Transition Agreement - WebSideStory Inc. and John J. Hentrich
TRANSITION AGREEMENT
This Transition Agreement ("Agreement") is entered into as of March 31,
2003 by and between WebSideStory, Inc. ("WebSideStory" and the "Company") and
John J. Hentrich ("Employee").
RECITALS
A. Employee is currently employed by Company as Chief Executive Officer
and President pursuant to an Amended Employment Agreement dated May 14, 2002
(the "Employment Agreement"). Employee also serves as Chairman of Company's
Board of Directors ("Board of Directors").
B. Employee has been granted stock options to purchase shares of
Company's common stock pursuant to Company's stock option plans and stock option
agreements.
C. The parties desire to settle all claims and issues that have, or
could have been, raised including, without limitation, those in relation to
Employee's employment with Company and arising out of or in any way related to
the acts, transactions or occurrences between Employee and Company to date,
including, but not limited to, Employee's employment with Company or the
termination of that employment, on the terms set forth below
AGREEMENT
NOW THEREFORE, in consideration of the representations, warranties,
agreements, covenants and other promises herein, the mutual benefits to be
gained by the performance thereof, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged and
accepted, the parties hereby agree as follows:
1. RESIGNATION OF OFFICE. Employee agrees to resign from his positions
as the Company's Chief Executive Officer and President, such resignations to be
effective as of March 31, 2003 ("CEO Termination Date"). Further, the Executive
agrees to resign his directorship and as Chairman of the Board of Directors as
of the CEO Termination Date.
2. ACCRUED COMPENSATION. Employee shall be paid on March 31, 2003: (1)
all vacation pay accrued but unused as of March 31, 2003 and (2) any portion of
Employee's current base salary which is due and owing to him through such date,
in each case less all applicable withholdings and deductions required by law.
Employee shall also be reimbursed for all reasonable expenses incurred in
Employee's performance of his duties prior to or on March 31, 2003, whether
submitted or in the process of being submitted, in accordance with Company
practice.
3. TRANSITIONAL SERVICES. For the period beginning on April 1, 2003 and
ending on April 30, 2003 ("Transition Period"), Employee agrees to remain
employed with the Company and provide transition and other services reasonably
requested by the new Chief Executive Officer or the Board of Directors
("Transitional Services"). The Company agrees to pay Employee an aggregate of
$31,250.00 (Thirty-One Thousand Two Hundred Fifty Dollars), in two bi-weekly
payments of $15,625.00 (Fifteen Thousand Six Hundred Twenty Five Dollars) less
all applicable withholdings and deductions required by law ("Transition
Salary"). This Transition Salary, together
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with those amounts to be paid to Employee pursuant to paragraph 2 above, shall
be in addition to the Severance Package described below. During the Transition
Period, Employee will not be eligible for bonus or vacation accrual, but shall
be eligible for and receive all other fringe benefits available to employees
generally. The Company may terminate Employee's employment during the Transition
Period at any time, with or without notice or reason; provided that, subject to
paragraph 13 below, no such termination shall terminate the Company's obligation
to pay to Employee the Transition Salary. The Employee may take a reasonable
amount of time during the Transition Period to seek other employment. In the
event that Employee voluntarily decides to discontinue employment during the
Transition Period, the Employee will only be entitled to receive pursuant to
this paragraph 3 that portion of the Transition Salary prorated through the date
of termination. The remaining obligations of the parties under this Agreement
shall be unaffected.
4. SEVERANCE PACKAGE. Company agrees to provide Employee with the
following payments and benefits ("Severance Package") to which he is not
otherwise fully entitled. Employee acknowledges and agrees that this Severance
Package constitutes adequate legal consideration for the promises and
representations made by him in this Agreement.
a. BONUS. On March 31, 2003, WebSideStory shall pay Employee a
bonus ("Bonus") in the amount of $125,000.00 (One Hundred Twenty-Five Thousand
Dollars), less all applicable withholdings and deductions required by law.
b. ADDITIONAL SEVERANCE PAYMENTS. Company shall pay Employee
additional severance payments, in the manner specified below, totaling an
aggregate of $375,000.00 (Three Hundred Seventy-Five Thousand Dollars), less all
applicable withholdings and deductions required by law ("Severance Payments").
The first Severance Payment shall be $125,000.00 (One Hundred Twenty-Five
Thousand Dollars), less all applicable withholdings and deductions required by
law, and shall be paid to Employee in a lump sum on March 31, 2003. The
remaining Severance Payments totaling $250,000.00 (Two Hundred Fifty Thousand
Dollars) shall be paid in bi-weekly installments of $9,615.38 (Nine Thousand Six
Hundred Fifteen Dollars and 38/100), less all applicable withholdings and
deductions required by law, on normal Company paydays for the 26 pay periods
commencing on the next Company payday following the CEO Termination Date. The
Severance Payments are in addition to the Transition Salary, the Bonus and any
other amounts payable to Employee pursuant to paragraph 2 above.
c. CHANGE OF CONTROL. In the event of a Change of Control (as
defined below), any unpaid portion of the Severance Payments shall automatically
accelerate and be payable in full upon the closing of such Change of Control.
"Change of Control" is defined as (A) a merger or consolidation of the 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 the Company; (C) any purchase
by any party (or group of affiliated parties) of shares of capital stock of the
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 the 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 the
Company; or (E) of any other change of control of fifty percent (50%)
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or more of the outstanding voting power of the Company in a single transaction
or series of related transactions, but for purposes of this subsection (E)
excluding an underwritten public offering by the Company of shares of Common
Stock or other securities.
d. OFFSETS/DEDUCTIONS. Subject to paragraph 13 below, there will
be no offsets or deductions of any kind with respect to the Severance Package
except for all applicable withholdings and deductions required by law. Without
limitation thereof, Employee is free to commence other employment at any time,
and the Severance Package will not be reduced or offset by any compensation of
Employee from such employment except with respect to continuation of benefits as
set forth in paragraph g below. Subject to paragraph 13 below, the Company's
obligation to pay Employee the Severance Package is not conditioned on the
occurrence or non-occurrence of any event including, without limitation,
Employee's death or disability after the CEO Termination Date.
e. OUTPLACEMENT SERVICES. Company shall reimburse Employee for
fees paid by Employee for outplacement or career counseling services up to a
total of $7,500.00 upon the submission of appropriate supporting documentation.
f. DISPOSITION OF CERTAIN PROPERTY. Employee may keep at no
charge to Employee, his work laptop computer (IBM), PDA, cell phone and home
computer systems provided that, as a condition thereto, Employee must return to
the Company all confidential and proprietary information of the Company
contained in the property, on any computer disks, or otherwise within Employee's
possession, custody or control. To accomplish the return of all confidential and
proprietary information stored in the property, Employee agrees to deliver the
property to a reasonably designated Company representative at such time as is
designated by Company, who will endeavor to ensure that all confidential
proprietary information is retrieved. Employee will be permitted to retain
copies of agreements between himself and the Company and other materials
uniquely personal to Employee's employment with the Company.
g. HEALTH AND OTHER EMPLOYEE BENEFITS. Commencing with the CEO
Termination Date and for a period of eighteen (18) months thereafter, the
Company will pay the full cost of group health and dental insurance benefit
premiums to provide coverage for Employee under the Company's plans provided the
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 full premiums required to continue Employee's group
health care coverage for the 18-month period under the applicable provisions of
the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), provided
that Employee elects to continue and remains eligible for these benefits under
COBRA. Except as provided below, if Employee's COBRA benefits terminate prior to
the end of the 18-month period because Employee obtains other employment, the
Company shall continue to reimburse Employee for the full premiums for any
comparable substitute health and dental insurance obtained by Employee through
the period ending twelve (12) months following the CEO Termination Date, at
which time the Company's obligations to continue to pay benefit premiums for
Employee shall terminate.
h. STOCK OPTIONS. The Company acknowledges that the Employee has
previously exercised in full options to acquire 1,390,887 shares of Common Stock
of the Company which were granted to the Employee in 1999 and that no repurchase
rights exist with respect to the Common Stock so purchased. The Company and
Employee are also party to (i) that certain Stock
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Option Agreement, dated January 18, 2001 (the "2001 Agreement"), pursuant to
which Employee purchased, subject to a repurchase right in favor of the Company,
an aggregate of 884,325 shares of Common Stock of the Company (the "2001
Shares") and (ii) that certain Stock Option Agreement, dated January 23, 2002
(together with the 2001 Agreement, the "2002 Agreement"), pursuant to which the
Employee is entitled, subject to certain vesting provisions, to purchase up to
an aggregate of 1,000,000 shares of Common Stock of the Company (the "2002
Shares"). The Employee represents and warrants that Employee has no other rights
to purchase or acquire any securities of the Company (other than the 2002
Shares) or any interest therein. The Company and the Employee hereby agree that,
effective March 31, 2003, any unvested rights of Employee under the 2002
Agreement to exercise and purchase the 2002 Shares shall vest in full and that
any rights of the Company to repurchase any 2001 Shares under the 2001 Agreement
shall lapse in full. In addition, Employee may exercise his rights under the
2002 Agreement to purchase any or all of the 2002 Shares at any time on or
before April 30, 2005, following which Employee's right to purchase the 2002
Shares shall terminate. Except as set forth in this paragraph 4h, the rights and
obligations of the parties as set forth in the 2001 Agreement and 2002 Agreement
remain in full force and effect. Employee confirms that he has been advised to
consult an independent tax advisor to understand the tax consequences of his
options (including the consequences of any delay in exercise or extension of
exercise period) prior to signing this Agreement.
5. DIRECTORS AND OFFICERS INSURANCE; DIRECTORS AND OFFICERS
INDEMNIFICATION AGREEMENT. Employee's rights under any existing insurance
policies of the Company (including the Company's Directors and Officers
insurance policies) and that certain Indemnity Agreement, dated December 4,
2000, between the Company and Employee ("Indemnity Agreement") shall be
unaffected by this Agreement or the Mutual General Release below.
6. MUTUAL GENERAL RELEASE, Employee 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 Employee, from all claims related in any way
to the transactions or occurrences between them to date, to the fullest extent
permitted by law, including, but not limited to, Employee's employment with
Company, the termination of Employee's employment, 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 Employee's employment with Company. This release is intended to
have the broadest possible application 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, and all
claims for attorneys' fees, costs and expenses. Employee and the Released
Parties expressly waive their respective rights to recovery of any type,
including damages or reinstatement, in any administrative or court action,
whether state or federal, and whether brought by Employee, the Released Parties,
or on any of their behalf, related in any way to the matters released herein.
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7. CALIFORNIA CIVIL CODE SECTION 1542 MUTUAL WAIVER. Employee 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.
8. 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.
9. CONFIDENTIAL SEPARATION INFORMATION. The parties agree that the
terms and conditions of this Agreement, as well as the discussions that led to
the terms and conditions of this Agreement (collectively referred to as the
"Confidential Separation Information") are intended to remain confidential
between Employee and Company. The parties further agree that they will not
disclose the Confidential Separation Information to any other persons, except
that they may disclose such information (i) to immediate family members and to
attorney(s), financial advisors and accountant(s), if any, to the extent needed
for legal, financial or accounting advice or income tax reporting purposes and
(ii) to third parties in connection with due diligence or other investigations
of the Company provided such third parties are obligated to keep such
information confidential. When releasing this information to any such person,
such releasing party shall advise the person receiving the information of its
confidential nature. No party, nor anyone to whom the Confidential Separation
Information has been disclosed, will respond to, or in any way participate in or
contribute to, any public discussion, notice or other publicity concerning the
Confidential Separation Information. Without limiting the generality of the
foregoing, Employee specifically agrees that neither he, his immediate family,
his attorney nor his accountant, if any, shall disclose the Confidential
Separation Information to any current, former or prospective employee of
Company. Nothing in this section will preclude either party from disclosing
information as required by law or in response to a subpoena or notice of
deposition duly issued by a court of law or a government agency having
jurisdiction or power to compel such disclosure, or from giving full, truthful
and cooperative answers in response to a duly issued subpoena or notice of
deposition.
10. CONTINUING OBLIGATIONS. Employee hereby reaffirms and agrees to
abide by all the surviving provisions of that certain Employee Confidentiality
and Inventions Agreement between Employee and Company (which is incorporated
herein by reference), including, but not limited to, promises to protect all
confidential and proprietary information of Company and promises
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not to solicit any of Company's employees or consultants for a period of one (1)
year from the date of his termination from Company.
11. NON-SOLICITATION. Employee understands and agrees that any
information regarding Company's customers (including the identity thereof but
excluding any information that has been publicly disclosed by the Company
through no fault of the Employee or is otherwise in the public domain) is
confidential and constitutes trade secrets. As such, for a period of one (1)
year following the date of his termination from Company, Employee agrees not to
use this information, directly or indirectly, separately or in association with
others interfere with, impair, disrupt or damage Company's relationship with any
of its customers or prospective customers by soliciting, or encouraging or
causing others to solicit or encourage, any of them for the purpose of diverting
or taking away the business such customers have with Company. The Company
acknowledges that this paragraph shall not restrict Employee from accepting
employment with a competitor of the Company; provided that the Employee does not
violate any of the terms of this Agreement including those set forth above.
12. NON-DISPARAGEMENT AND REFERENCES. Employee agrees that he shall not
disparage or otherwise issue or make adverse or negative remarks about any
Released Party that criticize the personal and/or business reputations,
practices or conduct of such Released Party. Likewise, WebSideStory agrees that
its officers and directors shall not disparage or otherwise issue or make
adverse or negative remarks about Employee that criticize the personal and/or
business reputations, practices or conduct of Employee, Employee's employment
performance or Employee's separation from WebSideStory. WebSideStory agrees that
its directors and officers will a provide a positive reference to prospective
employers regarding Employee's employment at WebSideStory, including a written
reference in the form attached hereto as Attachment A. Employee agrees that a
verbal reference consistent with the general tone and substance of Attachment A
(without a requirement for the full detail contained therein) will be considered
positive. Employee shall also review and approve in advance the wording of any
press releases, public announcements or internal Company announcements
concerning Employee's departure as CEO that is inconsistent with the written
reference set forth above; Employee shall exercise this approval in a reasonable
manner. Nothing in this paragraph, however, shall prevent either party from
making any necessary disclosures regarding Employee's termination from
employment as required by law.
13. MATERIAL BREACH. In the event of a material breach by the Company of
its obligations under this Agreement, the Option Agreements, the Indemnity
Agreement or the Inventions Agreement, the Company agrees to immediately pay in
full, upon demand of Employee, all remaining and unpaid Severance Payments and
other unpaid payments and benefits owing to Employee under this Agreement. In
the event of a material breach by Employee of his obligations under this
Agreement, the Option Agreements, the Indemnity Agreement or the Inventions
Agreement, the Employee agrees (i) that the Company may immediately cease making
the Severance Payments and providing to Employee any other payments and benefits
described in this Agreement and (ii) upon demand of the Company, to immediately
repay and return to Company all Bonus, Severance Payments and other payments and
benefits previously provided to Employee under this Agreement. A material breach
by Company shall include, but is not limited to, the failure to timely make any
payments owed to Employee following notice thereof by Employee and a reasonable
cure period of not less than ten (10) days. Nothing in this paragraph 13 shall
in any way limit or reduce either party's right to pursue all other legal and
equitable remedies available as a result of a breach of this Agreement.
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14. OLDER WORKERS' BENEFIT PROTECTION ACT. This Agreement is intended to
satisfy the requirements of the Older Workers' Benefit Protection Act, 29 U.S.C.
sec. 626(f). The following general provisions, along with the other provisions
of this Agreement, are agreed to for this purpose:
a. Employee acknowledges and agrees that he has read and
understands the terms of this Agreement.
b. Employee acknowledges that this Agreement advises him in
writing that he may consult with an attorney before executing this Agreement,
and that he has obtained and considered such legal counsel as he deems
necessary, such that he is entering into this Agreement freely, knowingly, and
voluntarily.
c. Employee acknowledges that he has been given at least
twenty-one (21) days in which to consider whether or not to enter into this
Agreement. Employee understands that, at his option, Employee may elect not to
use the full 21-day period.
d. This Agreement shall not become effective or enforceable until
the eighth day after Employee signs this Agreement. In other words, Employee may
revoke his acceptance of this Agreement within seven (7) days after the date he
signs it. Employee's revocation must be in writing and received by Company's
April 7, 2003 by 5:00 p.m. P.S.T. on the seventh day in order to be effective.
If Employee does not revoke acceptance within the 7-day period, Employee's
acceptance of this Agreement shall become binding and enforceable on the eighth
day after he signs this Agreement ("Effective Date").
e. This Agreement does not waive or release any rights or claims
that Employee may have under the Age Discrimination in Employment Act that arise
after the execution of this Agreement.
15. LEGAL FEES. In the event of a legal dispute regarding enforcement of
this agreement, each party will bear its own costs, fees and expenses, unless a
party prevails in substantial part, in which event the prevailing party shall be
entitled to an award of costs, fees and expenses.
16. NO ADMISSIONS. By entering into this Agreement, the Released Parties
make no admission that they have engaged, or are now engaging, in any unlawful
conduct. The parties understand and acknowledge that this Agreement is not an
admission of liability (including, without limitation, that the payment to
Employee of the Bonus constitutes an admission that the Bonus was earned by
Employee as compensation or otherwise during Employee's employment with the
Company) and shall not be used or construed as such in any legal or
administrative proceeding.
17. GENERAL TERMS.
a. GOVERNING LAW/JURISDICTION. This agreement shall be governed
by and construed according to California law, without regard to principles of
conflict of laws. Each party consents to exclusive jurisdiction and venue in San
Diego, California.
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b. ARBITRATION. The parties agree that any and all disputes
arising out of, or relating to, the terms of this Agreement, their
interpretation, and any of the matters herein released, shall be subject to
binding arbitration in San Diego, California before the American Arbitration
Association. The Parties agree that the prevailing party in any arbitration
shall be entitled to injunctive relief in any court of competent jurisdiction to
enforce the arbitration award. THE PARTIES HEREBY AGREE TO WAIVE THEIR RIGHT TO
HAVE ANY DISPUTE BETWEEN THEM RESOLVED IN A COURT OF LAW BY A JUDGE OR JURY.
This section will not prevent either party from seeking injunctive relief (or
any other provisional remedy) from any court having jurisdiction over the
parties and the subject matter of their dispute relating to Employee's
obligations under this Agreement and any agreements incorporated herein by
reference.
c. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof, this being in addition to
any other remedy to which they are entitled at law or in equity.
d. ASSIGNMENT. Neither party may assign (whether by operation of
law or otherwise) its rights or obligations under this Agreement; provided that
the Company may assign (whether by operation of law or otherwise) this Agreement
and its rights and obligations hereunder in connection with any merger or
consolidation of the Company with or into another corporation or other entity or
the sale or transfer of all or substantially all of the properties and assets of
the Company.
e. AUTHORITY. Each party represents and warrants that (i) such
party has all requisite power and authority to enter into and perform such
party's obligations under this Agreement and to consummate the transactions
contemplated hereby and (ii) this Agreement has been duly executed and delivered
by such party and constitutes the legal, valid and binding obligations of such
party, enforceable in accordance with its terms, except as such enforceability
may be subject to the laws of general application relating to bankruptcy,
insolvency and the relief of debtors and rules of law governing specific
performance, injunctive relief or other equitable remedies. Employee represents
and warrants that he has the capacity to act on his own behalf and on behalf of
all who might claim through him to bind them to the terms and conditions of this
Agreement.
f. WAIVER. The failure to enforce any provision of this Agreement
shall not be construed as a waiver of any such provision, nor prevent a party
thereafter from enforcing the provision or any other provision of this
Agreement. The rights granted the parties are cumulative, and the election of
one will not constitute a waiver of such party's right to assert all other legal
and equitable remedies available under the circumstances.
g. SEVERABILITY. The provisions of this Agreement are severable,
and if any provision will be held to be invalid or otherwise unenforceable, in
whole or in part, the remainder of the provisions, or enforceable parts of this
Agreement, will not be affected.
h. ENTIRE AGREEMENT. This Agreement, including the attachment
hereto, the surviving provisions of the Employee Confidentiality and Inventions
Agreement and Company's
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2000 Equity Incentive Plan and related stock option documents, constitutes the
entire agreement of the parties with respect to the subject matter of this
Agreement and supersedes all prior or simultaneous representations, discussions,
negotiations, and agreements, whether written or oral, including but not limited
to any agreements in respect of the payment of severance or other
post-termination benefits in that certain Amended Employment Agreement, dated as
of May 14, 2002, between Employee and the Company, as amended to date, or
otherwise.
i. MODIFICATION, No modification, amendment, termination or
attempted waiver of this Agreement will be valid unless in writing, signed by
the party against whom such modification, amendment, termination or waiver is
sought to be enforced.
j. COUNTERPARTS. This Agreement and the attachments hereto may be
executed in counterparts, each of which shall be deemed an original. Such
counterparts together constitute one instrument.
k. HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
l. INTERPRETATION. Each party to this Agreement and his or its
counsel have reviewed and revised this Agreement. The rule of construction that
any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement or any attachments or
amendments to this Agreement. Employee acknowledges that he is not relying, and
has not relied, on any promise, representation or statement made by or on behalf
of the Company or any agent thereof which is not set forth in this Agreement.
Each of the parties acknowledges and agrees that Gray Cary Ware & Freidenrich
LLP is counsel to the Company and not to the Employee and that Employee has had
reasonable opportunity to consult with separate counsel with respect to the
matters contained herein.
18. REAFFIRMATION. Employee agrees to execute the attached Amendment to
this Agreement on or about the date of his termination from employment with
Company in order to extend and reaffirm the promises and covenants made by
Employee in this Agreement, including, but not limited to, the general release
of all claims, through such date of termination. Employee agrees that his
failure to execute the Amendment to this Agreement shall constitute a material
breach of his obligations under this Agreement.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
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IN WITNESS WHEREOF, the parties to this Agreement have executed this
Transition Agreement in San Diego. California on the date first above written.
JOHN J. HENTRICH
3/31/03 /s/ John J. Hentrich
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Dated John J. Hentrich
WEBSIDESTORY, INC.
3-31-03 By: /s/ Kurt R. Jaggers
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Dated Name: Kurt R. Jaggers
Title: Director
SIGNATURE PAGE TO TRANSITION AGREEMENT