EXHIBIT 10.16
AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
This Amended and Restated Executive Employment Agreement (this
"AGREEMENT") is entered into effective as of July 21, 2004 (the "EFFECTIVE
DATE") by and between WebSideStory, Inc. (the "COMPANY") and Xxxx Xxxxxxxx (the
"EXECUTIVE").
This Agreement amends and restates that certain Executive Employment
Agreement, dated as of April 1, 2003, between Executive and Company (the
"ORIGINAL AGREEMENT").
All share numbers set forth in this Agreement give effect to the
3.5-for-1 reverse stock split to be implemented by the Company in connection
with its initial public offering ("IPO").
1. Employment. Company hereby agrees to continue to employ Executive, and
Executive hereby accepts such continued employment, upon the terms and
conditions set forth herein.
2. Duties.
2.1 Position. Executive is employed as President, Chief Executive
Officer and Chairman of Company's Board of Directors (the "BOARD") and shall
have the duties and responsibilities assigned by the Board both upon initial
hire and as may be reasonably assigned from time to time. Executive shall
perform faithfully and diligently all duties assigned to him.
2.2 Best Efforts/Full-time. Executive will expend his best efforts
on behalf of Company, and will abide by all policies and decisions made by
Company, as well as all applicable federal, state and local laws, regulations or
ordinances. Executive will act in the best interest of Company at all times.
Executive shall devote his full business time and efforts to the performance of
his assigned duties for Company, unless Executive notifies the Board in advance
of his intent to engage in other paid work and receives the Board's express
written consent to do so. Notwithstanding the foregoing, Executive may serve on
up to two (2) boards of for-profit companies and one (1) board of a
not-for-profit entity provided that Executive's service thereon does not impair
Executive's ability to perform his duties under this Agreement.
3. At-Will Employment Relationship. Executive's employment with Company is
at-will and not for any specified period and may be terminated at any time, with
or without cause or advance notice, by either Executive or Company. In addition,
subject to Executive's right to terminate his employment for Good Reason (as
defined below) as set forth in Section 7.1, Company reserves the right to modify
Executive's position or duties to meet business needs and to use discretion in
deciding on appropriate discipline. No representative of Company, other than an
authorized representative of the Board, has the authority to alter the at-will
employment relationship. Any change to the at-will employment relationship must
be by specific, written agreement signed by Executive and an authorized
representative of the Board. Nothing in this Agreement is intended to or should
be construed to contradict, modify or alter this at-will relationship.
4. Compensation.
4.1 Base Salary. As compensation for Executive's performance of his
duties hereunder, Company shall pay to Executive a base salary of $310,500 per
year, less applicable withholdings and deductions, in accordance with Company's
normal payroll procedures (the "BASE SALARY").
4.2 Performance Bonus. In addition to the Base Salary and
conditioned upon Executive's continued employment with Company, Executive will
be eligible to earn an annual
"PERFORMANCE BONUS" of up to $175,000 as determined by the Compensation
Committee of the Board (the "COMPENSATION COMMITTEE") and based upon Executive's
achievement of goals and objectives to be mutually agreed upon by Executive and
the Compensation Committee. The Performance Bonus will be determined by the
Compensation Committee and paid on an annual basis during the first quarter of
each fiscal year.
4.3 Equity Compensation. As further compensation for Executive's
performance of his duties hereunder, Company agrees as follows:
(a) Company has granted to Executive a right to purchase up to
48 shares of Series D Convertible Redeemable Participating Preferred Stock (the
"WARRANT SHARES") of Company, at an exercise price of $0.001 per share, pursuant
to the terms and conditions of that certain Warrant to Purchase Series D
Preferred Stock dated as of April 1, 2003 entered into between the parties (the
"WARRANT").
(b) Executive has purchased 571,248 shares (the "COMMON
SHARES") of Company's common stock (the "COMMON STOCK") of Company, at a
purchase price of $0.001 per share (the "PURCHASE PRICE"), subject to the terms
and conditions of that certain Common Stock Purchase Agreement dated as of April
1, 2003 entered into between the parties (the "PURCHASE AGREEMENT").
(c) Effective as of the date on which the registration
statement on Form S-1 filed in connection with Company's IPO is declared
effective, provided that such date occurs on or before December 31, 2004,
Company will grant to Executive a stock option to purchase 285,714 shares of
Company Common Stock, at a per share exercise price equal to the initial price
to the public of a share of Common Stock (the "IPO OPTION"). Such options shall
vest in forty-eight (48) equal monthly installments on the first day of each
calendar month commencing on April 1, 2006, subject to Executive's continued
employment by or service to Company on each such date. The IPO Option will be an
incentive stock option to the extent permissible under the Internal Revenue Code
of 1986, as amended. The IPO Option will be granted pursuant to, and subject to
the terms and conditions of, Company's incentive award plan.
(d) Upon a Change of Control (as defined below), (i)
Executive's right to purchase Warrant Shares shall accelerate with respect to
one hundred percent (100%) of the Warrant Shares unvested on the effective date
of such Change of Control, and (ii) Company's right to repurchase the Common
Shares issued pursuant to the Purchase Agreement shall lapse with respect to
seventy-five percent (75%) of such Common Shares unvested on the effective date
of such Change of Control. In addition, in the event of a Change of Control on
or after April 1, 2006, the vesting of the IPO Option shall accelerate with
respect to seventy-five percent (75%) of the unvested portion thereof. For
purposes hereof, a "CHANGE OF CONTROL" is defined as (A) a merger or
consolidation of Company with or into another corporation or other entity (with
respect to which less than a majority of the outstanding voting power of the
surviving or consolidated corporation is held by persons who are shareholders of
the Corporation immediately prior to such event); (B) the sale or transfer of
all or substantially all of the properties and assets of Company; (C) any
purchase by any party (or group of affiliated parties) of shares of capital
stock of Company (either through a negotiated stock purchase or a tender for
such shares), the effect of which is that such party (or group of affiliated
parties) that did not beneficially own a majority of the voting power of the
outstanding shares of capital stock of Company immediately prior to such
purchase beneficially owns at least a majority of such voting power immediately
after such purchase; (D) the redemption or repurchase of shares representing a
majority of the voting power of the outstanding shares of capital stock of
Company; or (E) of any other change of control of fifty percent (50%) or more of
the outstanding voting power of Company in a single transaction or series of
related transactions, but
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for purposes of this subsection (E) excluding an underwritten public offering by
Company of shares of Common Stock or other securities.
4.4 Change of Control Bonus. Subject to Executive's continued
employment with Company, Executive shall be entitled to receive a "CHANGE OF
CONTROL BONUS" equal to $500,000.00, less applicable withholdings and
deductions, payable, in the form of consideration to be received in such Change
of Control, within five (5) business days of the effective date of any Change of
Control resulting in net proceeds (whether cash, stock or other property) to
Company's stockholders having an aggregate Fair Market Value (as defined below)
sufficient to cover all then existing liabilities and obligations of Company
including, without limitation, the payment of this Change of Control Bonus.
Notwithstanding the foregoing, the amount of the Change of Control Bonus shall
be reduced on a dollar-for-dollar basis by the aggregate Fair Market Value of
the Warrant Shares and the Common Shares issued pursuant to the Purchase
Agreement (or the consideration to be received in exchange therefor) on the
effective date of such Change of Control; provided, however, that the Change of
Control Bonus shall cease to be payable at such time as Executive shall have
received aggregate gross proceeds from the sale of the Warrant Shares, the
Common Shares issued pursuant to the Purchase Agreement or any other shares of
the Company's capital stock which may be issued or awarded to Executive by the
Company (whether pursuant to the exercise of stock options or otherwise) equals
$500,000. For purposes of this Agreement, "FAIR MARKET VALUE" means the value of
a share of stock or other property as stated in the operative merger or other
change of control transaction document, or if no such document exists or any
such document is silent as to such, then as reasonably determined in good faith
by the Board.
4.5 Performance and Salary Review. The Compensation Committee will
periodically review Executive's performance on no less than an annual basis.
Executive's salary or other compensation, if any, may be increased by the
Compensation Committee in its sole and absolute discretion but may not be
decreased without Executive's written consent. Any changes to Executive's salary
or other compensation will be reflected in an amendment to this Agreement.
4.6 Withholdings and Taxes. All payments made by Company under this
Agreement will be less all employment taxes, insurance payments and any other
applicable withholdings and deductions in accordance with state and federal law.
5. Benefits.
5.1 Benefits Generally. Executive shall have the right, on the same
basis as other employees of Company, to participate in and to receive the
benefits of Company's employee benefit plans and vacation, holiday and business
expense reimbursement policies, each as in effect from time to time.
5.2 Customary Fringe Benefits. Executive will be eligible for all
customary and usual fringe benefits generally available to executives of Company
subject to the terms and conditions of Company's benefit plan documents. Company
reserves the right to change or eliminate the fringe benefits on a prospective,
company-wide basis, at any time.
5.3 Relocation Expenses. Company agrees to reimburse Executive up to
a maximum of $30,000, for reasonable relocation expenses incurred in connection
with his move to San Diego, California. Reasonable relocation expenses include
costs incurred while searching for a new residence, moving and storage of
household goods, relocation travel and attorney's fees. To obtain reimbursement,
Executive agrees to furnish receipts documenting actual moving and relocation
expenses incurred. All payments made to Executive for relocation expenses will
be taxable as required by applicable law.
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5.4 Vacation. Executive shall be eligible to accrue at least three
(3) weeks of paid vacation per year. All other terms and conditions of
Executive's vacation will be governed by Company policy.
6. Business Expenses. Executive will be reimbursed for all reasonable,
out-of-pocket business expenses incurred in the performance of his duties on
behalf of Company including, without limitation, reasonable expenses incurred by
Executive as he commutes from Atlanta, Georgia to San Diego, California prior to
Executive's relocation to California. To obtain reimbursement, expenses must be
submitted promptly with appropriate supporting documentation in accordance with
Company's policies.
7. Termination of Executive's Employment. Upon the termination
(voluntarily or otherwise) of Executive's employment with Company, neither party
shall have any continuing obligations or liabilities with respect to
compensation, benefits, or severance except as set forth in this Section 7. In
the event of any termination (voluntarily or otherwise) of Executive's
employment, Executive shall be entitled to accrued and unpaid compensation and
benefits through the date of termination.
7.1 Termination Without Cause or for Good Reason/Severance. Although
Executive's employment is at-will and either Executive or Company can terminate
the employment relationship at any time, with or without cause or advance
notice, in the event Company terminates Executive's employment without Cause (as
defined below) or Executive terminates his employment for Good Reason (as
defined below), Executive will receive the "SEVERANCE PACKAGE" described in
subsection 7.1(a) below, provided that he complies with all of the conditions
set forth in subsection 7.1(b) below:
(a) Severance Package. The Severance Package will consist of
the following:
(i) A "SEVERANCE PAYMENT" equal to (a) one (1) year of
Base Salary, less applicable taxes and withholdings, payable in twelve (12)
equal monthly installments; and (b) continuation of Executive's group health
benefits for a one (1)-year period following the date of termination, provided
Company's insurance carrier allows for such benefits continuation. In the event
Company's insurance carrier does not allow for such coverage continuation,
Company agrees to pay the premiums required to continue Executive's group health
care coverage for the 1-year period, under the applicable provisions of the
Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), provided that
Executive elects to continue and remains eligible for these benefits under COBRA
and does not obtain health coverage through another employer during this period.
(ii) Effective on the date of termination, Executive's
right to purchase Warrant Shares shall accelerate with respect to fifty percent
(50%) of the Warrant Shares unvested on the date of termination (provided that
if such termination occurs within one hundred thirty-five (135) days prior to
the date Company enters into an agreement for a Change of Control, then
effective on the date Company enters into an agreement for a Change of Control,
Executive's right to purchase Warrant Shares shall accelerate with respect to
one hundred percent (100%) of the Warrant Shares). Further, Executive's rights
to exercise the Warrant with respect to vested Warrant Shares shall continue for
a period of one hundred forty (140) days following the date of Company's
termination of Executive's employment; provided that, except as set forth in the
previous sentence, vesting of Warrant Shares shall not continue during such
140-day period;
(iii) Effective on the date of termination, Company's
right to repurchase Common Shares issued pursuant to the Purchase Agreement
shall lapse with respect to fifty
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percent (50%) of the Common Shares which are unvested on the date of
termination. Any remaining unvested Common Shares issued pursuant to the
Purchase Agreement with respect to which Company's repurchase right does not
lapse pursuant to the previous sentence shall remain outstanding subject to the
terms of the Purchase Agreement for a period of one hundred thirty-five (135)
days following the date of termination; provided that, except as set forth in
the next sentence, vesting of such Common Shares shall not continue during such
135-day period. If Company enters into an agreement for a Change of Control on
or before the end of such 135-day period, then effective on the date Company
enters into an agreement for a Change of Control, Company's rights to repurchase
the Common Shares issued pursuant to the Purchase Agreement shall lapse in full.
If Company does not enter into an agreement for a Change of Control on or before
the end of such 135-day period, Company may exercise its right to repurchase
such unvested Common Shares pursuant to the Purchase Agreement and the period
during which such repurchase right may be exercised pursuant to the Purchase
Agreement shall commence on the 136th day following Executive's termination. If
such termination occurs within twelve (12) months following a Change of Control,
then Company's rights to repurchase the Common Shares issued pursuant to the
Purchase Agreement shall lapse in full on the date of termination.
(iv) If such termination occurs prior to April 1, 2006
and within one hundred thirty-five (135) days prior to the date Company enters
into an agreement for a Change of Control or within twelve (12) months following
a Change of Control, the vesting of the IPO Option shall accelerate with respect
to fifty percent (50%) of the unvested portion thereof on (A) with respect to a
termination prior to the date Company enters into an agreement for a Change of
Control, the date Company enters into an agreement for a Change of Control, or
(B) with respect to a termination within twelve (12) months following a Change
of Control, the date of such termination; provided that if termination is for
Good Reason, such accelerated vesting will occur only if Good Reason for such
termination arises as a result of one of the events described in clause (ii) or
(iii) of Section 7.4(b) below.
(v) If such termination occurs within one hundred
thirty-five (135) days prior to the date Company enters into an agreement for a
Change of Control, then effective on the date Company enters into an agreement
for a Change of Control, Executive shall be entitled to receive the Change of
Control Bonus, subject to the limitations and reductions set forth in Section
4.4.
(b) Conditions Precedent to Severance Package. Company's
obligations to provide, and Executive's rights to receive, the Severance Package
are conditioned precedent upon: (i) Executive's compliance with all surviving
provisions of this Agreement as specified in subsection 13.10 below; (ii)
Executive's execution and delivery a full general, mutual release of all claims
in substantially the form attached hereto as Exhibit A; and (3) Executive's
agreement to act as a consultant for Company, without further compensation, for
thirty (30) days following the termination of the employment relationship, if
requested to do so by Company.
7.2 Termination For Cause by Company/Voluntary Resignation By
Executive. In the event Company terminates Executive's employment for Cause or
Executive voluntarily resigns from his employment without Good Reason, (i)
Executive will only be entitled to receive accrued and unpaid compensation and
benefits through the date of termination and (ii) Company will be deemed to have
provided to Executive the notice, if any, required by the Purchase Agreement for
Company's exercise of its rights to repurchase all shares of Common Stock
subject to repurchase rights in favor of Company. Executive will be entitled to
receive no other compensation or benefits from Company including, without
limitation, the Severance Package described in subsection 7.1(a) above.
7.3 Termination For Disability or Death. In the event that,
following Executive's relocation to California, Company terminates Executive's
employment for (i) Executive's failure to perform the essential functions of
Executive's position, with or without reasonable accommodation, due
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to a mental or physical disability or (ii) Executive's death, Executive will be
entitled to receive accrued and unpaid compensation and benefits through the
date of termination. In addition, Executive's right to purchase Warrant Shares
shall accelerate with respect to twenty-five percent (25%) of the Warrant Shares
unvested on the date of termination, and Company's right to repurchase the
Common Shares issued pursuant to the Purchase Agreement shall lapse with respect
to twenty-five percent (25%) of the Common Shares which are unvested on the date
of termination. Further, Executive's rights (or his estate's rights as the case
may be) to exercise the Warrant with respect to vested Warrant Shares shall
continue for a period of one hundred forty (140) days following the date of the
termination of Executive's employment; provided that vesting of Warrant Shares
shall not continue during such 140-day period. Executive will be entitled to
receive no other compensation or benefits from Company including, without
limitation, the Severance Package described in subsection 7.1(a) above.
7.4 Definitions.
(a) "CAUSE" is defined as: (i) acts or omissions constituting
gross negligence, recklessness or willful misconduct on the part of Executive
with respect to Executive's obligations or otherwise relating to the business of
Company; (ii) Executive's material breach of this Agreement or any other
agreement between Executive and Company; (iii) Executive's conviction or entry
of a plea of nolo contendere for fraud or embezzlement, or any felony or crime
of moral turpitude; or (iv) Executive's willful neglect of duties. In the case
of subparts (i), (ii) and (iv), unless the deficiency cannot reasonably be
cured, no Cause shall exist if Executive cures such deficiency within ten (10)
business days after his receipt of notice from Company. Executive shall have an
opportunity during any such 10-day period to appear before the Board, with his
counsel, and present such evidence as he may deem appropriate. Any final
decision that Cause exists, after notice and opportunity to present as described
above, if applicable, shall be made only by a majority of the Board.
(b) "GOOD REASON" shall be deemed to exist following the
occurrence of any of the following events: (i) a reduction in Executive's title
or position or an assignment to Executive of operational authority or duties
which are materially inconsistent with the usual and customary operational
authority and duties of a person in Executive's position in similarly-situated
companies, (ii) a reduction in Executive's Base Salary or Performance Bonus
target or any failure to pay any compensation or benefits earned by Executive,
provided that Good Reason shall not be deemed for such non-payment unless
Executive provides written notice to Company thereof and following a reasonable
cure period, or (iii) Company's requiring Executive to relocate to any place
outside a fifty (50) mile radius of Company's current headquarters.
8. No Conflict of Interest. During Executive's employment with Company and
during any period Executive is receiving payments from Company pursuant to this
Agreement, Executive must not engage in any work, paid or unpaid, that creates
an actual conflict of interest with Company. Such work shall include, but is not
limited to, directly or indirectly competing with Company in any way, or acting
as an officer, director, employee, consultant, stockholder, volunteer, lender,
or agent of any business enterprise of the same nature as, or which is in direct
competition with, the business in which Company is now engaged or in which
Company becomes engaged during Executive's employment with Company. If the Board
believes such a conflict exists during Executive's employment with Company, the
Board may ask Executive to choose to discontinue the other work or resign
employment with Company. If the Board believes such a conflict exists during any
period in which Executive is receiving payments pursuant to this Agreement, the
Board may ask Executive to choose to discontinue the other work or forfeit the
remaining severance payments. In addition, Executive agrees not to refer any
client or potential client of Company to competitors of Company, without
obtaining Company's prior written consent, during Executive's employment with
Company and during any period in which Executive is receiving payments from
Company pursuant to this Agreement.
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9. Confidentiality and Proprietary Rights. Executive agrees to read, sign
and abide by Company's Employee Innovations and Proprietary Rights Assignment
Agreement, which is provided with this Agreement and incorporated herein by
reference (the "ASSIGNMENT AGREEMENT").
10. Non-Solicitation; Non-Disparagement. Executive understands and agrees
that Company's employees and customers and any information regarding Company
employees and/or customers is confidential and constitutes trade secrets.
Accordingly, Executive agrees that during his employment and for a period of one
(1) year after the termination of his employment, Executive will not, either
directly or indirectly, separately or in association with others: (1) interfere
with, impair, disrupt or damage Company's relationship with any of its customers
or customer prospects by soliciting or encouraging others to solicit any of them
for the purpose of diverting or taking away business from Company; or (2)
interfere with, impair, disrupt or damage Company's business by soliciting,
encouraging or attempting to hire any of Company's employees or causing others
to solicit or encourage any of Company's employees to discontinue their
employment with Company. Executive further agrees that he will not, directly or
indirectly, engage during the one (1) year period after termination of his
employment, in any defamatory, disparaging or critical communication with any
other person or entity concerning the business, operations, services, marketing
strategies, pricing policies, management, business practices, officers,
directors, employees, attorneys, representatives, affiliates, agents affairs
and/or financial condition of Company, its subsidiaries or affiliates. Company
agrees that it will not, directly or indirectly, engage during the one (1) year
period after termination of Executive's employment in any defamatory,
disparaging or critical comments regarding Executive.
11. Injunctive Relief. Executive acknowledges that his breach of the
covenants contained in Sections 8, 9 or 10 would cause irreparable injury to
Company and agrees that in the event of any such breach, Company shall be
entitled to seek temporary, preliminary and permanent injunctive relief without
the necessity of proving actual damages or posting any bond or other security.
12. Agreement to Arbitrate.
12.1 Scope of Arbitration. To the fullest extent permitted by law,
Executive and Company agree to arbitrate any controversy, claim or dispute
between them arising out of or in any way related to this Agreement, the
employment relationship between Company and Executive and any disputes upon
termination of employment, including but not limited to breach of contract,
tort, discrimination, harassment, wrongful termination, demotion, discipline,
failure to accommodate, family and medical leave, compensation or benefits
claims, constitutional claims; and any claims for violation of any local, state
or federal law, statute, regulation or ordinance or common law. For the purpose
of this agreement to arbitrate, references to "Company" include all parent,
subsidiary or related entities and their employees, supervisors, officers,
directors, agents, pension or benefit plans, pension or benefit plan sponsors,
fiduciaries, administrators, affiliates and all successors and assigns of any of
them, and this agreement shall apply to them to the extent Executive's claims
arise out of or relate to their actions on behalf of Company.
12.2 Arbitration Procedure. Either party may exercise the right to
arbitrate by providing the other party with written notice of any and all claims
forming the basis of such right in sufficient detail to inform the other party
of the substance of such claims. In no event shall the request for arbitration
be made after the date when institution of legal or equitable proceedings based
on such claims would be barred by the applicable statute of limitations. The
arbitration will be conducted in San Diego, California by a single neutral
arbitrator and in accordance with the then current rules for resolution of
employment disputes of the American Arbitration Association. The parties are
entitled to representation by an attorney or other representative of their
choosing. The arbitrator shall have the power to enter any award that could be
entered by a judge of the trial court of the State of California, and only such
power,
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and shall follow the law. The parties agree to abide by and perform any award
rendered by the arbitrator. The arbitrator shall issue the award in writing and
therein state the essential findings and conclusions on which the award is
based. Judgment on the award may be entered in any court having jurisdiction
thereof. Company shall bear the costs of the arbitration filing and hearing fees
and the cost of the arbitrator.
13. General Provisions.
13.1 Successors and Assigns. The rights and obligations of Company
under this Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of Company. Except with respect to certain transfers for
estate planning purposes of Executives rights under the Warrant and the Purchase
Agreement, in each case set forth therein, Executive shall not be entitled to
assign any of Executive's rights or obligations under this Agreement.
13.2 Waiver. Either party's failure to enforce any provision of this
Agreement shall not in any way be construed as a waiver of any such provision,
or prevent that party thereafter from enforcing each and every other provision
of this Agreement.
13.3 Attorneys' Fees. Each side will bear its own attorneys' fees in
any dispute unless a statutory section at issue, if any, authorizes the award of
attorneys' fees to the prevailing party.
13.4 Severability. In the event any provision of this Agreement is
found to be unenforceable by an arbitrator or court of competent jurisdiction,
such provision shall be deemed modified to the extent necessary to allow
enforceability of the provision as so limited, it being intended that the
parties shall receive the benefit contemplated herein to the fullest extent
permitted by law. If a deemed modification is not satisfactory in the judgment
of such arbitrator or court, the unenforceable provision shall be deemed
deleted, and the validity and enforceability of the remaining provisions shall
not be affected thereby.
13.5 Interpretation; Construction. The headings set forth in this
Agreement are for convenience only and shall not be used in interpreting this
Agreement. This Agreement has been drafted by legal counsel representing
Company, but Executive has participated in the negotiation of its terms.
Furthermore, Executive acknowledges that he has had an opportunity to review and
revise the Agreement and have it reviewed by legal counsel, if desired, and,
therefore, the normal rule of construction to the effect that any ambiguities
are to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement.
13.6 Governing Law. This Agreement will be governed by and construed
in accordance with the laws of the United States and the State of California.
Each party consents to the jurisdiction and venue of the state or federal courts
in San Diego, California, if applicable, in any action, suit, or proceeding
arising out of or relating to this Agreement.
13.7 No Representations; Independent Counsel. Executive acknowledges
that he is not relying, and has not relied, on any promise, representation or
statement made by or on behalf of Company or any agent thereof which is not set
forth in this Agreement. Each of the parties acknowledges and agrees that Xxxxxx
& Xxxxxxx LLP is counsel to Company and not to Executive and that Executive has
had reasonable opportunity to consult with separate counsel with respect to the
matters contained herein.
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13.8 Counterparts. This Agreement may be executed in any number of
counterparts, provided, however, that each of such counterparts when taken
together shall constitute one and the same agreement.
13.9 Notices. Any notice required or permitted by this Agreement
shall be in writing and shall be delivered as follows with notice deemed given
as indicated: (a) by personal delivery when delivered personally; (b) by
overnight courier upon written verification of receipt; (c ) by telecopy or
facsimile transmission upon acknowledgment of receipt of electronic
transmission; or (d) by certified or registered mail, return receipt requested,
upon verification of receipt. Notice shall be sent to the addresses set forth
below, or such other address as either party may specify in writing.
13.10 Survival. Sections 8 ("No Conflict of Interest"), 9
("Confidentiality and Proprietary Rights"), 10 ("Non-Solicitation;
Non-Disparagement"), 11 ("Injunctive Relief"), 12 ("Agreement to Arbitrate"), 13
("General Provisions") and 14 ("Entire Agreement") of this Agreement shall
survive any termination of this Agreement and Executive's employment with
Company.
14. Entire Agreement. This Agreement, the Assignment Agreement, the
Warrant and the Purchase Agreement constitutes the entire agreement between the
parties relating to this subject matter and supersedes all prior or simultaneous
representations, discussions, negotiations, and agreements, whether written or
oral, including, without limitation, the Original Agreement. This Agreement may
be amended, modified or waived only in a writing signed by Executive and the
Board. No oral waiver, amendment or modification will be effective under any
circumstances whatsoever. Any amendment, waiver or modification not effected in
accordance with the Section 14 shall be null and void. In the event of a
conflict between the terms of the Warrant or the Purchase Agreement and this
Agreement, the terms of this Agreement shall control.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
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THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY
UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES
HAVE EXECUTED THIS AGREEMENT ON THE DATES SHOWN BELOW.
XXXX XXXXXXXX
Dated: July 21, 2004 /s/ Xxxx Xxxxxxxx
______________________ ________________________________
Xxxx Xxxxxxxx
ADDRESS: c/o 00000 Xxxxxxx Xxxxx, 0xx
Xxxxx
_______________________
Xxx Xxxxx XX 00000
_______________________
WEBSIDESTORY, INC.
Dated: July 21, 2004 By: /s/ Xxx Xxxxxxxxxx
______________________ ____________________________
Name: Xxx Xxxxxxxxxx
__________________________
Title: CFO
_________________________
ADDRESS: 00000 Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxxx, XX 00000
SIGNATURE PAGE TO AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
EXHIBIT A
FORM OF GENERAL RELEASE OF CLAIMS
GENERAL RELEASE. Executive unconditionally, irrevocably and absolutely releases
and discharges Company, and any parent and subsidiary corporations, divisions
and affiliated corporations, partnerships or other affiliated entities of
Company, past and present, as well as Company's employees, officers, directors,
shareholders, agents, successors and assigns (collectively, "RELEASED PARTIES"),
and Company unconditionally, irrevocably and absolutely releases and discharges
Executive, from all claims related in any way to Executive's employment with
Company, or termination there from, to the fullest extent permitted by law, and
all other losses, liabilities, claims, charges, demands and causes of action,
known or unknown, suspected or unsuspected, arising directly or indirectly out
of or in any way connected with Executive's relationship with Company, whether
as an employee, officer, director or shareholder. Notwithstanding the foregoing,
nothing in this release shall in any way constitute a release or waiver to
Executive's rights to any payments due to him under the Amended and Restated
Executive Employment Agreement entered into effective as of July 21, 2004 by and
between Company and Executive, and Executive's rights to purchase securities
under the Common Stock Purchase Agreement and the Warrant to Purchase Series D
Preferred Stock, each between Executive and Company and dated as of April 1,
2003. This release is intended to have the broadest possible application to
claims in respect of Company and Executive, and includes, but is not limited to,
any tort, contract, common law, constitutional or other statutory claims,
including, but not limited to alleged violations of the California Labor Code or
the federal Fair Labor Standards Act, Title VII of the Civil Rights Act of 1964
and the California Fair Employment and Housing Act, the Americans with
Disabilities Act, the Age Discrimination in Employment Act of 1967, as amended
(the "ADEA"), and all claims for attorneys' fees, costs and expenses. Each of
Company and Executive expressly waive its or his right to recovery of any type,
including damages or reinstatement, in any administrative or court action,
whether state or federal, and whether brought by Company or Executive, or on
Company's or Executive's behalf, related in any way to the matters released
herein.
CALIFORNIA CIVIL CODE SECTION 1542 MUTUAL WAIVER. Executive and Company
expressly acknowledge and agree that all rights under Section 1542 of the
California Civil Code are expressly waived. That section provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
If Executive is 40 years of age or older, Executive acknowledges that he
is waiving and releasing any rights he may have under the ADEA and that the
waiver and release is knowing and voluntary. Company and Executive agree that
the waiver and release does not apply to any rights or claims that may arise
under the ADEA after the date of termination of Executive's employment with
Company. Executive acknowledges that the consideration given for this waiver and
release is in addition to anything of value to which you were already entitled.
Executive further acknowledges that he has been advised by Company in writing
that (a) he should consult with an attorney prior to executing this release; (b)
he has twenty-one (21) days within which to consider this release; (c) he has
seven (7) days following the execution of this release by the parties to revoke
this release (the "REVOCATION PERIOD"); and (d) this release shall not be
effective until the Revocation Period has expired without Executive revoking or
purporting to revoke this release or any other provision of this release.
Executive hereby agrees to waive
EXHIBIT TO AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
the additional twenty-one (21) day period to review and consider this release,
to which Executive would otherwise be entitled.
REPRESENTATION CONCERNING FILING OF LEGAL ACTIONS. The parties represent that,
as of the date of this Agreement, they have not filed any lawsuits, charges,
complaints, petitions, claims or other accusatory pleadings against each other
or any of the other Released Parties in any court or with any governmental
agency. The parties further agree that, to the fullest extent permitted by law,
they will not prosecute, nor allow to be prosecuted on their behalf, in any
administrative agency, whether state or federal, or in any court, whether state
or federal, any claim or demand of any type related to the matters released
above, it being the intention of the parties that with the execution of this
release, the parties will be absolutely, unconditionally and forever discharged
of and from all obligations to or on behalf of each other related in any way to
the matters discharged herein.
EXHIBIT TO AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
