissolution, liquidation or winding up of the Company or any
of its subsidiaries; or (D) any other action that is intended, or would
reasonably be expected to, impede, interfere with or materially delay, postpone,
discourage or adversely affect the consummation of the Merger, including, but
not limited to, any amendment of the Company Articles of Incorporation or
Company Bylaws (each of (ii) and (iii), a "Competing Transaction").
(b) If Shareholder is the beneficial owner, but not the record
holder, of the Shares, Shareholder agrees to take all reasonable actions
necessary to cause the record holder and any nominees to vote all of the Shares
in the manner provided in Section 3(a).
4. Grant of Irrevocable Proxy.
(a) Shareholder hereby irrevocably (to the fullest extent permitted
by law) grants to, and appoints, Parent and each of its executive officers and
any of them, in their capacities as officers of Parent, Shareholder's proxy and
attorney-in-fact (with full power of substitution and re-substitution), for and
in the name, place and stead of Shareholder, to vote the Shares, to instruct
nominees or record holders to vote the Shares, or grant a consent or approval in
respect of such Shares in favor of the Merger Proposal and against any Competing
Transaction.
(b) Shareholder represents that any proxies heretofore given in
respect of the Shares that would affect Shareholder's ability to vote its Shares
in accordance with Section 3 that may still be in effect are not irrevocable,
and that any such proxies are hereby revoked.
(c) Shareholder hereby affirms that the irrevocable proxy set forth
in this Section 4 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance of
the duties of Shareholder under this Agreement. Shareholder hereby further
affirms that the irrevocable proxy is coupled with an interest and may under no
circumstances be revoked. Such irrevocable proxy is executed and intended to be
irrevocable in accordance with the applicable provisions of the General
Corporation Law of the State of California.
5. No Solicitation. From and after the date hereof until the Expiration
Date, Shareholder, in his or her capacity as a Shareholder, shall not directly
or indirectly, solicit, initiate or encourage any offer from, or engage or
participate in any discussions or negotiations with, or provide any confidential
information about the Company to, any Person other than Parent concerning, or
enter into any agreement providing for, or otherwise effect or consummate, any
Competing Tranasaction. If, notwithstanding the foregoing, Shareholder shall
receive any proposal for such a transaction, he or she shall promptly inform
Parent.
6. Action in Shareholder Capacity Only. Shareholder makes no agreement or
understanding herein as director or officer of the Company or as a fiduciary of,
or participant in, the Company Option Plan. Shareholder has entered into this
Agreement solely in his or her capacity as a record holder and/or beneficial
owner of Shares, and nothing herein shall limit or
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affect any actions taken in his or her capacity as an officer or director of the
Company or as a fiduciary of, or participant in, the Company Option Plan.
7. Representations and Warranties of Shareholder.
(a) Shareholder hereby represents and warrants to Parent as follows:
(i) Shareholder is the beneficial or record owner of the shares of Company
Capital Stock indicated on the signature page of this Agreement, free and clear
of any and all pledges, liens, security interests, claims, charges,
restrictions, options or encumbrances (except as the same may arise under
securities laws); (ii) Shareholder does not beneficially own any securities of
the Company other than the shares of Company Capital Stock and Company Options
set forth on the signature page of this Agreement; (iii) Shareholder has full
power and authority to make, enter into and carry out the terms of this
Agreement and to grant the irrevocable proxy as set forth in Section 4; and (iv)
this Agreement has been duly and validly executed and delivered by Shareholder
and constitutes a valid and binding agreement of Shareholder enforceable against
it/him/her in accordance with the Agreement's terms, subject to laws of general
application relating to injunctive relief or other equitable remedies and
applicable bankruptcy, insolvency and other laws relating to or affecting the
enforcement of creditors' rights generally.
(b) Except for this Agreement or as otherwise permitted by this
Agreement, Shareholder has full legal power, authority and right to vote or to
direct the voting of all of the Shares then owned of record or beneficially by
him or her, in favor of the Merger Proposal without the consent or approval of,
or any other action on the part of, any other Person.
(c) The execution and delivery of this Agreement and the performance
by Shareholder of his or her agreements and obligations hereunder will not
result in any breach or violation of or be in conflict with or constitute a
default under any term of any agreement, judgment, injunction, order, decree,
law, regulation or arrangement to which Shareholder is a party or by which
Shareholder (or any of his or her assets) is bound, except for any such breach,
violation, conflict or default which, individually or in the aggregate, would
not impair or adversely affect Shareholder's ability to perform his or her
obligations under this Agreement or render inaccurate any of the representations
made by him or her herein.
8. Waiver of Rights of Appraisal. Shareholder hereby waives any rights of
appraisal with respect to the Merger, or rights to dissent from the Merger, that
such Shareholder may have under the applicable provisions of the General
Corporation Law of the State of California.
9. Confidentiality. Shareholder recognizes that successful consummation of
the transactions contemplated by the Merger Agreement may be dependent upon
confidentiality with respect to the matters referred to herein. In this
connection, pending public disclosure thereof by Parent and the Company,
Shareholder hereby agrees not to disclose or discuss such matters with anyone
not a party to this Agreement (other than its counsel, affiliated parties,
advisors, if any, and the executive officers of the Company) without the prior
written consent of Parent and the Company (which consent shall not be
unreasonably withheld, conditioned or delayed), except for disclosures
Shareholder's counsel advises are necessary in order to fulfill any obligations
of Shareholder imposed by Law, in which event Shareholder shall give notice of
such disclosure to Parent and the Company as promptly as practicable so as to
enable Parent and the Company to
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seek a protective order from a court of competent jurisdiction with respect
thereto. The Company shall be a third party beneficiary of this Section 9.
10. Termination. This Agreement shall terminate and be of no further force
or effect whatsoever as of the earlier of (i) such date and time as the Merger
Agreement shall have been validly terminated pursuant to the terms of Article IX
thereof, (ii) the Effective Time or (iii) upon the determination by the
California Department of Corporations that it shall not approve the terms and
conditions of the Merger Agreement unless and until this Agreement is terminated
(the "Expiration Date"). Upon such termination, no party shall have any further
obligations or liabilities hereunder; provided, that such termination shall not
relieve any party from liability for any breach of this Agreement prior to such
termination.
11. Miscellaneous Provisions.
(a) Amendments, Modifications and Waivers. No amendment,
modification or waiver in respect of this Agreement shall be effective against
any party unless it shall be in writing and signed by Parent and the
Shareholder.
(b) Entire Agreement. This Agreement constitutes the entire
agreement among the parties to this Agreement and supersede all other prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter hereof.
(c) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California, regardless of the laws
that might otherwise govern under applicable principles of conflicts of law
thereof.
(d) Assignment and Successors. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, provided that
except as otherwise specifically provided herein, neither this Agreement nor any
of the rights, interests or obligations of the parties hereto may be assigned by
any party hereto without prior written consent of the other party hereto except
as expressly contemplated by Section 2(a) hereof and except that Parent, without
obtaining the consent of Shareholder, shall be entitled to assign this Agreement
to any party to which it is entitled to assign this Agreement to under Section
11.6 under the Merger Agreement but no assignment by Parent under this Section
11(d) shall relieve Parent of its obligations under this Agreement. Any
assignment in violation of the foregoing shall be void and of no effect.
(e) No Third Party Rights. Except as provided by Section 9 hereof,
nothing in this Agreement, express or implied, is intended to or shall confer
upon any Person (other than the parties hereto) any right, benefit or remedy of
any nature whatsoever under or by reason of this Agreement.
(f) Cooperation. Shareholder agrees to cooperate fully with Parent
and to execute and deliver such further documents, certificates, agreements and
instruments and to take such other actions as may be reasonably requested by
Parent to evidence or reflect the transactions contemplated by this Agreement
and to carry out the intent and purpose of this Agreement. Shareholder hereby
agrees that Parent may publish and disclose such Shareholder's
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identity and ownership of Shares and the nature of such Shareholder's
commitments, arrangements and understandings under this Agreement as may be
required by applicable Law in any filing made by Parent with the Securities and
Exchange Commission relating to the Proposed Transaction.
(g) Severability. If any provision of this Agreement is held invalid
or unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
(h) Specific Performance; Injunctive Relief. Shareholder
acknowledges that Parent (and with respect to Section 9 hereof, the Company)
shall be irreparably harmed and that there shall be no adequate remedy at law
for a violation of any of the covenants or agreements of Shareholder set forth
in this Agreement. Therefore, Shareholder hereby agrees that, in addition to any
other remedies that may be available to Parent (and with respect to Section 9
hereof, the Company), as applicable upon any such violation, such party shall
have the right to enforce such covenants and agreements by specific performance,
injunctive relief or by any other means available to such party at law or in
equity without posting any bond or other undertaking.
(i) Notices. All notices, consents, requests, claims, demands and
other communications under this Agreement shall be in writing and shall be
deemed given if (a) delivered to the appropriate address by hand or overnight
courier (providing proof of delivery), or (b) sent by facsimile or e-mail with
confirmation of transmission by the transmitting equipment confirmed with a copy
delivered as provided in clause (a), in each case to the parties at the
following address, facsimile or e-mail address (or at such other address,
facsimile or e-mail address for a party as shall be specified by like notice):
(i) if to Parent or Company, to the address, e-mail address or facsimile
provided in the Merger Agreement, including to the persons designated therein to
receive copies; and (ii) if to Shareholder, to Shareholder's address, e-mail
address or facsimile shown below Shareholder's on the signature pages hereof.
(j) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same instrument, and shall become effective when
counterparts have been signed by each of the parties and delivered to the other
parties; it being understood that all parties need not sign the same
counterpart.
(k) Headings. The headings contained in this Agreement are for the
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
[Signatures on the Following Pages]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed as of the date first above written.
WEBSIDESTORY, INC.:
__________________________________________
By:
Its:
SHAREHOLDER:
SOFINNOVA CAPITAL III,
a ______________________
By: ______________________________________
Name:
Title:
Address:
_________________________
_________________________
_________________________
Telephone:(___) ________-_______________
Facsimile:(___) ________-_______________
E-Mail Address: ___________________
Shares Beneficially Owned:
___________ shares of Company Common Stock
___________ shares of Company Series A Preferred Stock
___________ shares of Company Series B Preferred Stock
___________ shares of Company Series C Preferred Stock
___________ Company Options
[Counterpart Signature Page to Shareholder Support Agreement]
SHAREHOLDER:
SOFINNOVA VENTURE AFFILIATES IV, L.P.,
a ____________ limited partnership
By: ______________________________________
Name:
Title:
Address:
_________________________
_________________________
_________________________
Telephone:(___) ________-_______________
Facsimile:(___) ________-_______________
E-Mail Address: ___________________
Shares Beneficially Owned:
___________ shares of Company Common Stock
___________ shares of Company Series A Preferred Stock
___________ shares of Company Series B Preferred Stock
___________ shares of Company Series C Preferred Stock
___________ Company Options
[Counterpart Signature Page to Shareholder Support Agreement]
SHAREHOLDER:
SOFINNOVA VENTURE PARTNERS, L.P.,
a _______ limited partnership
By: ______________________________________
Name:
Title:
Address:
_________________________
_________________________
_________________________
Telephone:(___) ________-_______________
Facsimile:(___) ________-_______________
E-Mail Address: ___________________
Shares Beneficially Owned:
___________ shares of Company Common Stock
___________ shares of Company Series A Preferred Stock
___________ shares of Company Series B Preferred Stock
___________ shares of Company Series C Preferred Stock
___________ Company Options
[Counterpart Signature Page to Shareholder Support Agreement]
SHAREHOLDER:
NEW ENTERPRISE ASSOCIATES 10, L.P.,
a __________ limited partnership
By: ______________________________________
Name:
Title:
Address:
_________________________
_________________________
_________________________
Telephone:(___) ________-_______________
Facsimile:(___) ________-_______________
E-Mail Address: ___________________
Shares Beneficially Owned:
___________ shares of Company Common Stock
___________ shares of Company Series A Preferred Stock
___________ shares of Company Series B Preferred Stock
___________ shares of Company Series C Preferred Stock
___________ Company Options
[Counterpart Signature Page to Shareholder Support Agreement]
SHAREHOLDER:
NEA VENTURES 2000, L.P.,
a __________ limited partnership
By: ______________________________________
Name:
Title:
Address:
_________________________
_________________________
_________________________
Telephone:(___) ________-_______________
Facsimile:(___) ________-_______________
E-Mail Address: ___________________
Shares Beneficially Owned:
___________ shares of Company Common Stock
___________ shares of Company Series A Preferred Stock
___________ shares of Company Series B Preferred Stock
___________ shares of Company Series C Preferred Stock
___________ Company Options
[Counterpart Signature Page to Shareholder Support Agreement]
SHAREHOLDER:
__________________________________
XXXXXXX X. XXXXXXX
Address:
_________________________
_________________________
_________________________
Telephone:(___) ________-_______________
Facsimile:(___) ________-_______________
E-Mail Address: ___________________
Shares Beneficially Owned:
___________ shares of Company Common Stock
___________ shares of Company Series A Preferred Stock
___________ shares of Company Series B Preferred Stock
___________ shares of Company Series C Preferred Stock
___________ Company Options
[Counterpart Signature Page to Shareholder Support Agreement]
SHAREHOLDER:
__________________________________
XXXXXX X. XXXXXX
Address:
_________________________
_________________________
_________________________
Telephone:(___) ________-_______________
Facsimile:(___) ________-_______________
E-Mail Address: ___________________
Shares Beneficially Owned:
___________ shares of Company Common Stock
___________ shares of Company Series A Preferred Stock
___________ shares of Company Series B Preferred Stock
___________ shares of Company Series C Preferred Stock
___________ Company Options
[Counterpart Signature Page to Shareholder Support Agreement]
SHAREHOLDER:
__________________________________
XXXXXXX X. XXXXXXXX
Address:
_________________________
_________________________
_________________________
Telephone:(___) ________-_______________
Facsimile:(___) ________-_______________
E-Mail Address: ___________________
Shares Beneficially Owned:
___________ shares of Company Common Stock
___________ shares of Company Series A Preferred Stock
___________ shares of Company Series B Preferred Stock
___________ shares of Company Series C Preferred Stock
___________ Company Options
[Counterpart Signature Page to Shareholder Support Agreement]
SHAREHOLDER:
__________________________________
XXXXX X. XXXXXXX
Address:
_________________________
_________________________
_________________________
Telephone:(___) ________-_______________
Facsimile:(___) ________-_______________
E-Mail Address: ___________________
Shares Beneficially Owned:
___________ shares of Company Common Stock
___________ shares of Company Series A Preferred Stock
___________ shares of Company Series B Preferred Stock
___________ shares of Company Series C Preferred Stock
___________ Company Options
[Counterpart Signature Page to Shareholder Support Agreement]
