Table of Contents

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 10-Q

 

 

(Mark One)

x Q UARTERLY REPORT PURSUANT TO S ECTION  13 OR 15( D ) OF THE S ECURITIES E XCHANGE A CT OF 1934

For the quarterly period ended March 31, 2016

OR

 

¨ T RANSITION REPORT PURSUANT TO S ECTION  13 OR 15( D ) OF THE S ECURITIES E XCHANGE A CT OF 1934

For the transition period from                      to                     

Commission File Number: 001-36131

 

 

Endurance International Group Holdings, Inc.

(Exact Name of Registrant as Specified in Its Charter)

 

 

 

Delaware   46-3044956

(State or Other Jurisdiction of

Incorporation or Organization)

 

(I.R.S. Employer

Identification No.)

 

10 Corporate Drive, Suite 300

Burlington, Massachusetts

  01803
(Address of Principal Executive Offices)   (Zip Code)

(781) 852-3200

(Registrant’s Telephone Number, Including Area Code)

 

 

Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes   x     No   ¨

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    Yes   x     No   ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer   x    Accelerated filer   ¨
Non-accelerated filer   ¨   (Do not check if a smaller reporting company)    Smaller reporting company   ¨

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).    Yes   ¨     No   x

As of April 29, 2016, there were 140,442,439 shares of the issuer’s common stock, $0.0001 par value per share, outstanding.

 

 

 


Table of Contents

TABLE OF CONTENTS

 

     Page  

PART I. FINANCIAL INFORMATION

  

Item 1. Financial Statements (unaudited)

  

Consolidated Balance Sheets as of December 31, 2015 and March  31, 2016

     3   

Consolidated Statements of Operations and Comprehensive Income for the three months ended March 31, 2015 and 2016

     4   

Consolidated Statements of Cash Flows for the three months ended March  31, 2015 and 2016

     5   

Notes to Consolidated Financial Statements

     6   

Item  2. Management’s Discussion and Analysis of Financial Condition and Results of Operations

     34   

Item 3. Quantitative and Qualitative Disclosures About Market Risk

     49   

Item 4. Controls and Procedures

     50   

PART II. OTHER INFORMATION

  

Item 1. Legal Proceedings

     51   

Item 1A. Risk Factors

     52   

Item 5. Other Information

     80   

Item 6. Exhibits

     81   

Signatures

     82   

 

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Endurance International Group Holdings, Inc.

Consolidated Balance Sheets

(unaudited)

(in thousands, except share and per share amounts)

 

     December 31,
2015
    March 31,
2016
 

Assets

    

Current assets:

    

Cash and cash equivalents

   $ 33,030      $ 79,277   

Restricted cash

     1,048        3,481   

Accounts receivable

     12,040        10,929   

Prepaid domain name registry fees

     55,793        59,021   

Prepaid expenses and other current assets

     15,675        40,003   
  

 

 

   

 

 

 

Total current assets

     117,586        192,711   

Property and equipment—net

     75,762        113,707   

Goodwill

     1,207,255        1,830,244   

Other intangible assets—net

     359,786        731,941   

Deferred financing costs

     —         6,137   

Investments

     27,905        29,903   

Prepaid domain name registry fees, net of current portion

     9,884        10,166   

Other assets

     4,322        5,767   
  

 

 

   

 

 

 

Total assets

   $ 1,802,500      $ 2,920,576   
  

 

 

   

 

 

 

Liabilities, redeemable non-controlling interest and stockholders’ equity

    

Current liabilities:

    

Accounts payable

   $ 12,280      $ 19,989   

Accrued expenses

     50,869        83,099   

Deferred revenue

     285,945        349,951   

Current portion of notes payable

     77,500        35,700   

Current portion of capital lease obligations

     5,866        6,464   

Deferred consideration—short term

     51,488        52,436   

Other current liabilities

     3,973        3,881   
  

 

 

   

 

 

 

Total current liabilities

     487,921        551,520   

Long-term deferred revenue

     79,682        87,464   

Notes payable—long term, net of original issue discounts of $0 and $28,374, and deferred financing costs of $990 and $45,669, respectively

     1,014,885        1,992,707   

Capital lease obligations—long term

     7,215        5,191   

Deferred tax liability—long term

     28,786        47,853   

Deferred consideration—long term

     813        —    

Other liabilities

     3,524        6,105   
  

 

 

   

 

 

 

Total liabilities

   $ 1,622,826      $ 2,690,840   
  

 

 

   

 

 

 

Redeemable non-controlling interest

     —         16,262   

Commitments and contingencies

    

Stockholders’ equity:

    

Preferred Stock—par value $0.0001; 5,000,000 shares authorized; no shares issued or outstanding

     —         —    

Common Stock—par value $0.0001; 500,000,000 shares authorized; 132,024,558 and 132,579,860 shares issued at December 31, 2015 and March 31, 2016, respectively; 131,938,485 and 132,493,787 outstanding at December 31, 2015 and March 31, 2016, respectively

     14        14   

Additional paid-in capital

     848,740        861,898   

Accumulated other comprehensive loss

     (1,718     (2,887

Accumulated deficit

     (667,362     (645,551
  

 

 

   

 

 

 

Total stockholders’ equity

     179,674        213,474   
  

 

 

   

 

 

 

Total liabilities, redeemable non-controlling interest and stockholders’ equity

   $ 1,802,500      $ 2,920,576   
  

 

 

   

 

 

 

See accompanying notes to consolidated financial statements.

 

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Endurance International Group Holdings, Inc.

Consolidated Statements of Operations and Comprehensive Income

(unaudited)

(in thousands, except share and per share amounts)

 

     Three Months ended
March 31,
 
     2015     2016  

Revenue

   $ 177,318      $ 237,113   

Cost of revenue

     100,974        136,476   
  

 

 

   

 

 

 

Gross profit

     76,344        100,637   
  

 

 

   

 

 

 

Operating expense:

    

Sales and marketing

     35,044        79,294   

Engineering and development

     5,371        16,255   

General and administrative

     17,207        40,279   

Transaction expenses

     1,523        31,120   
  

 

 

   

 

 

 

Total operating expense

     59,145        166,948   
  

 

 

   

 

 

 

Income (loss) from operations

     17,199        (66,311
  

 

 

   

 

 

 

Other income (expense):

    

Other income

     —         11,410   

Interest income

     92        134   

Interest expense

     (14,321     (30,371
  

 

 

   

 

 

 

Total other expense—net

     (14,229     (18,827
  

 

 

   

 

 

 

Income (loss) before income taxes and equity earnings of unconsolidated entities

     2,970        (85,138

Income tax expense (benefit)

     978        (99,902
  

 

 

   

 

 

 

Income before equity earnings of unconsolidated entities

     1,992        14,764   
  

 

 

   

 

 

 

Equity loss of unconsolidated entities, net of tax

     1,108        683   
  

 

 

   

 

 

 

Net income

   $ 884      $ 14,081   
  

 

 

   

 

 

 

Net loss attributable to non-controlling interest

     —         (7,730
  

 

 

   

 

 

 

Net income attributable to Endurance International Group Holdings, Inc.

   $ 884      $ 21,811   
  

 

 

   

 

 

 

Comprehensive income (loss):

    

Foreign currency translation adjustments

     (616     342   

Unrealized loss on cash flow hedge, net of taxes of $0 and $606 for the three months ended March 31, 2015 and 2016

     —         (1,511
  

 

 

   

 

 

 

Total comprehensive income

   $ 268      $ 20,642   
  

 

 

   

 

 

 

Basic net income per share

   $ 0.01      $ 0.17   
  

 

 

   

 

 

 

Diluted net income per share

   $ 0.01      $ 0.16   
  

 

 

   

 

 

 

Weighted-average common shares used in computing net income per share:

    

Basic

     130,996,079        132,178,693   
  

 

 

   

 

 

 

Diluted

     132,675,938        133,563,884   
  

 

 

   

 

 

 

See accompanying notes to consolidated financial statements.

 

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Endurance International Group Holdings, Inc.

Consolidated Statements of Cash Flows

(unaudited)

(in thousands)

 

     Three Months Ended
March 31,
 
     2015     2016  

Cash flows from operating activities:

    

Net income

   $ 884      $ 14,081   

Adjustments to reconcile net income to net cash provided by operating activities:

    

Depreciation of property and equipment

     7,866        13,172   

Amortization of other intangible assets from acquisitions

     21,298        29,874   

Impairment of other intangible assets

     —         1,437   

Amortization of deferred financing costs

     20        911   

Amortization of net present value of deferred consideration

     138        783   

Amortization of original issue discounts

     —         449   

Stock-based compensation

     3,971        18,388   

Deferred tax expense (benefit)

     381        (103,203

(Gain) loss on sale of assets

     40        (1

Gain from unconsolidated entities

     —         (11,410

Loss of unconsolidated entities

     1,108        683   

Loss from change in deferred consideration

     196        21   

Changes in operating assets and liabilities, net of acquisitions:

    

Accounts receivable

     1,785        2,144   

Prepaid expenses and other current assets

     (4,741     (15,673

Accounts payable and accrued expenses

     2,344        16,973   

Deferred revenue

     14,933        43,143   
  

 

 

   

 

 

 

Net cash provided by operating activities

     50,223        11,772   
  

 

 

   

 

 

 

Cash flows from investing activities:

    

Businesses acquired in purchase transactions, net of cash acquired

     —         (881,709

Cash paid for minority investment

     —         (600

Purchases of property and equipment

     (7,249     (10,140

Proceeds from sale of assets

     26        —    

Deposits of principal balances in restricted cash accounts

     (338     (737
  

 

 

   

 

 

 

Net cash used in investing activities

     (7,561     (893,186
  

 

 

   

 

 

 

Cash flows from financing activities:

    

Proceeds from issuance of term loan and notes, net of original issue discounts

     —         1,056,178   

Repayments of term loans

     (2,625     (8,925

Proceeds from borrowing of revolver

     7,000        16,000   

Repayment of revolver

     (36,000     (83,000

Payment of financing costs

     —         (51,605

Payment of deferred consideration

     (488     (707

Payment of redeemable non-controlling interest liability

     (10,181     —    

Principal payments on capital lease obligations

     (930     (1,439

Proceeds from exercise of stock options

     353        593   
  

 

 

   

 

 

 

Net cash provided by (used in) financing activities

     (42,871     927,095   
  

 

 

   

 

 

 

Net effect of exchange rate on cash and cash equivalents

     (506     566   
  

 

 

   

 

 

 

Net (decrease) increase in cash and cash equivalents

     (715     46,247   

Cash and cash equivalents:

    

Beginning of period

     32,379        33,030   
  

 

 

   

 

 

 

End of period

   $ 31,664      $ 79,277   
  

 

 

   

 

 

 

Supplemental cash flow information:

    

Interest paid

   $ 14,226      $ 16,659   

Income taxes paid

   $ 702      $ 968   

See accompanying notes to consolidated financial statements.

 

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Endurance International Group Holdings, Inc.

Notes to Consolidated Financial Statements

(unaudited)

1. Nature of Business

Formation and Nature of Business

Endurance International Group Holdings, Inc., (“Holdings”) is a Delaware corporation which together with its wholly owned subsidiary company, EIG Investors Corp. (“EIG Investors”), its primary operating subsidiary company, The Endurance International Group, Inc. (“EIG”), and other subsidiary companies of EIG, collectively form the “Company.” The Company is a leading provider of cloud-based platform solutions designed to help small- and medium-sized businesses succeed online.

EIG and EIG Investors were incorporated in April 1997 and May 2007, respectively, and Holdings was originally formed as a limited liability company in October 2011 in connection with the acquisition by investment funds and entities affiliated with Warburg Pincus and Goldman, Sachs & Co. on December 22, 2011 of a controlling interest in EIG Investors, EIG and EIG’s subsidiary companies. On November 7, 2012, Holdings reorganized as a Delaware limited partnership and on June 25, 2013, Holdings converted into a Delaware C-corporation and changed its name to Endurance International Group Holdings, Inc.

2. Summary of Significant Accounting Policies

Basis of Preparation

The accompanying consolidated financial statements, which include the accounts of the Company and its subsidiaries, have been prepared using accounting principles generally accepted in the United States of America (“U.S. GAAP”). All intercompany transactions have been eliminated on consolidation. The Company has reviewed the criteria of the Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) 280-10, Segment Reporting, and determined that the Company is comprised of two operating segments, and those segments meet the aggregation criteria to be treated as one reportable segment.

Use of Estimates

U.S. GAAP requires management to make certain estimates, judgments and assumptions that affect the reported amounts of assets, liabilities and disclosure of contingent assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenue and expenses during the reporting period. These estimates, judgments and assumptions used in preparing the accompanying consolidated financial statements are based on the relevant facts and circumstances as of the date of the consolidated financial statements. Although the Company regularly assesses these estimates, judgments and assumptions used in preparing the consolidated financial statements, actual results could differ from those estimates. Changes in estimates are recorded in the period in which they become known. The more significant estimates reflected in these consolidated financial statements include estimates of fair value of assets acquired and liabilities assumed under purchase accounting related to the Company’s acquisitions and when evaluating goodwill and long-lived assets for potential impairment, the estimated useful lives of intangible and depreciable assets, revenue recognition for multiple-element arrangements, stock-based compensation, contingent consideration, derivative instruments, certain accruals, reserves and deferred taxes.

Unaudited Interim Financial Information

The accompanying interim consolidated balance sheet as of March 31, 2016, and the related statements of operations and comprehensive income for the three months ended March 31, 2015 and 2016, cash flows for the three months ended March 31, 2015 and 2016, and the notes to consolidated financial statements are unaudited. These unaudited consolidated financial statements have been prepared on the same basis as the audited consolidated financial statements. The unaudited consolidated financial statements include, in the opinion of management, all adjustments, consisting only of normal recurring adjustments that are necessary for a fair presentation of the Company’s financial position at March 31, 2016, results of operations for the three months ended March 31, 2015 and 2016 and cash flows for the three months ended March 31, 2015 and 2016. The consolidated results in the consolidated statements of operations and comprehensive income are not necessarily indicative of the results of operations to be expected for the full fiscal year ending December 31, 2016.

Accounts Receivable

Accounts receivable is primarily composed of cash due from credit card companies for unsettled transactions charged to subscribers’ credit cards. As these amounts reflect authenticated transactions that are fully collectible, the Company does not maintain an allowance for doubtful accounts. The Company also accrues for earned referral fees and commissions, which are governed by reseller or affiliate agreements, when the amount is reasonably estimable.

 

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Prepaid Domain Name Registry Fees

Prepaid domain name registry fees represent amounts that are paid in full at the time a domain is registered by one of the Company’s registrars on behalf of a customer. The registry fees are recognized on a straight-line basis over the term of the domain registration period.

Derivative Instruments and Hedging Activities

FASB ASC 815, Derivatives and Hedging, or ASC 815, provides the disclosure requirements for derivatives and hedging activities with the intent to provide users of financial statements with an enhanced understanding of: (a) how and why an entity uses derivative instruments, (b) how the entity accounts for derivative instruments and related hedged items, and (c) how derivative instruments and related hedged items affect an entity’s financial position, financial performance, and cash flows. Further, qualitative disclosures are required that explain the Company’s objectives and strategies for using derivatives, as well as quantitative disclosures about the fair value of and gains and losses on derivative instruments, and disclosures about credit-risk-related contingent features in derivative instruments.

As required by ASC 815, the Company records all derivatives on the balance sheet at fair value. The accounting for changes in the fair value of derivatives depends on the intended use of the derivative, whether the Company has elected to designate a derivative in a hedging relationship and apply hedge accounting and whether the hedging relationship has satisfied the criteria necessary to apply hedge accounting. Derivatives designated and qualifying as a hedge of the exposure to changes in the fair value of an asset, liability, or firm commitment attributable to a particular risk, such as interest rate risk, are considered fair value hedges. Derivatives designated and qualifying as a hedge of the exposure to variability in expected future cash flows, or other types of forecasted transactions, are considered cash flow hedges. Derivatives may also be designated as hedges of the foreign currency exposure of a net investment in a foreign operation. Hedge accounting generally provides for the matching of the timing of gain or loss recognition on the hedging instrument with the recognition of the changes in the fair value of the hedged asset or liability that are attributable to the hedged risk in a fair value hedge or the earnings effect of the hedged forecasted transactions in a cash flow hedge. The Company may enter into derivative contracts that are intended to economically hedge certain of its risk, even though hedge accounting does not apply or the Company elects not to apply hedge accounting.

In accordance with the FASB’s fair value measurement guidance in ASU 2011-04, Fair Value Measurement (Topic 820): Amendments to Achieve Common Fair Value Measurement and Disclosure Requirements, the Company made an accounting policy election to measure the credit risk of its derivative financial instruments that are subject to master netting agreements on a net basis by counterparty portfolio.

Property and Equipment

Property and equipment is recorded at cost or fair value if acquired in an acquisition. The Company also capitalizes the direct costs of constructing additional computer equipment for internal use, as well as upgrades to existing computer equipment which extend the useful life, capacity or operating efficiency of the equipment. Capitalized costs include the cost of materials, shipping and taxes. Materials used for repairs and maintenance of computer equipment are expensed and recorded as a cost of revenue. Materials on hand and construction-in-process are recorded as property and equipment. Assets recorded under capital lease are depreciated over the lease term. Depreciation is computed using the straight-line method over the estimated useful lives of the related assets as follows:

 

Building

     Thirty-five years   

Software

     Two to three years   

Computers and office equipment

     Three years   

Furniture and fixtures

     Five years   

Leasehold improvements

     Shorter of useful life or remaining term of the lease   

Software Development Costs

The Company accounts for software development costs for internal use software under the provisions of ASC 350-40, “Internal-Use Software.” Accordingly, certain costs to develop internal-use computer software are capitalized, provided these costs are expected to be recoverable. During the three months ended March 31, 2015 and 2016, the Company capitalized internal-use software development costs of $1.3 million and $2.6 million, respectively.

 

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Goodwill

Goodwill relates to amounts that arose in connection with the Company’s various business combinations and represents the difference between the purchase price and the fair value of the identifiable intangible and tangible net assets when accounted for using the purchase method of accounting. Goodwill is not amortized, but is subject to periodic review for impairment. Events that would indicate impairment and trigger an interim impairment assessment include, but are not limited to, current economic and market conditions, including a decline in the equity value of the business, a significant adverse change in certain agreements that would materially affect reported operating results, business climate or operational performance of the business and an adverse action or assessment by a regulator. Additionally, the reorganization or change in the number of reporting units could result in the reassignment of goodwill between reporting units and may trigger an impairment assessment.

In accordance with ASC 350, Intangibles—Goodwill and Other , or ASC 350, the Company is required to review goodwill by reporting unit for impairment at least annually or more often if there are indicators of impairment present. Under U.S. GAAP, a reporting unit is either the equivalent of, or one level below, an operating segment. As of December 31, 2015, the Company determined that it had one reporting unit. During the three months ended March 31, 2016, following the acquisition of Constant Contact, Inc. (“Constant Contact”), the Company has determined it now has two reporting units. Historically, the Company has performed its annual impairment analysis during the fourth quarter of each year. The provisions of ASC 350 require that a two-step impairment test be performed for goodwill. In the first step, the Company compares the fair value of its reporting unit to which goodwill has been allocated to its carrying value. If the fair value of the reporting unit exceeds the carrying value of the net assets assigned to that reporting unit, goodwill is considered not impaired and the Company is not required to perform further testing. If the carrying value of the net assets assigned to the reporting unit exceeds the fair value of the reporting unit, then the Company must perform the second step of the impairment test in order to determine the implied fair value of the reporting unit’s goodwill. If the carrying value of a reporting unit’s goodwill exceeds its implied fair value, then the Company would record an impairment loss equal to the difference.

At December 31, 2015, the Company had one reporting unit. The goodwill impairment assessment as of December 31, 2015 was based on then-current market capitalization. As of December 31, 2015, the fair value of the Company’s reporting unit exceeded the carrying value of the reporting unit’s net assets. Therefore, no impairment existed as of that date. For the three months ended March 31, 2016, the Company determined that there were no factors to indicate that the fair value of its reporting units could be impaired, therefore, no impairment testing was performed during this period.

Determining the fair value of a reporting unit, if applicable, requires the Company to make judgments and involves the use of significant estimates and assumptions. These estimates and assumptions relate to, among other things, revenue growth rates and operating margins used to calculate projected future cash flows, risk-adjusted discount rates, future economic and market conditions and determination of appropriate market comparables. The Company bases its fair value estimates on assumptions it believes to be reasonable but that are unpredictable and inherently uncertain. Actual future results may differ from those estimates.

The Company had goodwill of $1,207.3 million and $1,830.2 million as of December 31, 2015 and March 31, 2016, respectively, and no impairment charges have been recorded.

Long-Lived Assets

The Company’s long-lived assets consist primarily of intangible assets, including acquired subscriber relationships, trade names, intellectual property, developed technology, domain names available for sale and in-process research and development (“IPR&D”). The Company also has long-lived tangible assets, primarily consisting of property and equipment. The majority of the Company’s intangible assets are recorded in connection with its various acquisitions. The Company’s intangible assets are recorded at fair value at the time of their acquisition. The Company amortizes intangible assets over their estimated useful lives.

Determination of the estimated useful lives of the individual categories of intangible assets is based on the nature of the applicable intangible asset and the expected future cash flows to be derived from the intangible asset. Amortization of intangible assets with finite lives is recognized in accordance with their estimated projected cash flows.

The Company evaluates long-lived intangible and tangible assets whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. If indicators of impairment are present and undiscounted future cash flows are less than the carrying amount, the fair value of the assets is determined and compared to the carrying value. If the fair value is less than the carrying value, then the carrying value of the asset is reduced to the estimated fair value and an impairment loss is charged to expense in the period the impairment is identified. No such impairment losses have been identified in the three months ended March 31, 2015 and 2016.

 

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Indefinite life intangible assets include domain names that are available for sale which are recorded at cost to acquire. These assets are not being amortized and are being tested for impairment annually and whenever events or changes in circumstance indicate that their carrying value may not be recoverable. When a domain name is sold, the Company records the cost of the domain in cost of revenue.

Acquired In-Process Research and Development (IPR&D)

Acquired IPR&D represents the fair value assigned to research and development assets that the Company acquires in connection with business combinations that have not been completed at the date of acquisition. The acquired IPR&D is capitalized as an intangible asset and reviewed on a quarterly basis to determine future use. Any impairment loss of the acquired IPR&D is charged to expense in the period the impairment is identified. No such impairment loss was identified for the three months ended March 31, 2015. During the three months ended March 31, 2016, the Company identified that the acquired fair value of the remaining IPR&D acquired in connection with its acquisition of Webzai Ltd. (“Webzai”), was impaired. The Company recorded a $1.4 million impairment charge during the three months ended March 31, 2016 in engineering and development expense in the Company’s consolidated statements of operations and comprehensive income.

Revenue Recognition

The Company generates revenue primarily from selling subscriptions for cloud-based products and services. The subscriptions are similar across all of the Company’s brands and are provided under contracts pursuant to which the Company has ongoing obligations to support the subscriber. These contracts are generally for service periods of up to 36 months and typically require payment in advance. The Company recognizes the associated revenue ratably over the service period , whether the associated revenue is derived from a direct subscriber or through a reseller. Deferred revenue represents the liability to subscribers for advance billings for services not yet provided and the fair value of the assumed liability outstanding for subscriber relationships purchased in an acquisition.

The Company sells domain name registrations that provide a subscriber with the exclusive use of a domain name. These domains are primarily obtained by one of the Company’s registrars on the subscriber’s behalf, or to a lesser extent by the Company from third-party registrars on the subscriber’s behalf. Domain registration fees are non-refundable.

Revenue from the sale of a domain name registration by a registrar within the Company is recognized ratably over the subscriber’s service period as the Company has the obligation to provide support over the domain term. Revenue from the sale of a domain name registration purchased by the Company from a third-party registrar is recognized when the subscriber is billed on a gross basis as there are no remaining Company obligations once the sale to the subscriber occurs, and the Company has full discretion on the sales price and bears all credit risk.

Revenue from the sale of premium domains is recognized when persuasive evidence of an arrangement to sell such domains exists, delivery of an authorization key to access the domain name has occurred, the fee for the sale of the premium domain is fixed or determinable, and collection of the fee for the sale of the premium domain is deemed probable.

Revenue from the sale of non-term based applications and services, such as certain online security products and professional technical services, referral fees and commissions, is recognized when the product is purchased, the service is provided or the referral fee or commission is earned, respectively.

A substantial amount of the Company’s revenue is generated from transactions that are multiple-element service arrangements that may include hosting plans, domain name registrations, and other cloud-based products and services.

The Company follows the provisions of the FASB, Accounting Standards Update (“ASU”) No. 2009-13 (“ASU 2009-13”), Revenue Recognition (Topic 605), Multiple-Deliverable Revenue Arrangements—a consensus of the FASB Emerging Issues Task Force, and allocates revenue to each deliverable in a multiple-element service arrangement based on its respective relative selling price.

Under ASU 2009-13, to treat deliverables in a multiple-element service arrangement as separate units of accounting, the deliverables must have standalone value upon delivery. If the deliverables have standalone value upon delivery, the Company accounts for each deliverable separately. Hosting services, domain name registrations, cloud-based products and services have standalone value and are often sold separately.

 

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When multiple deliverables included in a multiple-element service arrangement are separated into different units of accounting, the total transaction amount is allocated to the identified separate units based on a relative selling price hierarchy. The Company determines the relative selling price for a deliverable based on vendor specific objective evidence (“VSOE”) of fair value, if available, or best estimate of selling price (“BESP”), if VSOE is not available. The Company has determined that third-party evidence of selling price (“TPE”) is not a practical alternative due to differences in its multi-brand offerings compared to competitors and the lack of availability of relevant third-party pricing information. The Company has not established VSOE for its offerings due to lack of pricing consistency, the introduction of new products, services and other factors. Accordingly, the Company generally allocates revenue to the deliverables in the arrangement based on the BESP. The Company determines BESP by considering its relative selling prices, competitive prices in the marketplace and management judgment; these selling prices, however, may vary depending upon the particular facts and circumstances related to each deliverable. The Company analyzes the selling prices used in its allocation of transaction amount, at a minimum, on a quarterly basis. Selling prices are analyzed on a more frequent basis if a significant change in the business necessitates a more timely analysis.

The Company maintains a reserve for refunds and chargebacks related to revenue that has been recognized and is expected to be refunded. The Company had a refund and chargeback reserve of $0.5 million and $0.6 million as of December 31, 2015 and March 31, 2016, respectively. The portion of deferred revenue that is expected to be refunded at December 31, 2015 and March 31, 2016 was $1.8 million and $2.2 million, respectively. Based on refund history, a significant majority of refunds happen in the same fiscal month that the customer contract starts or renews. Approximately 80% of all refunds happen in the same fiscal month that the contract starts or renews, and approximately 92% of all refunds happen within 45 days of the contract start or renewal date.

Income Taxes

Income taxes are accounted for in accordance with ASC 740, Accounting for Income Taxes , or ASC 740. Deferred tax assets and liabilities are recognized for the estimated future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases and operating loss and tax credit carry-forwards. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date.

ASC 740 clarifies the accounting for income taxes by prescribing a minimum recognition threshold that a tax position is required to meet before being recognized in the financial statements. The Company recognizes the effect of income tax positions only if those positions are more likely than not to be sustained. Recognized income tax positions are measured at the largest amount that is more likely than not to be realized. Changes in recognition or measurement are reflected in the period in which the change in judgment occurs. There were no unrecognized tax benefits in the three months ended March 31, 2015 and 2016.

The Company records interest related to unrecognized tax benefits in interest expense and penalties in operating expenses. During the three months ended March 31, 2015 and 2016, the Company did not recognize any interest and penalties related to unrecognized tax benefits.

Stock-Based Compensation

The Company may issue restricted stock units, restricted stock awards and stock options which vest upon the satisfaction of a performance condition and/ or a service condition. The Company follows the provisions of ASC 718, Compensation—Stock Compensation , or ASC 718, which requires employee stock-based payments to be accounted for under the fair value method. Under this method, the Company is required to record compensation cost based on the estimated fair value for stock-based awards granted over the requisite service periods for the individual awards, which generally equals the vesting periods; net of estimated forfeitures. The Company uses the straight-line amortization method for recognizing stock-based compensation expense. In addition, for stock-based awards where vesting is dependent upon achieving certain performance goals, the Company estimates the likelihood of achieving the performance goals against established performance targets.

The Company estimates the fair value of employee stock options on the date of grant using the Black-Scholes option-pricing model, which requires the use of highly subjective estimates and assumptions. For restricted stock awards granted, the Company estimates the fair value of each restricted stock award based on the closing trading price of its common stock on the date of grant.

Net Income per Share

The Company considered ASC 260-10, Earnings per Share , or ASC 260-10, which requires the presentation of both basic and diluted earnings per share in the consolidated statements of operations and comprehensive income. The Company’s basic net income

 

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per share is computed by dividing net income by the weighted average number of shares of common stock outstanding for the period, and, if there are dilutive securities, diluted income per share is computed by including common stock equivalents which includes shares issuable upon the exercise of stock options, net of shares assumed to have been purchased with the proceeds, using the treasury stock method.

 

    Three Months Ended
March 31,
 
    2015     2016  
    (unaudited)  
   

(in thousands, except share amount and

per share data)

 

Net income attributable to Endurance International Group Holdings, Inc.

  $ 884      $ 21,811   
 

 

 

   

 

 

 

Net income per share attributable to Endurance International Group Holdings, Inc.:

   

Basic

  $ 0.01      $ 0.17   
 

 

 

   

 

 

 

Diluted

  $ 0.01      $ 0.16   
 

 

 

   

 

 

 

Weighted-average common shares outstanding used in computing basic net income per share attributable to Endurance International Group Holdings, Inc.

    130,996,079        132,178,693   

Dilutive common stock options and restricted stock awards

    1,679,859        1,385,191   
 

 

 

   

 

 

 

Weighted-average common shares outstanding used in computing diluted net income per share attributable to Endurance International Group Holdings, Inc.

    132,675,938        133,563,884   
 

 

 

   

 

 

 

The Company excluded common stock equivalents from the computation of diluted net income per share because they had an anti-dilutive impact as the proceeds under the treasury stock method were in excess of the average fair market value. For the three months ended March 31, 2015 and 2016, the Company excluded stock options, restricted stock awards and restricted shares amounting to 212,150 and 12,459,929, respectively, as their inclusion would have been antidilutive as the proceeds under the treasury stock method were in excess of the average fair market value for the respective periods.

Recent Accounting Pronouncements

The Company adopted ASU 2015-03, “Simplifying the Presentation of Debt Issuance Cost” beginning on January 1, 2016, and retrospectively for all periods presented. ASU 2015-03 requires that debt issuance costs related to a recognized debt liability be presented in the balance sheet as a direct deduction from the carrying amount of that debt liability, consistent with debt discounts. The unamortized value of deferred financing costs associated with our revolving credit facility were not affected by the ASU and continue to be presented as an asset on the Company’s consolidated balance sheets.

In May 2014, the FASB issued ASU No. 2014-09, Revenue from Contracts with Customers (Topic 606) , or ASU 2014-09, which supersedes nearly all existing revenue recognition guidance under U.S. GAAP. Since then, the FASB has also issued ASU 2016-08, Revenue from Contracts with Customers (Topic 606), Principals versus Agent Considerations and ASU 2016-10, Revenue from Contracts with Customers (Topic 606), Identifying Performance Obligations and Licensing, which further elaborate on the original ASU No. 2014-09 . The core principle of these updates is to recognize revenues when promised goods or services are transferred to customers in an amount that reflects the consideration to which the entity expects to be entitled for those goods or services. ASU 2014-09 defines a five step process to achieve this core principle and, in doing so, more judgments and estimates may be required within the revenue recognition process than are required under existing U.S. GAAP. In July 2015, the FASB approved a one-year deferral of the effective date to January 1, 2018, with early adoption to be permitted as of the original effective date of January 1, 2017. Once this standard becomes effective, companies may use either of the following transition methods: (i) a full retrospective approach reflecting the application of the standard in each reporting period with the option to elect certain practical expedients, or (ii) a retrospective approach with the cumulative effect of initially adopting ASU 2014-09 recognized at the date of adoption (which includes additional footnote disclosures). The Company is currently evaluating the impact of its pending adoption of ASU 2014-09 on its consolidated financial statements and has not yet determined the method by which it will adopt the standard.

 

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In November 2015, the FASB issued ASU No. 2015-17, Income Taxes: Balance Sheet Classification of Deferred Taxes, or ASU 2015-17. This new guidance requires that deferred tax liabilities and assets be classified as noncurrent in the balance sheet, in order to simplify the presentation of deferred income taxes. ASU 2015-17 is effective for annual reporting periods beginning after December 15, 2016. The adoption of ASU 2015-17 did not have a material impact on its consolidated financial statements.

In February 2016, the FASB issued Accounting Standards Update No. 2016-02,  Leases . The new standard establishes a right-of-use (ROU) model that requires a lessee to record a ROU asset and a lease liability on the balance sheet for all leases with terms longer than 12 months. Leases will be classified as either finance or operating, with classification affecting the pattern of expense recognition in the income statement. The new standard is effective for fiscal years beginning after December 15, 2018, including interim periods within those fiscal years. A modified retrospective transition approach is required for capital and operating leases existing at, or entered into after, the beginning of the earliest comparative period presented in the financial statements, with certain practical expedients available. The Company is currently evaluating the impact of its pending adoption of the new standard on its consolidated financial statements.

In March 2016, the FASB issued Accounting Standards Update No. 2016-07, Investments—Equity Method and Joint Ventures: Simplifying the Transition to the Equity Method of Accounting. This new guidance removes the requirement for retroactive adjustment when an increase or decrease in the level of ownership qualifies an investment for the equity method. This amendment is effective for fiscal years beginning after December 15, 2016. The Company is currently evaluating the impact of its pending adoption of the new standard on its consolidated financial statements.

In March 2016, the FASB issued Accounting Standards Update No. 2016-09, Compensation-Stock Compensation: Improvements to Employee Share-Based Payment Accounting. This new standard simplifies the accounting tax aspects, eliminates complex accounting for excess tax deductions, permits higher withholdings for cashless exercises, and eliminates the requirement to estimate a forfeiture rate. This amendment is effective for annual periods beginning after December 15, 2016, and early adoption is permitted. The Company is currently evaluating the impact of its pending adoption of the new standard on its consolidated financial statements.

3. Acquisitions

The Company accounts for the acquisitions of businesses using the purchase method of accounting. The Company allocates the purchase price to the tangible and identifiable intangible assets and liabilities assumed based on their estimated fair values. Purchased identifiable intangible assets typically include subscriber relationships, trade names, domain names held for sale, developed technology and IPR&D. The methodologies used to determine the fair value assigned to subscriber relationships and domain names held for sale are typically based on the excess earnings method that considers the return received from the intangible asset and includes certain expenses and also considers an attrition rate based on the Company’s internal subscriber analysis and an estimate of the average life of the subscribers. The fair value assigned to trade names is typically based on the income approach using a relief from royalty methodology that assumes that the fair value of a trade name can be measured by estimating the cost of licensing and paying a royalty fee for the trade name that the owner of the trade name avoids. The fair value assigned to developed technology typically uses the cost approach. The fair value assigned to IPR&D is based on the cost approach. If applicable, the Company estimates the fair value of contingent consideration payments in determining the purchase price. The contingent consideration is then adjusted to fair value in subsequent periods as an increase or decrease in current earnings in general and administrative expense in the consolidated statements of operations.

WZ UK Ltd.

In August 2014, the Company made an aggregate investment of $3.9 million for a joint venture with a 49% ownership interest in WZ UK Ltd., which is a provider of technology and sales and marketing services associated with web builder solutions. The Company has an option to acquire additional equity interests from the shareholders of the non-controlling interest (“NCI”) in WZ UK Ltd. On January 6, 2016, the Company partially exercised this option, which increased its stake in WZ UK Ltd. from 49% to 57.5%.

Upon the exercise of the option, the Company estimated the fair value of the assets and liabilities in accordance with the guidance for business combinations and estimated that the value of the NCI on January 6, 2016 was $10.8 million. The estimated aggregate purchase price of $22.2 million included a gain of $11.4 million that was calculated based on the implied fair value of the Company’s 49% equity investment and the NCI of $10.8 million, which were allocated on a preliminary basis to goodwill of $21.6 million, intangible assets consisting of subscriber relationships of $4.9 million, and property, plant and equipment of $0.3 million, offset by deferred revenue of $3.3 million and negative working capital of $1.3 million. Goodwill related to the acquisition is not deductible for tax purposes.

 

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The $11.4 million gain was recognized in other income in the Company’s consolidated statement of operations and comprehensive income during the three months ended March 31, 2016. As the NCI is subject to a put option that is outside the control of the Company, it is deemed a redeemable non-controlling interest and not recorded in permanent equity, and is being presented as mezzanine redeemable non-controlling interest on the consolidated balance sheet. The difference between the initial fair value of the redeemable non-controlling interest and the value expected to be paid on exercise, which is estimated to be $30.0 million, is being accreted over the period commencing January 6, 2016, and up to the end of the second call option period which is August 14, 2016. Adjustments to the carrying amount of the redeemable non-controlling interest are charged to additional paid-in capital.

Constant Contact, Inc.

On October 30, 2015, the Company entered into a definitive agreement pursuant to which it agreed to acquire all of the outstanding shares of common stock of Constant Contact for $32.00 per share in cash, for a total purchase price of approximately $1.1 billion. Constant Contact is a leading provider of online marketing tools that are designed for small organizations, including small businesses, associations and non-profits. The acquisition closed on February 9, 2016.

The aggregate purchase price of $1.1 billion, which was paid in cash at the closing, is being allocated on a preliminary basis to intangible assets consisting of subscriber relationships, developed technology and trade names of $263.0 million, $52.0 million and $83.0 million, respectively, goodwill of $601.1 million, property and equipment of $40.7 million, working capital of $182.0 million and long-term deposits of $2.0 million, offset by net a net deferred tax liability of $122.9 million, deferred revenue of $25.2 million and long-term obligations of $0.1 million. The goodwill reflects the value of expected synergies.

Goodwill related to the acquisition is not deductible for tax purposes.

For the three months ended March 31, 2016, $41.7 million of revenue attributable to 2016 acquisitions was included in the Company’s consolidated statement of operations and comprehensive income. The $31.1 million of transaction expenses in the Company’s consolidated statement of operations and comprehensive income included a $16.8 million charge related to the acceleration of the vesting of certain Constant Contact equity awards, $10.8 million of advisor fees and $3.5 million of legal fees.

For the intangible assets acquired in connection with all acquisitions completed during the three months ended March 31, 2016, developed technology has a weighted-useful life of 4.1 years, subscriber relationships have a weighted-useful life of 4.4 years and trade names have a weighted-useful life of 4.7 years.

Pro Forma Disclosure

The following unaudited information is presented as if the Constant Contact acquisition was completed as of January 1, 2015. The unaudited pro forma results are not necessarily indicative of the actual results that would have occurred had the transaction actually taken place at the beginning of the period indicated. Unaudited pro forma revenue for the three months ended March 31, 2015 and 2016 is $267.0 million and $277.8 million, respectively. Unaudited pro forma net loss attributable to Endurance International Group Holdings, Inc. for the three months ended March 31, 2015 is $25.3 million and unaudited pro forma net income attributable to Endurance International Group Holdings, Inc. for the three months ended March 31, 2016 is $35.6 million. The unaudited pro forma net income (loss) includes adjustments for additional interest expense related to the debt incurred in connection with the acquisition of Constant Contact.

Pro forma revenue for the three months ended March 31, 2016 has been reduced by $13.7 million due to the application of purchase accounting for Constant Contact, which reduced the fair value of deferred revenue as of the closing date. Additionally, pro forma net income for the three months ended March 31, 2016 includes restructuring charges of approximately $11.4 million as the Company implemented plans to reduce the cost structure of the combined businesses.

Summary of Deferred Consideration Related to Acquisitions

Components of deferred consideration short-term and long-term as of December 31, 2015 and March 31, 2016, consisted of the following:

 

    December 31, 2015     March 31, 2016  
    Short-
term
    Long-
term
    Short-
term
    Long-
term
 
    (in thousands)  

Mojoness, Inc. (Acquired in 2012)

  $ 657      $ 813      $ 822      $ —    

Typepad Holdings LLC (Acquired in 2013)

    2,800        —         2,800        —    

Webzai Ltd. (Acquired 2014)

    2,848        —         2,909        —    

BuyDomains (Acquired in 2014)

    4,283        —         4,374        —    

Verio (Acquired in 2015)

    2,474        —         2,474        —    

World Wide Web Hosting (Acquired in 2015)

    4,600        —         4,600        —    

Ace Data Center (Acquired in 2015)

    29,626        —         30,257        —    

Ecommerce LLC (Acquired in 2015)

    4,200        —         4,200        —    
 

 

 

   

 

 

   

 

 

   

 

 

 

Total

  $ 51,488      $ 813      $ 52,436      $ —    
 

 

 

   

 

 

   

 

 

   

 

 

 

 

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4. Property and Equipment and Capital Lease Obligations

Components of property and equipment consisted of the following:

 

    December 31, 2015     March 31, 2016  
    (in thousands)  

Land

  $ 713      $ 713   

Building

    5,091        5,092   

Software

    40,336        45,605   

Computers and office equipment

    97,332        128,184   

Furniture and fixtures

    5,914        10,567   

Leasehold improvements

    7,126        20,634   

Construction in process

    6,137        4,718   
 

 

 

   

 

 

 

Property and equipment—at cost

    162,649        215,513   

Less accumulated depreciation

    (86,887     (101,806
 

 

 

   

 

 

 

Property and equipment—net

  $ 75,762      $ 113,707   
 

 

 

   

 

 

 

Depreciation expense related to property and equipment for the three months ended March 31, 2015 and 2016 was $7.9 million and $13.2 million, respectively.

Property under capital lease with a cost basis of $21.5 million was included in software as of March 31, 2016. The net carrying value of property under capital lease as of March 31, 2016 was $11.5 million.

5. Fair Value Measurements

The following valuation hierarchy is used for disclosure of the valuation inputs used to measure fair value. This hierarchy prioritizes the inputs into three broad levels as follows:

 

    Level 1 inputs are quoted prices (unadjusted) in active markets for identical assets or liabilities.

 

    Level 2 inputs are quoted prices for similar assets or liabilities in active markets or inputs that are observable for the asset or liability, either directly or indirectly through market corroboration, for substantially the full term of the financial instrument.

 

    Level 3 inputs are unobservable inputs based on the Company’s own assumptions used to measure assets and liabilities at fair value.

A financial asset or liability’s classification within the hierarchy is determined based on the lowest level input that is significant to the fair value measurement.

As of December 31, 2015 and March 31, 2016, the Company’s financial assets or liabilities required to be measured on a recurring basis are accrued earn-out consideration payable in connection with the 2012 acquisition of certain assets of Mojoness, Inc., or Mojo, and the 2015 interest rate cap. The Company has classified its interest rate cap discussed in Note 5 below within Level 2 of the fair value hierarchy. The Company has classified its liabilities for contingent earn-out consideration related to Mojo within Level 3 of the fair value hierarchy because the fair value is determined using significant unobservable inputs, which include probability weighted cash flows. During the three months ended March 31, 2016, the Company paid $0.7 million related to the earn-out provisions for the Mojo acquisition.

 

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Basis of Fair Value Measurements

 

     Balance      Quoted Prices
in Active Markets
for Identical Items
(Level 1)
     Significant
Other
Observable
Inputs
(Level 2)
     Significant
Unobservable
Inputs
(Level 3)
 
     (in thousands)  

Balance at December 31, 2015:

           

Financial assets:

           

Interest rate cap (included in other assets)

   $ 3,130         —        $ 3,130       $ —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Total financial assets

   $ 3,130         —         $ 3,130       $ —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Financial liabilities:

           

Contingent earn-out consideration

   $ 1,469         —           —         $ 1,469   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total financial liabilities

   $ 1,469         —           —         $ 1,469   
  

 

 

    

 

 

    

 

 

    

 

 

 

Balance at March 31, 2016:

           

Financial assets:

           

Interest rate cap (included in other assets)

   $ 1,013         —         $ 1,013       $ —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Total financial assets

   $ 1,013         —         $ 1,013       $ —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Financial liabilities:

           

Contingent earn-out consideration

   $ 822         —           —         $ 822   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total financial liabilities

   $ 822         —           —         $ 822   
  

 

 

    

 

 

    

 

 

    

 

 

 

The following table summarizes the changes in the financial liabilities measured on a recurring basis using Level 3 inputs as of March 31, 2016:

 

    Amount  
    (in thousands)  

Financial liabilities measured using Level 3 inputs at December 31, 2015

  $ 1,469   

Payment of contingent earn-outs related to 2012 acquisition

    (668

Change in fair value of contingent earn-outs

    21   
 

 

 

 

Financial liabilities measured using Level 3 inputs at March 31, 2016

  $ 822   
 

 

 

 

6. Derivatives and Hedging Activities

Risk Management Objective of Using Derivatives

The Company is exposed to certain risk arising from both its business operations and economic conditions. The Company principally manages its exposures to a wide variety of business and operational risks through management of its core business activities. The Company manages economic risks, including interest rate, liquidity, and credit risk primarily by managing the amount, sources, and duration of its debt funding and the use of derivative financial instruments. Specifically, the Company enters into derivative financial instruments to manage exposures that arise from business activities that result in the receipt or payment of future known and uncertain cash amounts, the value of which are determined by interest rates. The Company’s derivative financial instruments are used to manage differences in the amount, timing, and duration of the Company’s known or expected cash receipts and its known or expected cash payments principally related to the Company’s investments and borrowings.

 

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Cash Flow Hedges of Interest Rate Risk

The Company entered into a three-year interest rate cap on December 9, 2015 as part of its risk management strategy. The objective of the interest rate cap, designated as a cash flow hedge, involves the receipt of variable amounts from a counterparty if interest rates rise above the strike rate on the contract in exchange for an upfront premium. Therefore, this derivative limits the Company’s exposure if the rate rises, but also allows the Company to benefit when the rate falls.

The effective portion of changes in the fair value of derivatives that qualify as cash flow hedges is recorded in AOCI, and is subsequently reclassified into earnings in the period that the hedged forecasted transaction affects earnings. Amounts reported in AOCI related to derivatives will be reclassified to interest expense as interest payments are made on the Company’s variable-rate debt. Any ineffective portion of the change in fair value of the derivatives is recognized directly in earnings. There was no ineffectiveness recorded in earnings for the three months ended March 31, 2016.

As of March 31, 2016, the Company had one interest rate cap with $500.0 million notional value outstanding that was designated as a cash flow hedge of interest rate risk. The fair value of the interest rate contracts included in other assets on the consolidated balance sheet as of March 31, 2016 was $1.0 million, and there has been no effect on the Company’s consolidated statement of operations. The Company recognized $1.5 million loss, net of a tax benefit of $0.6 million in AOCI, of which the Company estimates that $40,651 will be reclassified as an increase to interest expense in the next twelve months.

7. Goodwill and Other Intangible Assets

The following table summarizes the changes in the Company’s goodwill balances from December 31, 2015 to March 31, 2016:

 

     Amount  
     (in thousands)  

Goodwill balance at December 31, 2015

   $ 1,207,255   

Goodwill related to 2015 acquisitions

     38   

Goodwill related to 2016 acquisitions

     622,691   

Foreign translation impact

     260   
  

 

 

 

Goodwill balance at March 31, 2016

   $ 1,830,244   
  

 

 

 

In accordance with ASC 350, the Company reviews goodwill and other indefinite-lived intangible assets for indicators of impairment on an annual basis and between tests if an event occurs or circumstances change that would more likely than not reduce the fair value of goodwill below its carrying amount. The Company concluded there were no events during the three months ended March 31, 2016 that would have required the Company to review goodwill and other indefinite-lived intangible assets for indicators of impairment.

At December 31, 2015, other intangible assets consisted of the following:

 

     Gross
Carrying
Amount
     Accumulated
Amortization
     Net
Carrying
Amount
     Weighted
Average
Useful Life
 
     (dollars in thousands)  

Developed technology

   $ 205,925       $ 80,795       $ 125,130         7 years   

Subscriber relationships

     397,791         256,461         141,330         5 years   

Trade-names

     81,792         42,080         39,712         6 years   

Intellectual property

     34,020         6,596         27,424         13 years   

Domain names available for sale

     27,859         3,107         24,752         Indefinite   

Leasehold interests

     314         314         —           1 years   

In-process research and development

     1,438         —          1,438        —     
  

 

 

    

 

 

    

 

 

    

Total December 31, 2015

   $ 749,139       $ 389,353       $ 359,786      
  

 

 

    

 

 

    

 

 

    

 

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During the three months ended March 31, 2016, the Company wrote-off acquired in-process research and development of $1.4 million, related to its acquisition of Webzai in 2014, as the Company had abandoned certain research and development projects in favor of other projects.

At March 31, 2016, other intangible assets consisted of the following:

 

     Gross
Carrying
Amount
     Accumulated
Amortization
     Net
Carrying
Amount
     Weighted
Average
Useful Life
 
     (dollars in thousands)  

Developed technology

   $ 288,925       $ 88,275       $ 200,650         7 years   

Subscriber relationships

     665,791         274,296         391,495         7 years   

Trade-names

     133,796         45,330         88,466         8 years   

Intellectual property

     34,030         7,556         26,474         13 years   

Domain names available for sale

     28,513         3,657         24,856         Indefinite   

Leasehold interests

     314         314         —           1 years   

In-process research and development

     —          —          —          —     
  

 

 

    

 

 

    

 

 

    

Total March 31, 2016

   $ 1,151,369       $ 419,428       $ 731,941      
  

 

 

    

 

 

    

 

 

    

 

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The estimated useful lives of the individual categories of other intangible assets are based on the nature of the applicable intangible asset and the expected future cash flows to be derived from the intangible asset. Amortization of intangible assets with finite lives is recognized over the period of time the assets are expected to contribute to future cash flows. The Company amortizes finite-lived intangible assets over the period in which the economic benefits are expected to be realized based upon their estimated projected cash flows.

The Company’s amortization expense is included in cost of revenue in the aggregate amounts of $21.3 million and $29.9 million for the three months ended March 31, 2015 and 2016, respectively.

8. Investments

As of December 31, 2015 and March 31, 2016, the Company’s carrying value of investments in privately-held companies was $27.9 million and $29.9 million, respectively.

In January 2012, the Company made an initial investment of $0.3 million to acquire a 25% interest in BlueZone Labs, LLC (“BlueZone”), a provider of “do-it-yourself” tools and managed search engine optimization services.

The Company also has an agreement with BlueZone to purchase products and services. During the three months ended March 31, 2015 and 2016, the Company purchased $0.3 million and $0.3 million, respectively, of products and services from BlueZone, which is included in cost of revenue in the Company’s consolidated statements of operations and comprehensive income. As of March 31, 2015 and 2016, $0.1 million and $0.3 million, respectively, relating to the Company’s investment in BlueZone was included in accounts payable and accrued expense in the Company’s consolidated balance sheet.

In May 2014, the Company made a strategic investment of $15.0 million in Automattic, Inc. (“Automattic”), which provides content management systems associated with WordPress. The investment represents less than 5% of the outstanding shares of Automattic and better aligns the Company with an important partner.

In August, 2014, the Company made an aggregate investment of $3.9 million for a joint venture with a 49% ownership interest in WZ UK Ltd., which is a provider of technology and sales marketing services associated with web builder solutions. The agreement provides for the acquisition of additional equity interests in WZ UK Ltd. at the option of the Company.

On January 6, 2016, the Company exercised an option to increase its stake in WZ UK Ltd. from 49% to 57.5%. For more detail see Note 3 to the consolidated financial statements.

In December 2014, the Company made an aggregate investment of $15.2 million to acquire a 40% ownership interest in AppMachine B.V. (“AppMachine”), which is a developer of software that allows users to build mobile applications for smart devices such as phones and tablets. Under the terms of the investment agreement for AppMachine, the Company is obligated to purchase the remaining 60% of AppMachine in three tranches of 20% within specified periods if AppMachine achieves a specified minimum revenue threshold within a designated timeframe. The consideration for each of the three tranches is calculated as the product of AppMachine’s revenue, as defined in the investment agreement, for the trailing twelve-month period prior to the applicable determination date times a specified multiple based upon year over year revenue growth multiplied by 20%. As of March 31, 2016, is the Company has not recorded a liability related to the purchase obligation.

On March 3, 2016, the Company purchased a $0.6 million convertible promissory note from a business that provides web and mobile money management solutions, with the potential for subsequent purchases of additional convertible notes.

Investments in which the Company’s interest is less than 20% and which are not classified as available-for-sale securities are carried at the lower of cost or net realizable value unless it is determined that the Company exercises significant influence over the investee company, in which case the equity method of accounting is used. For those investments in which the Company’s voting interest is between 20% and 50%, the equity method of accounting is used. Under this method, the investment balance, originally recorded at cost, is adjusted to recognize the Company’s share of net earnings or losses of the investee company, as they occur, limited to the extent of the Company’s investment in, advances to and commitments for the investee. These adjustments are reflected in equity (income) loss of unconsolidated entities, net of tax in the Company’s consolidated statements of operations and comprehensive income. The Company recognized net losses of $1.1 million and $0.7 million for the three month periods ended March 31, 2015 and 2016, respectively, related to its investments.

 

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From time to time, the Company may make new and follow-on investments and may receive distributions from investee companies. As of March 31, 2016, the Company was not obligated to fund any follow-on investments in these investee companies, other than AppMachine as described above.

As of March 31, 2016, the Company did not have an equity method investment in which the Company’s proportionate share of the investees’ net income or loss exceeded 10% of the Company’s consolidated assets or income from continuing operations.

9. Notes Payable

In November 2013, following its initial public offering (“IPO”), the Company repaid in full its November 2012 second lien term loan facility of $315.0 million and increased the first lien term loan facility (“November 2013 First Lien”) by $166.2 million to $1,050.0 million. The Company also increased its revolver loan capacity by $40.0 million to $125.0 million, none of which was drawn down at the time of the increase. The mandatory repayment of principal on the November 2013 First Lien was increased to approximately $2.6 million at the end of each quarter.

In connection with the acquisition of Constant Contact on February 9, 2016, the Company entered into a $735.0 million incremental first lien term loan facility and a new $165.0 million revolving credit facility (which replaced its existing $125.0 million revolving credit facility), and EIG Investors issued $350.0 million aggregate principal amount of 10.875% senior notes due 2024. The Company refers to the incremental first lien term loan facility and new revolving credit facility, together with its previously existing first lien term loan facility, as the “Senior Credit Facilities,” and to the 10.875% senior notes due 2024 as the “Notes.”

Incremental First Lien Term Loan Facility

On February 9, 2016, the Company entered into an incremental first lien term loan amendment to its existing credit agreement. Pursuant to this amendment, the Company obtained a seven-year $735.0 million incremental first lien term loan facility, which is in addition to its existing first lien term loan facility. The full amount of this incremental first lien term loan facility was drawn immediately following the effectiveness of the amendment.

This incremental first lien term loan facility will mature in seven years, was issued at a price of 97% of par (subject to the payment of an additional upfront fee of 1.0% on February 28, 2016 under certain circumstances), bears interest at a rate of LIBOR plus 5.0% per annum, subject to a LIBOR floor of 1.0% per annum, and has scheduled amortization of 0.50% per quarter.

As a result of the “most-favored nation” pricing provision in the Company’s existing credit agreement, the interest rate on its existing first lien term loan facility has increased to LIBOR plus 5.23% per annum (and was further stepped up to LIBOR plus 5.48% per annum on February 28, 2016 since certain circumstances materialized), subject to a LIBOR floor of 1.0% per annum. In addition, the Company is obligated to use commercially reasonable efforts to make voluntary prepayments on its existing first lien term loan facility to effectively double the amount of each scheduled amortization payment under that facility (which is 0.25% per quarter of the principal outstanding as of November 25, 2013).

Revolving Credit Facility

Also on February 9, 2016, the Company entered into a revolving facility amendment to its existing credit agreement. Pursuant to this amendment, the Company obtained a five-year $165.0 million revolving credit facility, which replaced its existing $125.0 million revolving credit facility. Loans under the facility will bear interest at a rate of LIBOR plus 4.0% per annum (subject to a leverage-based step-down), without a LIBOR floor. This revolving credit facility has a “springing” maturity date of August 10, 2019 unless the existing first lien term loan facility has been repaid in full or otherwise extended to at least 91 days after the maturity of the revolving credit facility.

Loans under the Senior Credit Facilities are also subject to a base rate option, with interest rate spreads of 1.0% per annum less than those applicable to LIBOR-based loans.

The Senior Credit Facilities have been fully and unconditionally guaranteed, on a senior unsecured basis, by the Company and certain of its subsidiaries (including Constant Contact and certain of its subsidiaries).

10.875% Senior Notes due 2024

On February 9, 2016, EIG Investors issued $350.0 million aggregate principal amount of Notes. The Notes will mature in February 2024, were issued at a price of 98.065% of par and will bear interest at the rate of 10.875% per annum. The Notes have been fully and unconditionally guaranteed, on a senior unsecured basis, by the Company and its subsidiaries that guarantee the Senior Credit Facilities (including Constant Contact and certain of its subsidiaries).

 

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In connection with the issuance of the Notes, the Company agreed to assist the initial purchasers of the Notes in marketing the Notes. In addition, the Company entered into a registration rights agreement with the initial purchasers of the Notes, which provides the holders of the Notes certain rights relating to registration of the Notes under the Securities Act.

Pursuant to the registration rights agreement, the Company will, among other obligations, use commercially reasonable efforts to file an exchange offer registration statement with respect to a registered offer, or the Exchange Offer, to exchange the Notes for substantially identical notes and consummate the Exchange Offer within 365 days after the issuance of the Notes. The Company will also use commercially reasonable efforts to cause to become effective a shelf registration statement to cover resales of the Notes by the beneficial owners thereof who satisfy certain conditions relating to the provision of information in connection with the shelf registration statement. A registration default will occur if, among other things, (1) the Company fails to consummate the Exchange Offer or have the shelf registration statement become effective on or before the date that is 365 days after the issue date or (2) the shelf registration statement becomes effective but thereafter ceases to be effective or usable in connection with the resale of Notes (subject to certain exceptions) during the periods specified in the registration rights agreement. If a registration default occurs with respect to the Notes, the annual interest rate of the Notes will be increased by 0.25% per annum and will increase again by 0.25% per annum 90 days thereafter until all registration defaults have been cured, up to a maximum amount of additional interest of 0.50% per annum. The Company will also use commercially reasonable efforts to cause to become effective a registration statement providing for the registration of certain secondary transactions in the Notes by Goldman, Sachs & Co. and its affiliates.

At December 31, 2015 and March 31, 2016, notes payable consisted of a first lien term loan facility with a principal amount outstanding of $1,026.4 million and $1,021.1 million, respectively, which bore interest at a LIBOR-based rate of 5.00% and 6.48%, respectively. The current portion of the first lien term loan as of December 31, 2015 and March 31, 2016 was $10.5 million and $21.0 million, respectively. As of December 31, 2015, notes payable included a bank revolver loan (“2015 Revolver loan”) of $67.0 million, consisting of a loan of $59.0 million which bore interest at a LIBOR-based rate of 7.75% and a loan of $8.0 million which bore interest at an alternate base rate of 8.50%. The amount outstanding under the 2015 Revolver loan as of December 31, 2015 was classified as current notes payable on the consolidated balance sheet.

In addition, as of March 31, 2016, the notes payable included $731.3 million, net of original issue discounts related to the incremental first lien term loan facility, which bore interest at a LIBOR-based rate of 6.0%. The current portion of the incremental first lien term loan as of March 31, 2016 was $14.7 million.

As of March 31, 2016, notes payable also included the $350.0 million of 10.875% senior notes due 2024, net of original issue discounts. There were no amounts outstanding under the revolving credit facility.

During the three months ended March 31, 2015 and 2016, the Company made aggregate mandatory repayments on the November 2013 First Lien of $2.6 million and $5.3 million, respectively. Also, during the three months ended March 31, 2016, the Company made a voluntary repayment on the incremental first lien term loan facility of $3.7 million. During the three months ended March 31, 2015 and 2016, the Company had drawn down an aggregate amount of $7.0 million and $16.0 million, respectively, on its Revolver loan, and repaid an aggregate amount of $36.0 million and $83.0 million, respectively, of the amounts drawn down, resulting in $21.0 million and $0.0 million, outstanding under the Revolver loan at March 31, 2015 and 2016, respectively. The maturity dates of the November 2013 First Lien, the incremental first lien term loan facility and the $350.0 million of 10.875% senior notes are November 9, 2019, February 9, 2023, and February 9, 2024, respectively. There is a springing maturity related to the revolving credit facility. If the Company’s November 2013 First Lien has not been paid in full prior to August 10, 2019 and the final maturity has not been extended to May 11, 2021 or later, then the maturity date of the revolving credit facility is February 9, 2019.

Effective November 25, 2013, the interest rate for a LIBOR based interest loan was reduced to 4.00% plus the greater of the LIBOR rate or 1.00%. The interest rate for a reference rate loan was reduced to 3.00% per annum plus the greater of the prime rate, the federal funds effective rate plus 0.50%, an Adjusted LIBOR rate or 2.00%. Effective February 9, 2016, the interest rates for a revolver loan are subject to variability based on certain covenants.

Interest is payable on maturity of the elected interest period for a LIBOR-based interest loan, which can be one, two, three or six months. Interest is payable at the end of each fiscal quarter for a reference rate loan, term loan or an ABR revolver loan.

The Company adopted ASU 2015-03, “Simplifying the Presentation of Debt Issuance Cost” beginning on January 1, 2016, and retrospectively for all periods presented. ASU 2015-03 requires that debt issuance costs related to a recognized debt liability be presented in the balance sheet as a direct deduction from the carrying amount of that debt liability, consistent with debt discounts. The unamortized value of deferred financing costs associated with our revolving credit facility were not affected by the ASU and continue to be presented as an asset on the Company’s consolidated balance sheets.

 

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Interest

The Company recorded $14.3 million and $30.4 million in interest expense for the three months ended March 31, 2015 and 2016, respectively.

The following table provides a summary of interest rates and interest expense for the three months ended March 31, 2015 and 2016:

 

     Three Months Ended March 31,  
     2015     2016  
     (dollars in thousands)  

Interest rate—LIBOR

     5.00%-7.75     6.00%-7.75

Interest rate—reference

     8.50     7.50%-8.50

Interest rate—Senior notes

     —         10.875

Non-refundable fee—unused facility

     0.50     0.50

Interest expense and service fees

   $ 13,976      $ 27,996   

Amortization of deferred financing fees

   $ 20      $ 911   

Amortization of original issue discounts

   $ —       $ 449   

Amortization of net present value of deferred consideration

   $ 138      $ 783   

Interest expense for capital lease obligations

   $ 98      $ 157   

Interest expense for deferred consideration promissory note

   $ 70      $ 70   

Other interest expense

   $ 19      $ 5   
  

 

 

   

 

 

 

Total interest expense

   $ 14,321      $ 30,371   
  

 

 

   

 

 

 

Debt Covenants

Senior Credit Facilities

The Senior Credit Facilities require that the Company complies with a financial covenant to maintain a maximum ratio of net first lien debt to EBITDA (as defined in the Company’s existing credit agreement).

The Senior Credit Facilities contain covenants that limit the Company’s ability to, among other things, incur additional debt or issue certain preferred shares; pay dividends on or make other distributions in respect of capital stock; make other restricted payments; make certain investments; sell or transfer certain assets; create liens on certain assets to secure debt; consolidate, merge, sell or otherwise dispose of all or substantially all of its assets; and enter into certain transactions with affiliates. Additionally, the Senior Credit Facilities require the Company to comply with certain negative covenants and specify certain events of default that could result in amounts becoming payable, in whole or in part, prior to their maturity dates. The Company was in compliance with all covenants at March 31, 2016.

With the exception of certain equity interests and other excluded assets under the terms of the Senior Credit Facilities, substantially all of the Company’s assets are pledged as collateral for the obligations under the Senior Credit Facilities.

Notes

The indenture with respect to the Notes contains covenants that limit the Company’s ability to, among other things, incur additional debt or issue certain preferred shares; pay dividends on or make other distributions in respect of capital stock; make other restricted payments; make certain investments; sell or transfer certain assets; create liens on certain assets to secure debt; consolidate, merge, sell or otherwise dispose of all or substantially all of its assets; and enter into certain transactions with affiliates. Upon a change of control as defined in the Indenture, the Company or EIG Investors must offer to repurchase the Notes at 101% of the aggregate principal amount thereof, plus accrued and unpaid interest, if any, up to, but not including, the repurchase date. These covenants are subject to a number of important limitations and exceptions.

The indenture also provides for events of default, which, if any of them occurs, may permit or, in certain circumstances, require the principal, premium, if any, interest and any other monetary obligations on all the then outstanding Notes to be due and payable immediately.

 

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10. Stockholders’ Equity

Voting Rights

All holders of common stock are entitled to one vote per share.

The following table presents the changes in total stockholders’ equity:

 

     Total
Stockholders’
Equity
 
     (in thousands)  

Balance, December 31, 2015

   $ 179,674   

Stock-based compensation

     18,388   

Stock option exercises

     593   

Foreign currency translation adjustment

     342   

Unrealized loss on derivative

     (1,511

Minority interest accretion

     (3,472

Investment in Constant Contact

     5,395   

Income tax from the exercise of stock options

     (16

Net income

     14,081   
  

 

 

 

Balance, March 31, 2016

   $ 213,474   
  

 

 

 

11. Stock-Based Compensation

2013 Stock Incentive Plan

The 2013 Stock Incentive Plan (the “2013 Plan”) of the Company became effective upon the closing of its IPO. The 2013 Plan provides for the grant of options, stock appreciation rights, restricted stock, restricted stock units and other stock-based awards to employees, officers, directors, consultants and advisors of the Company. Under the 2013 Plan, the Company may issue up to 18,000,000 shares of the Company’s common stock. At March 31, 2016, 4,618,955 shares were available for grant under the 2013 Plan.

2011 Stock Incentive Plan

As of February 9, 2016, the effective date of the acquisition of Constant Contact, the Company assumed and converted certain outstanding equity awards granted by Constant Contact under the Constant Contact 2011 Stock Incentive Plan (“2011 Plan”) prior to the effective date of the acquisition (the “Assumed Awards”) into corresponding equity awards with respect to shares of the Company’s common stock. In addition, the Company assumed certain shares of Constant Contact common stock, par value $0.01 per share, available for issuance under the 2011 Plan, which will be available for future issuance under the 2011 Plan in satisfaction of the vesting, exercise or other settlement of options and other equity awards that may be granted by the Company following the effective date of the acquisition of Constant Contact in reliance on the prior approval of the 2011 Plan by the stockholders of Constant Contact. The Company assumed 2,143,987 stock options and 2,202,846 restricted stock units with respect to the Assumed Awards. There are 14,346,830 shares of Endurance International Group Holdings, Inc. common stock reserved for issuance under the 2011 Plan. At March 31, 2016, 10,320,757 shares were available for grant under the 2011 Plan.

The Company calculated the fair value of the exchanged awards in accordance with the provisions of ASC 718 as of the acquisition date. The Company allocated the fair value of these awards between the pre-acquisition and post-acquisition stock-based compensation expense. The Company determined that the value of the awards under this plan was $22.3 million, of which $5.4 million was attributed to the pre-acquisition period and recognized as part of the purchase consideration for Constant Contact. The balance of $16.9 million has been attributed to the post-acquisition period. Of the $16.9 million, the Company recognized approximately $3.7 million during the three months ended March 31, 2016.

 

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The following table presents total stock-based compensation expense recorded in the consolidated statement of operations and comprehensive income for all 2012 restricted stock awards and units issued prior to the IPO, all awards granted under the Company’s 2013 Plan and the 2011 Plan:

 

     Three Months Ended
March 31,
 
     2015      2016  
     (in thousands)  

Cost of revenue

   $ 113       $ 770   

Sales and marketing

     390         1,722   

Engineering and development

     217         764   

General and administrative

     3,251         15,132   
  

 

 

    

 

 

 

Total stock-based compensation expense

   $ 3,971       $ 18,388   
  

 

 

    

 

 

 

2012 Restricted Stock Awards

The following table provides a summary of the 2012 restricted stock awards activity for the three months ended March 31, 2016 for restricted stock awards that were granted prior to the IPO, including the non-vested balance as of March 31, 2016:

 

     2012 Restricted Stock Awards  

Non-vested at December 31, 2015

     46,645   

Vested

     (27,818

Canceled

     —    
  

 

 

 

Non-vested at March 31, 2016

     18,827   
  

 

 

 

The following table provides a summary of the activity for the three months ended March 31, 2016 for the restricted stock units that were granted in connection with the IPO, including the non-vested balance as of March 31, 2016:

 

     Restricted Stock Units      Weighted
Average
Grant Date
Fair Value
 

Non-vested at December 31, 2015

     22,158       $ 12.00   

Vested and unissued

     (22,158    $ 12.00   
  

 

 

    

Non-vested at March 31, 2016

     —          —    
  

 

 

    

2013 Stock Incentive Plan

The following table provides a summary of the Company’s stock options as of March 31, 2016 and the stock option activity for all stock options granted under the 2013 Plan during the three months ended March 31, 2016:

 

     Stock
Options
    Weighted-
Average
Exercise
Price
     Weighted-
Average
Remaining
Contractual Term
(In Years)
     Aggregate
Intrinsic
Value(3)
(in thousands)
 

Outstanding at December 31, 2015

     6,950,858      $ 13.83         

Granted

     —       $ —          

Exercised

     —       $ —          

Forfeited

     (57,440   $ 17.41         

Expired

     (231,799   $ 12.68         
  

 

 

         

Outstanding at March 31, 2016

     6,661,619      $ 13.84         8.1       $ —    
  

 

 

         

Exercisable at March 31, 2016

     2,832,742      $ 12.07         7.6       $ —    

Expected to vest after March 31, 2016 (1)

     3,776,172      $ 15.12         8.4       $ —    

Exercisable as of March 31, 2016 and expected to vest thereafter (2)

     6,608,914      $ 13.81         8.1       $ —    

 

(1) This represents the number of unvested options outstanding as of March 31, 2016 that are expected to vest in the future, which have been reduced using an estimated forfeiture rate.

 

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(2) This represents the number of vested options as of March 31, 2016 plus the number of unvested options outstanding as of March 31, 2016 that are expected to vest in the future, which have been reduced using an estimated forfeiture rate.
(3) The aggregate intrinsic value was calculated based on the positive difference, if any, between the estimated fair value of the Company’s common stock on March 31, 2016 of $10.53 per share, or the date of exercise, as appropriate, and the exercise price of the underlying options.

Unless otherwise determined by the Company’s board of directors, restricted stock units granted under the 2013 Plan generally vest monthly over a four-year period. The following table provides a summary of the Company’s restricted stock unit activity for the 2013 Plan during the three months ended March 31, 2016:

 

     Restricted Stock Units      Weighted
Average
Grant Date
Fair Value
 

Non-vested at December 31, 2015

     220,765       $ 12.00   

Vested and unissued

     (30,099    $ 12.00   
  

 

 

    

Non-vested at March 31, 2016

     190,666       $ 12.00   
  

 

 

    

Unless otherwise determined by the Company’s board of directors, restricted stock awards granted under the 2013 Plan generally vest annually over a four-year period. Performance-based restricted stock awards are earned based on the achievement of performance criteria established by the Company’s Compensation Committee and Board of Directors. The following table provides a summary of the Company’s restricted stock award activity for the 2013 Plan during the three months ended March 31, 2016:

 

     Restricted Stock
Awards
     Weighted
Average
Grant Date
Fair Value
 

Non-vested at December 31, 2015

     4,849,290       $ 15.24   

Granted

     743,514       $ 8.74   

Vested

     (92,368    $ 12.03   

Canceled

     (24,522    $ 17.00   
  

 

 

    

Non-vested at March 31, 2016

     5,475,914       $ 14.40   
  

 

 

    

 

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2015 Performance Based Award

The performance-based award granted to the Company’s chief executive officer during 2015 provides an opportunity for the participant to earn a fully vested right to up to 3,693,754 shares of the Company’s common stock (the “Award Shares”) over a three-year period beginning July 1, 2015 and ending on June 30, 2018 (the “Performance Period”). Award Shares may be earned based on the Company achieving pre-established, threshold, target and maximum performance metrics.

Award Shares may be earned during each calendar quarter during the Performance Period (each, a “Performance Quarter”) if the Company achieves a threshold, target or maximum level of the performance metric for the Performance Quarter. If the performance metric is less than the threshold level for a Performance Quarter, no Award Shares will be earned during the Performance Quarter. Award Shares that were not earned during a Performance Quarter may be earned later during the then current twelve-month period from July 1 st to June 30 th during the Performance Period (each, a “Performance Year”) at a threshold, target or maximum level of the performance metric for the Performance Year. Approximately 195,881 Award Shares were earned for the Performance Quarter ending March 31, 2016 because the target performance level for the performance metric was met.

This performance-based award is evaluated quarterly to determine the probability of its vesting and determine the amount of stock-based compensation to be recognized. During the three months ended March 31, 2016, the Company recognized $7.9 million of stock-based compensation expense related to this performance-based award. Of the $7.9 million, $3.3 million was additional stock-based compensation expense recognized during the three months ended March 31, 2016, due to changes in assumptions regarding the vesting of the award.

2016 Performance Based Awards

On February 16, 2016, the Compensation Committee of the Board of Directors of the Company approved the grant of performance-based restricted stock awards to the Company’s Chief Financial Officer (“CFO”), Chief Operating Officer (“COO”) and Chief Administrative Officer (“CAO”).

The CFO performance-based restricted stock award provides an opportunity to earn a fully vested right to up to 223,214 shares of the Company’s stock, with a target of 178,571 shares. The COO performance-based restricted stock award provides an opportunity to earn a fully vested right to up to 260,416 shares of the Company’s stock, with a target of 208,333 shares. The CAO performance-based restricted stock award provides an opportunity to earn a fully vested right to up to 148,810 shares of the Company’s stock, with a target of 119,048 shares.

The shares subject to the performance-based restricted stock awards will be earned based on the Company’s Constant Contact brand achieving a pre-established level of adjusted revenue (weighted 50%), adjusted EBITDA (weighted 25%) and adjusted free cash flow (weighted 25%), in each case for the twelve months ending December 31, 2016, assuming for this purpose that the Company’s acquisition of Constant Contact had taken place on January 1, 2016 (the “Performance Metric”). Adjusted free cash flow is defined for this purpose as adjusted EBITDA, less (i) cash paid for restructuring charges and capital expenditures, plus or minus (ii) the change in working capital.

Each executive will earn from 0% to 125% of the target number of shares subject to their performance-based restricted stock award based on the level of achievement of the Performance Metric. Shares that are earned based on the achievement of the Performance Metric will vest on March 31, 2017 and any unearned shares as of that date will be forfeited.

These performance-based awards are evaluated quarterly to determine the probability of vesting and determine the amount of stock-based compensation to be recognized. During the three months ended March 31, 2016, the Company recognized $0.6 million of stock-based compensation expense related to these performance-based awards.

 

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2011 Stock Incentive Plan

The following table provides a summary of the Company’s stock options as of March 31, 2016 and the stock option activity for all stock options granted under the 2011 Plan during the three months ended March 31, 2016:

 

    Stock
Options
    Weighted-
Average
Exercise
Price
    Weighted-
Average
Remaining
Contractual Term
(In Years)
    Aggregate
Intrinsic
Value(3)
(in thousands)
 

Outstanding at December 31, 2015

    —       $ —        

Granted/ Exchanged

    2,143,987      $ 7.28       

Exercised

    (89,572   $ 6.60       

Forfeited

    (240,559   $ 7.18       
 

 

 

       

Outstanding at March 31, 2016

    1,813,856      $ 7.33        5.2      $ 5,809   
 

 

 

       

Exercisable at March 31, 2016

    351,727      $ 8.90        5.3      $ 572   

Expected to vest after March 31, 2016 (1)

    1,462,129      $ 6.95        5.1      $ 5,237   

Exercisable as of March 31, 2016 and expected to vest thereafter (2)

    1,813,856      $ 7.33        5.2      $ 5,809   

 

(1) This represents the number of unvested options outstanding as of March 31, 2016 that are expected to vest in the future, which have been reduced using an estimated forfeiture rate.
(2) This represents the number of vested options as of March 31, 2016 plus the number of unvested options outstanding as of March 31, 2016 that are expected to vest in the future, which have been reduced using an estimated forfeiture rate.
(3) The aggregate intrinsic value was calculated based on the positive difference, if any, between the estimated fair value of the Company’s common stock on March 31, 2016 of $10.53 per share, or the date of exercise, as appropriate, and the exercise price of the underlying options.

Unless otherwise determined by the Company’s board of directors, restricted stock units granted under the 2011 Plan generally vest annually over a four-year period. The following table provides a summary of the Company’s restricted stock unit activity for the 2011 Plan during the three months ended March 31, 2016:

 

    Restricted Stock
Units
    Weighted
Average
Grant Date
Fair Value
 

Non-vested at December 31, 2015

    —       $ —    

Granted/ Exchanged

    2,202,846      $ 7.69   

Vested

    (345,544   $ 7.69   

Canceled

    (80,201   $ 7.69   
 

 

 

   

Non-vested at March 31, 2016

    1,777,101      $ 7.69   
 

 

 

   

12. Redeemable Non-controlling Interest

In connection with a 2014 equity investment in WZ UK Ltd., on January 6, 2016, the Company exercised its option to increase its stake in WZ UK Ltd from 49% to 57.5%, where the Company acquired a controlling interest, in exchange for a payment of approximately $2.1 million to the other shareholders of WZ UK Ltd. The agreement related to the transaction provides for a put option for the then NCI shareholders to put the remaining equity interest to the Company within pre-specified put periods. As the NCI is subject to a put option that is outside the control of the Company, it is deemed a redeemable non-controlling interest and is not recorded in permanent equity, and is presented as mezzanine redeemable non-controlling interest on the consolidated balance sheet, and is subject to the guidance of the Securities and Exchange Commission (“SEC”) under ASC 480-10-S99, Accounting for Redeemable Equity Securities. The difference between the $10.8 million fair value of the redeemable NCI and the $30.0 million value that is expected to be paid upon exercise of the put option is being accreted over the period commencing January 6, 2016 and up to the first put option period, which commences on the 24-month anniversary of the acquisition date, August 14, 2016. Adjustments to the carrying amount of the redeemable non-controlling interest are charged to additional paid-in capital.

During the three months ended March 31, 2016, the Company obtained a controlling interest in Resume Labs Ltd. for $1.5 million and Pseudio Limited for $1.5 million. The agreements related to these transactions provide for put options for the NCI shareholders of each company to put the remaining equity interest to the Company within pre-specified put periods. As the NCI for these entities are subject to put options that are outside the control of the Company, they are deemed redeemable non-controlling interests and are also not recorded in permanent equity, and are presented as part of the mezzanine redeemable non-controlling interest on the consolidated balance sheet. As of March 31, 2016, the Company has not determined that it is probable that the minority interest put option for each company will be triggered. Therefore, the Company is not accreting to a minimum fair value as of March 31, 2016.

 

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Non-controlling interest arising from the application of the consolidation rules is classified within total stockholders’ equity with any adjustments charged to net loss attributable to non-controlling interest in a consolidated subsidiary in the consolidated statement of operations and comprehensive income.

13. Income Taxes

The Company files income tax returns in the United States for federal income taxes and in various state jurisdictions. The Company also files in several foreign jurisdictions. In the normal course of business, the Company is subject to examination by tax authorities throughout the world. Since the Company is in a loss carry-forward position, the Company is generally subject to U.S. federal and state income tax examinations by tax authorities for all years for which a loss carry-forward is utilized. The Company is currently under audit in India for fiscal year ended March 31, 2015 and Israel for the fiscal years ended December 31, 2012, 2013 and 2014.

The statutes of limitations in the Company’s other tax jurisdictions remains open for various periods between 2011 and the present. However, carryforward attributes from prior years may still be adjusted upon examination by tax authorities if they are used in an open period. The Company does not expect material changes as a result of the audits.

The Company recognizes, in its consolidated financial statements, the effect of a tax position when it is more likely than not, based on the technical merits, that the position will be sustained upon examination. The Company has no unrecognized tax positions at December 31, 2015 and March 31, 2016 that would affect its effective tax rate. The Company does not expect a significant change in the liability for unrecognized tax benefits in the next 12 months.

The Company regularly assesses its ability to realize its deferred tax assets. Assessing the realization of deferred tax assets requires significant management judgment. In determining whether its deferred tax assets are more likely than not realizable, the Company evaluated all available positive and negative evidence, and weighted the evidence based on its objectivity. Evidence the Company considered included:

 

    Net Operating Losses (“NOL”) incurred from the Company’s inception to March 31, 2016;

 

    Expiration of various federal and state tax attributes;

 

    Reversals of existing temporary differences;

 

    Composition and cumulative amounts of existing temporary differences; and

 

    Forecasted profit before tax.

Prior to the acquisition of Constant Contact, the Company maintained a valuation allowance against certain deferred tax assets. The acquisition of Constant Contacted resulted in a significant increase in deferred tax liabilities, which far exceeded pre-acquisition deferred tax assets. The Company scheduled out the reversal of deferred tax assets and liabilities as of March 31, 2016, and determined that these reversals would be sufficient to realize most domestic deferred tax assets. The deferred tax liabilities supporting the realizability of these deferred tax assets in the acquisition will reverse in the same period, are in the same jurisdiction and are of the same character as the temporary differences that gave rise to these deferred tax assets. As a result, the Company recorded a tax benefit of $73.6 million to reverse valuation allowances during the three months ended March 31, 2016.

For the three months ended March 31, 2015 and 2016, the Company recognized tax expense of $1.0 million and a tax benefit of $99.9 million, respectively, in the consolidated statements of operations and comprehensive income. The income tax benefit for the three months ended March 31, 2016 was primarily attributable to a $73.6 million reversal of the valuation allowance, a federal and state deferred tax benefit of $29.0 million, which includes the identification and recognition of $7.3 million of U.S. federal research and development tax credits, and a foreign deferred tax benefit of $0.7 million, partially offset by a provision for federal and state current income taxes of $2.2 million and foreign current tax expense of $1.1 million. The income tax expense for the three months ended March 31, 2015 is primarily attributable to a provision for foreign taxes of $0.4 million, federal and state current income taxes of $0.2 million, U.S. deferred income tax of $0.5 million related to the differences in the accounting treatment of goodwill under U.S. GAAP and the tax accounting for goodwill and foreign deferred tax expense of $0.2 million related to the increases of deferred liabilities, partially offset by a $0.3 million reduction of the valuation allowance.

 

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The provision for income taxes shown on the consolidated statements of operations and comprehensive income differs from amounts that would result from applying the statutory tax rates to income before taxes primarily because of state income taxes and certain expenses that were non-deductible, as well as the application of valuation allowances against U.S. and foreign assets.

As of December 31, 2015, the Company had NOL carry-forwards available to offset future U.S. federal taxable income of approximately $97.8 million and future state taxable income of approximately $111.2 million. These NOL carry-forwards expire on various dates through 2034. Approximately $1.6 million of the U.S. federal NOL carry-forwards and $0.7 million of the state NOL carry-forwards are from excess stock-based compensation, for which the benefit will be recorded to additional paid-in capital when recognized. As of December 31, 2015, the Company had NOL carry-forwards in foreign jurisdictions available to offset future foreign taxable income by approximately $27.4 million. The Company has loss carry-forwards in India totaling $2.9 million that expire in 2021. The Company also has loss carry-forwards in the United Kingdom, Israel and Singapore of $23.4 million, $0.9 million, and $0.2 million, respectively, which have an indefinite carry-forward period.

Utilization of the NOL carry-forwards may be subject to an annual limitation due to the ownership percentage change limitations under Section 382 of the Internal Revenue Code (“Section 382 limitation”). Ownership changes can limit the amount of net operating loss and other tax attributes that a company can use each year to offset future taxable income and taxes payable. In connection with a change in control in 2011 the Company was subject to Section 382 limitations of $77.1 million against the balance of NOL carry-forwards generated prior to the change in control in 2011. Through December 31, 2013, the Company accumulated the unused amount of Section 382 limitations in excess of the amount of NOL carry-forwards that were originally subject to limitation. Therefore, these unused NOL carry-forwards are available for future use to offset taxable income. The Company has completed an analysis of changes in its ownership from 2011, through its IPO, to December 31, 2013. The Company concluded that there was not a Section 382 ownership change during this period and therefore any NOLs generated through December 31, 2013, are not subject to any new Section 382 limitations on NOL carry-forwards. On November 20, 2014, the Company completed a follow-on offering of 13,000,000 shares of common stock. The underwriters also exercised their overallotment option to purchase an additional 1,950,000 shares of common stock from the selling stockholders. The Company performed an analysis of the impact of this offering and determined that no Section 382 change in ownership had occurred.

On March 11, 2015, the Company completed a follow-on offering of its common stock, in which selling stockholders sold 12,000,000 shares of common stock at a public offering price of $19.00 per share. The underwriter also exercised its overallotment option to purchase an additional 1,800,000 shares of common stock from the selling stockholders. The Company is currently completing an analysis of its ownership changes from March 11, 2015 through December 31, 2015, but does not believe the outcome of this analysis will result in an additional ownership change based on the information available at this time.

As of the Company’s acquisition of Constant Contact, Constant Contact had approximately $57.7 million and $31.9 million of federal and state NOLs, respectively, and approximately $10.6 million of U.S. federal research and development credits and $9.6 million of state credits.

All of the acquired tax attributes (NOLs and tax credits) from the transaction are subject to a Section 382 ownership change as a result of the transaction. Although an ownership change was triggered, the Company does not expect that the limitations placed on its NOLs and research and development tax credits will result in a restriction on their use or the expiration of its NOLs and research and development tax credit carryforwards. However, future equity transactions could further limit the utilization of these tax attributes.

As a result, all unused NOL carry-forwards at December 31, 2015 are available for future use to offset taxable income.

14. Severance and Other Exit Costs

In connection with acquisitions, the Company may evaluate its data center, sales and marketing, support and engineering operations and the general and administrative function in an effort to eliminate redundant costs. As a result, the Company may incur charges for employee severance, exiting facilities and restructuring data center commitments and other related costs.

2014 Restructuring Plan

During the year ended December 31, 2014, the Company implemented plans to further integrate and consolidate its data center, support and engineering operations, resulting in severance and facility exit costs. The severance charges were associated with eliminating approximately 90 positions across primarily support, engineering operations and sales and marketing. The Company incurred severance costs of $2.3 million in the year ended December 31, 2014 related to these restructuring activities. The employee-related charges associated with these restructurings were completed during the year ended December 31, 2014. As of March 31, 2016, the Company did not have any remaining accrued employee-severance related to these severance costs.

 

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The Company had incurred facility costs associated with closing offices in Redwood City, California and Englewood, Colorado. At the time of closing these offices, the Company had remaining lease obligations of approximately $3.0 million for these vacated facilities through March 31, 2018. The Company recorded a facilities charge for these future lease payments, less expected sublease income, of $2.1 million during the year ended December 31, 2014. During the three months ended March 31, 2016, the Company recorded an adjustment of $0.2 million relating to the lease agreement for the Englewood, Colorado facility.

The following table provides a summary of the activity for the three months ended March 31, 2016 related to the Company’s facilities exit costs accrual:

 

     Facilities  
     (in thousands)  

Balance at December 31, 2015

   $ 479   

Cash paid

     (236

Sublease income

     41   

Adjustments

     186   
  

 

 

 

Balance at March 31, 2016

   $ 470   
  

 

 

 

2015 Restructuring Plan

During the year ended December 31, 2015, the Company implemented plans to enhance operational efficiencies across the business, resulting in severance costs (the “2015 Restructuring Plan”). The severance charges were associated with eliminating approximately 67 positions across the business. The Company incurred severance costs of $2.1 million during the year ended December 31, 2015 related to the 2015 Restructuring Plan. The Company completed employee-related charges associated with the 2015 Restructuring Plans during the year ended December 31, 2015. The Company paid $0.6 million of severance costs during the three months ended March 31, 2016 and had a remaining accrued severance liability of $0.6 million as of March 31, 2016. The Company expects payments to related to the 2015 Restructuring Plan be completed during the year ended December 31, 2016. The following table provides a summary of the activity for the three months ended March 31, 2016 related to the Company’s 2015 Restructuring Plan severance accrual:

 

     2015 Plan
Employee Severance
 
     (in thousands)  

Balance at December 31, 2015

   $ 1,201   

Severance adjustments

     (15

Cash paid

     (623
  

 

 

 

Balance at March 31, 2016

   $ 563   
  

 

 

 

2016 Restructuring Plan

In connection with the Company’s acquisition of Constant Contact on February 9, 2016, during the three months ended March 31, 2016, the Company implemented plans to create operational efficiencies and synergies resulting in severance costs and facility exit costs (the “2016 Constant Contact Restructuring Plan”).

The severance charges were associated with eliminating approximately 180 positions across the business. The Company incurred severance costs of $8.0 million during the three months ended March 31, 2016 related to the 2016 Constant Contact Restructuring Plan. The Company expects to complete employee-related charges associated with the 2016 Constant Contact Restructuring Plan during the year ended December 31, 2016. The Company paid $1.5 million of severance costs during the three months ended March 31, 2016 and had a remaining accrued severance liability of $6.5 million as of March 31, 2016. The Company expects payments related to the 2016 Constant Contact Restructuring Plan to be completed during the year ended December 31, 2016.

 

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The following table provides a summary of the activity for the three months ended March 31, 2016 related to the Company’s 2016 Constant Contact Restructuring Plan severance accrual:

 

     2016 Constant
Contact Plan
Employee Severance
 
     (in thousands)  

Balance at December 31, 2015

   $ —    

Severance charges

     8,015   

Cash paid

     (1,470
  

 

 

 

Balance at March 31, 2016

   $ 6,545   
  

 

 

 

The Company’s 2016 Constant Contact Restructuring Plan includes a plan to close offices in San Francisco, California, Delray Beach, Florida, New York, New York and the United Kingdom. The Company is also closing a portion of the Constant Contact offices in Waltham, Massachusetts. During the three months ended March 31, 2016, the Company recorded a facilities charge for future lease payments of $7.6 million, less expected sublease income of $4.2 million.

The following table provides a summary of the activity for the three months ended March 31, 2016 related to the Company’s 2016 Constant Contact Restructuring Plan facilities exit costs accrual:

 

     Facilities  
     (in thousands)  

Balance at December 31, 2015

   $ —    

Facilities exit charges, net of estimated sublease income

     3,416   

Cash paid

     (147
  

 

 

 

Balance at March 31, 2016

   $ 3,269   
  

 

 

 

The following table presents restructuring charges recorded in the consolidated statement of operations and comprehensive income for the periods presented:

 

     For the Three Months Ended
March 31,
 
     2015      2016  
     (in thousands)  

Cost of revenue

   $ (49    $ 3,279   

Sales and marketing

     (14      3,901   

Engineering and development

     (67      2,018   

General and administrative

     40         2,218   
  

 

 

    

 

 

 

Total restructuring charges

   $ (90    $ 11,416   
  

 

 

    

 

 

 

15. Commitments and Contingencies

From time to time, the Company is involved in legal proceedings or subject to claims arising in the ordinary course of its business. The Company is not presently involved in any such legal proceeding or subject to any such claim that, in the opinion of its management would have a material adverse effect on its business, operating results or financial condition. However, the results of such legal proceedings or claims cannot be predicted with certainty, and regardless of the outcome, can have an adverse impact on the Company because of defense and settlement costs, diversion of management resources and other factors. Neither the ultimate outcome of the matters listed below nor an estimate of any probable losses or any reasonably possible losses can be assessed at this time.

On May 4, 2015, Christopher Machado, a purported holder of the Company’s common stock, filed a civil action in the United States District Court for the District of Massachusetts against the Company and its chief executive officer and former chief financial officer, Machado v. Endurance International Group Holdings, Inc., et al, Civil Action No. 1:15-cv-11775-GAO. In a second amended complaint, filed on March 18, 2016, the plaintiff alleged claims for violations of Section 10(b) and 20(a) of the Exchange Act, on behalf of a purported class of purchasers of the Company’s securities between February 25, 2014 and February 29, 2016. Those claims challenged as false or misleading certain of the Company’s disclosures about its total number of subscribers, average revenue per subscriber, the number of customers paying over $500 per year for the Company’s products and services, the average number of products sold per subscriber, and customer churn. The plaintiff seeks, on behalf of himself and the purported class, compensatory

 

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damages and his costs and expenses of litigation. The plaintiff has recently been given leave to file a second amended complaint, which will supersede the current complaint. The Company and the individual defendants intend to deny any liability or wrongdoing and to vigorously defend all claims asserted. The Company cannot, however, make any assurances as to the outcome of this proceeding.

The Company received a subpoena dated December 10, 2015 from the Boston Regional Office of the SEC, requiring the production of certain documents, including, among other things, documents related to its financial reporting, including operating and non-GAAP metrics, refund, sales and marketing practices and transactions with related parties. The Company is fully cooperating with the SEC’s investigation, which is still in its preliminary stages. The Company can make no assurances as to the time or resources that will need to be devoted to this investigation or the final outcome, or the impact, if any, of this investigation on its business, financial condition, results of operations and cash flows.

Constant Contact

On October 30, 2015, the Company entered into a definitive agreement pursuant to which it agreed to acquire all of the outstanding shares of common stock of Constant Contact. The acquisition closed on February 9, 2016. Constant Contact contingencies are noted below.

On December 10, 2015, Constant Contact received a subpoena from the Boston Regional Office of the SEC, requiring the production of documents pertaining to Constant Contact’s sales, marketing, and customer retention practices, and periodic public disclosure of financial and operating metrics. The Company is fully cooperating with the SEC’s investigation. The Company can make no assurances as to the time or resources that will need to be devoted to this investigation or its final outcome, or the impact, if any, of this investigation or any related legal or regulatory proceedings on the Company’s business, financial condition, results of operations and cash flows.

On August 7, 2015, a purported class action lawsuit, William McGee v. Constant Contact, Inc., et al, was filed in the United States District Court for the District of Massachusetts against Constant Contact and two of its former officers. The lawsuit asserts claims under Sections 10(b) and 20(a) of the Exchange Act, and is premised on allegedly false and/or misleading statements, and non-disclosure of material facts, regarding Constant Contact’s business, operations, prospects and performance during the proposed class period of October 23, 2014 to July 23, 2015. This litigation is in its very early stages. The Company and the individual defendants intend to vigorously defend all claims asserted. The Company cannot, however, make any assurances as to the outcome of this proceeding.

In September 2012, RPost Holdings, Inc., RPost Communications Limited and RMail Limited, or collectively, RPost, filed a complaint in the United States District Court for the Eastern District of Texas that named Constant Contact as a defendant in a lawsuit. The complaint alleged that certain elements of Constant Contact’s email marketing technology infringe five patents held by RPost. RPost seeks an award for damages in an unspecified amount and injunctive relief. In February 2013, RPost amended its complaint to name five of Constant Contact’s marketing partners as defendants. Under Constant Contact’s contractual agreements with these marketing partners, it is obligated to indemnify them for claims related to patent infringement. Constant Contact filed a motion to sever and stay the claims against its partners and multiple motions to dismiss the claims against it. In January 2014, the case was stayed pending the resolution of certain state court and bankruptcy actions involving RPost, to which Constant Contact is not a party. The stay was extended by agreement of the parties in December 2014. This litigation is in its very early stages. The Company believes it has meritorious defenses to any claim of infringement and intends to defend against the lawsuit vigorously.

On December 11, 2015, a putative class action lawsuit relating to the Constant Contact acquisition, captioned Irfan Chawdry, Individually and On Behalf of All Others Similarly Situated v. Gail Goodman, et al. Case No. 11797, or the Chawdry Complaint, and on December 21, 2015, a putative class action lawsuit relating to the acquisition captioned David V. Myers, Individually and On Behalf of All Others Similarly Situated v. Gail Goodman, et al. Case No. 11828, or the Myers Complaint (together with the Chawdry Complaint, the Complaints) filed in the Court of Chancery of the State of Delaware naming Constant Contact, each of Constant Contact’s directors, Endurance and Paintbrush Acquisition Corporation as defendants. The Complaints generally allege, among other things, that in connection with the acquisition the directors of Constant Contact breached their fiduciary duties owed to the stockholders of Constant Contact by agreeing to sell Constant Contact for purportedly inadequate consideration, engaging in a flawed sales process, omitting material information necessary for stockholders to make an informed vote, and agreeing to a number of purportedly preclusive deal protection devices. The Complaints seek, among other things, to rescind the acquisition, as well as award of plaintiffs’ attorneys’ fees and costs in the action. The defendants have not yet answered or otherwise responded to either of these Complaints. The defendants believe the claims asserted in the Complaints are without merit and intend to defend against these lawsuits vigorously.

 

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16. Related Party Transactions

The Company has various agreements in place with related parties. Below are details of related party transactions that occurred during the three months ended March 31, 2015 and 2016.

Tregaron :

The Company has contracts with Tregaron India Holdings, LLC and its affiliates, including Diya Systems (Mangalore) Private Limited, Glowtouch Technologies Pvt. Ltd. and Touchweb Designs, LLC (collectively, “Tregaron”), for outsourced services, including email- and chat-based customer and technical support, network monitoring, engineering and development support and web design and web building services. These entities are owned directly or indirectly by family members of the Company’s chief executive officer, who is also a director and stockholder of the Company.

During 2013 the Company expanded the services provided by Tregaron under the agreements to include support of a newly formed entity in India related to our acquisition of HostGator India.

The following table presents the amounts of related party transactions recorded in the consolidated statements of operations and comprehensive income for the periods presented relating to services provided by Tregaron and its affiliates under these agreements:

 

     Three Months Ended March 31,  
     2015      2016  
     (in thousands)  

Cost of revenue

   $ 2,400       $ 3,100   

Sales and marketing

     100         100   

Engineering and development

     400         300   

General and administrative

     100         100   
  

 

 

    

 

 

 

Total related party transaction expense

   $ 3,000       $ 3,600   
  

 

 

    

 

 

 

As of December 31, 2015, approximately $1.9 million was included in accounts payable and accrued expense relating to services provided by Tregaron. As of March 31, 2016, approximately $1.7 million was included in accounts payable and accrued expense relating to services provided by Tregaron.

Innovative Business Services, LLC:

The Company also has agreements with Innovative Business Services, LLC (“IBS”), which provides multi-layered third-party security applications that are sold by the Company. IBS is indirectly majority owned by the Company’s chief executive officer and a director of the Company, each of whom are also stockholders of the Company. During the year ended December 31, 2014, the Company’s principal agreement with this entity was amended which resulted in the accounting treatment of expenses being recorded against revenue.

The Company inadvertently excluded the revenue related to the expanded relationship with IBS from related party disclosures the three months ended March 31, 2015. The following table includes the revised amount of related party transactions recorded in the consolidated statements of operations and comprehensive income for the three months March 31, 2015 relating to services provided by IBS under these agreements:

 

     Three Months Ended March 31,  
     As Reported      As Revised         
     2015      2015      2016  
     (in thousands)  

Revenue

   $ —        $ (150    $ (600

Revenue (contra)

     1,800         1,800         2,100   
  

 

 

    

 

 

    

 

 

 

Total related party transaction impact to revenue

   $ 1,800       $ 1,650       $ 1,500   
  

 

 

    

 

 

    

 

 

 

Cost of revenue

     200         200         200   
  

 

 

    

 

 

    

 

 

 

Total related party transaction expense, net

   $ 2,000       $ 1,850       $ 1,700   
  

 

 

    

 

 

    

 

 

 

 

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As of December 31, 2015 and March 31, 2016, approximately $0.2 million and $0.1 million, respectively, was included in prepaid expenses and other current assets relating to the Company’s agreements with IBS.

As of December 31, 2015 and March 31, 2016, approximately $1.1 million and $1.5 million, respectively was included in accounts payable and accrued expense relating to the Company’s agreements with IBS.

As of December 31, 2015 and March 31, 2016, approximately $0.3 million and $0.4 million, respectively, was included in accounts receivable relating to the Company’s agreements with IBS.

Goldman, Sachs & Co.

The Company entered into a three-year interest rate cap on December 9, 2015 with a subsidiary of Goldman, Sachs & Co. Goldman, Sachs & Co. is a significant shareholder of the Company. For more detail refer to Note 5 in the consolidated financial statements.

In connection with and concurrently with the acquisition of Constant Contact in February 2016, the Company entered into the $735.0 million incremental first lien term loan facility and the $165.0 million revolving credit facility, and EIG Investors Corp. issued Notes in the aggregate principal amount of $350.0 million. An affiliate of Goldman, Sachs & Co. provided loans in the aggregate principal amount of $312.4 million under the incremental first lien term loan facility and a commitment in the aggregate principal amount of $57.6 million under the revolving credit facility, and Goldman, Sachs & Co. acted as a book-running manager in the Company’s offering of the Notes and purchased approximately $148.8 million worth of the Notes. The foregoing financing arrangements were provided in accordance with a commitment letter the Company entered into with an affiliate of Goldman, Sachs & Co. and certain other investment banks in November 2015.

Goldman, Sachs & Co. also served as a financial advisor in connection with the acquisition of Constant Contact and in the three months ended March 31, 2016, the Company paid approximately $8.6 million to Goldman, Sachs & Co. in connection with these services.

17. Subsequent Events

On April 8, 2016, the Company made an investment of $5.0 million in Fortifico Limited for a 33% equity interest in Fortifico Limited.

 

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Item 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

You should read the following discussion of our financial condition and results of operations together with our consolidated financial statements and the related notes and other financial information included elsewhere in this Quarterly Report on Form 10-Q.

Forward-Looking Statements

This Quarterly Report on Form 10-Q contains forward-looking statements that involve risks and uncertainties. Our actual results could differ materially from those discussed in the forward-looking statements. The statements contained in this report that are not purely historical are forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act. Forward-looking statements are often identified by the use of words such as, but not limited to, “anticipate,” “believe,” “can,” “contemplate,” “continue;” “could,” “estimate,” “expect,” “intend,” “likely,” “may,” “might,” “plan,” “potential,” “predict,” “project,” “seek,” “should,” “strategy,” “target,” “will,” “would” and similar expressions or variations intended to identify forward-looking statements. These statements are based on the beliefs and assumptions of our management based on information currently available to management. Such forward-looking statements are subject to risks, uncertainties and other important factors that could cause actual results and the timing of certain events to differ materially from future results expressed or implied by such forward-looking statements. Factors that could cause or contribute to such differences include, but are not limited to, those identified below and those discussed in the section titled “Risk Factors” included under Part II, Item 1A below, among others. Furthermore, such forward-looking statements speak only as of the date of this report. Except as required by law, we undertake no obligation to update any forward-looking statements to reflect events or circumstances after the date of such statements.

Overview

We are a leading provider of cloud-based platform solutions designed to help small and medium-sized businesses, or SMBs, succeed online. Leveraging our proprietary technology platform, we serve approximately 5.4 million subscribers globally with a comprehensive and integrated suite of over 150 products and services that help SMBs get online, get found and grow their businesses. Historically, our products focused largely on web hosting and other basic web presence solutions such as domains, but over time we have expanded to offer security, site backup, search engine optimization (“SEO”) and search engine marketing (“SEM”), Google Adwords, mobile solutions, social media enablement, website analytics, email marketing and productivity and e-commerce tools, among others. More recently, we have launched additional products and services, including website builders, mobile site builders, cloud hosting solutions, premium domains, desktop security, cloud storage and virtual private network (“VPN”) solutions, both to satisfy existing subscriber needs and to expand the product gateways through which new subscribers initially reach us. During 2016, we plan to invest in marketing initiatives to drive growth in these areas. Some of these products and services are have lower than average prices relative to our other offerings, and their subscribers may at least initially have different retention or spending profiles than our hosting and web presence customers.

In February 2016, we acquired Constant Contact, Inc., or Constant Contact, a leading provider of online marketing tools that are designed for small organizations, for a total purchase price of approximately $1.1 billion. This acquisition allows us to provide a comprehensive suite of online marketing tools and end-to-end solutions for our subscribers.

In connection with the acquisition, we entered into a $735.0 million incremental first lien term loan facility and a new $165.0 million revolving credit facility (which replaced our existing $125.0 million revolving credit facility), and our wholly owned subsidiary EIG Investors Corp. issued $350.0 million aggregate principal amount of 10.875% senior notes due 2024. We refer to the incremental first lien term loan facility and new revolving credit facility, together with our previously existing first lien term loan facility, as the “Senior Credit Facilities,” and to the 10.875% senior notes due 2024 as the “Notes”.

Our revenue grew from $177.3 million for the three months ended March 31, 2015 to $237.1 million for the three months ended March 31, 2016. This growth in our revenue was driven by Constant Contact and other acquisitions that closed since March 31, 2015, as well as by increasing product offerings and subscribers. Net income attributable to Endurance International Group Holdings, Inc. grew from $0.9 million for the three months ended March 31, 2015 to $21.8 million for the three months ended March 31, 2016, primarily as a result of the tax benefit recorded in connection with the reversal of valuation allowances on our deferred tax assets, and increased operating income from the acquisition of Constant Contact. These increases were partially offset by transaction costs incurred to acquire Constant Contact, increased charges for stock-based compensation, larger interest expenses related to increased debt to acquire Constant Contact and increased marketing program spending to promote the sale of new products.

Recent Developments

Non-GAAP Financial Measures and Key Metrics

        In addition to our financial information presented in accordance with GAAP, we use certain “non-GAAP financial measures” described below to evaluate the operating and financial performance of our business, identify trends affecting our business, develop projections and make strategic business decisions. Generally, a non-GAAP financial measure is a numerical measure of a company’s operating performance or financial position that includes or excludes amounts that are included or excluded from the most directly comparable measure calculated and presented in accordance with GAAP. We monitor the non-GAAP financial measures described below, and we believe they are helpful to investors, because we believe they reflect the operating performance of our business, excluding some recurring and non-recurring expenses that are included in the most directly comparable measures calculated and presented in accordance with GAAP.

Our non-GAAP financial measures may not provide information that is directly comparable to that provided by other companies in our industry, as other companies in our industry may calculate non-GAAP financial results differently, particularly related to adjustments for integration and restructuring expenses. In addition, there are limitations in using non-GAAP financial measures because they are not prepared in accordance with GAAP, may be different from non-GAAP financial measures used by other companies and exclude expenses that may have a material impact on our reported financial results. Furthermore, interest expense, which is excluded from some of our non-GAAP measures, has been and will continue to be for the foreseeable future a significant recurring expense in our business. The presentation of non-GAAP financial information is not meant to be considered in isolation or as a substitute for the directly comparable financial measures prepared in accordance with GAAP. We urge you to review the reconciliations of our non-GAAP financial measures to the comparable GAAP financial measures included below, and not to rely on any single financial measure to evaluate our business.

 

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Key Metrics

We use a number of metrics, including the following key metrics, to evaluate the operating and financial performance of our business, identify trends affecting our business, develop projections and make strategic business decisions:

 

    total subscribers;

 

    average revenue per subscriber; and

 

    adjusted EBITDA.

The following table summarizes these non-GAAP financial measures and key metrics for the periods presented (in thousands, except average revenue per subscriber):

 

     Three Months Ended
March 31,
 
     2015      2016  

Financial and other metrics:

     

Total subscribers

     4,206         5,446   

Average subscribers for the period

     4,147         5,128   

Average revenue per subscriber

   $ 14.37       $ 16.44   

Adjusted EBITDA

   $ 67,570       $ 87,108   

Figures for the three months ended March 31, 2016 include the impact of Constant Contact since February 10, 2016, the day after the closing of the acquisition.

Total Subscribers

We define total subscribers as those that, as of the end of a period, are identified as subscribing directly to our products on a paid basis, excluding accounts that access our solutions via resellers or that purchase only domain names from us.

Historically, in calculating total subscribers, we included the number of end-of-period subscribers we added through business acquisitions as if those subscribers had subscribed with us since the beginning of the period presented. Since the first quarter of 2014, we have included subscribers we added through business acquisitions from the closing date of the relevant acquisition. Additionally, in the fourth quarter of 2014, we modified our definition of total subscribers to better reflect our expanding product mix by including paid subscribers to all of our subscription-based products (other than accounts that access our solutions via resellers or that purchase only domain names from us, rather than limiting the definition to paid subscribers to our hosted web presence solutions). Subscribers of more than one brand, and subscribers with more than one distinct billing relationship with us, are counted as separate subscribers. Total subscribers for a period reflects adjustments to add or subtract subscribers as we integrate acquisitions and/or are otherwise able to identify subscribers that meet, or do not meet, the definition of total subscribers.

Our total subscriber base increased from 4.206 million as of March 31, 2015 to 5.446 million as of March 31, 2016, an increase of approximately 1.24 million. Of this 1.24 million increase, approximately 809,000, or 65%, consisted of pre-acquisition subscriber bases of companies we acquired during the period, including approximately 566,000 subscribers acquired in our Constant Contact acquisition; approximately 67,000, or 5%, consisted of the adjustments described above; and approximately 364,000, or almost 30%, was attributable primarily to growth in our business and marketing efforts.

We expect our total subscriber base to continue to increase during the remainder of 2016. The extent of the increase will depend significantly on our level of marketing investments in the launch and promotion of new products and on how successful we are in attracting additional subscribers through these investments.

Average Revenue per Subscriber

Average Revenue Per Subscriber, or ARPS, is a non-GAAP financial measure that we calculate as the amount of revenue we recognize in a period, including marketing development funds and other revenue not received from subscribers, divided by the average of the number of total subscribers at the beginning of the period and at the end of the period, which we refer to as average subscribers for the period. Historically, we adjusted the amount of revenue to include the revenue generated from subscribers we added through business acquisitions as if those acquired subscribers had been our subscribers since the beginning of the period presented. Since the first quarter of 2014, we have included the revenue we add through business acquisitions from the date of the relevant acquisition. We believe ARPS is an indicator of our ability to optimize our mix of products and services and pricing and sell products and services to

 

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new and existing subscribers. As we on-board new subscribers, we typically on-board them at introductory prices, which negatively impacts ARPS. Furthermore, ARPS can be impacted by our acquisitions since the acquired subscribers may have higher or lower than average ARPS, and by adjustments to our total subscribers figure as described above.

In calculating ARPS, we increase revenue for the “purchase accounting adjustment” for acquisitions, which represents the reduction of post-acquisition revenues from the write-down of deferred revenue to fair value as of the acquisition date. Post-acquisition, deferred revenues are recognized at the reduced amount, until such time that the subscription is renewed. The impact generally normalizes within a year following the acquisition.

ARPS does not represent an exact measure of the average amount a subscriber spends with us each month, since our calculation of ARPS is impacted by revenues generated by non-subscribers. We have three principal sources of non-subscriber revenue: revenue attributable to customers who purchase only a domain name from us and do not purchase any other products, or domain-only customers, domain monetization revenue, and marketing development funds.

Domain monetization revenue consists principally of revenue from our BuyDomains brand, which provides premium domain name products and services, and, to a lesser extent, revenue from advertisements placed on unused domains (often referred to as “parked” pages) owned by us or our customers. Historically, the contribution of domain monetization activities to our revenue and adjusted revenue has been insignificant, but has increased beginning in 2014 primarily due to our acquisition of BuyDomains in September 2014. Our domain monetization revenue (and adjusted revenue) was $9.9 million and $8.6 million for the three months ended March 31, 2015 and 2016, respectively, and its exclusion from our ARPS calculation would have resulted in ARPS being $0.80 and $0.56 lower for those periods, respectively.

Marketing development funds are amounts that certain of our partners pay us to assist in and incentivize our marketing of their products. Our marketing development fund revenue (and adjusted revenue) was $2.3 million and $2.6 million for the three months ended March 31, 2015 and 2016, respectively, and its exclusion from our ARPS calculation would have resulted in ARPS being $0.19 and $0.17 lower for those periods, respectively.

Although we are able to measure the total amount of our revenue from domains, we are not able to further break down domain revenue into revenue from domain-only customers versus revenue from customers who purchase domains from us in addition to other products. Total adjusted revenue from domains was $30.5 million and $33.9 million for the three months ended March 31, 2015 and 2016, respectively.

The following tables reflect the reconciliation of adjusted revenue from domains to revenue from domains in accordance with GAAP:

 

     Three Months Ended March 31,  
     2015      2016  
     (in thousands)  

Revenue

   $ 29,763       $ 33,597   

Purchase accounting adjustment

     745         319   
  

 

 

    

 

 

 

Domain adjusted revenue

   $ 30,508       $ 33,916   
  

 

 

    

 

 

 

A portion of our revenue is generated from customers that resell our services. We refer to these customers as “resellers.” We consider these resellers (rather than the end user customers of these resellers) to be subscribers under our total subscribers definition, because we do not have a billing relationship with the end users and cannot determine the number of end users acquiring our services through a reseller. Additionally, a majority of our reseller revenues are for the purchase of domains and are included in the figures for adjusted revenue from domains shown above. Total adjusted revenue from resellers, excluding the portion that relates to domains, for both the three months ended March 31, 2015 and 2016 was $6.6 million.

The following tables reflect the reconciliation of adjusted revenue from resellers to revenue from resellers in accordance with GAAP:

 

     Three Months Ended March 31,  
     2015      2016  
     (in thousands)  

Revenue

   $ 6,605       $ 6,592   

Purchase accounting adjustment

     10         1   
  

 

 

    

 

 

 

Reseller adjusted revenue

   $ 6,615       $ 6,593   
  

 

 

    

 

 

 

 

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For the three months ended March 31, 2015 and 2016, ARPS increased from $14.37 to $16.44, respectively. This increase in ARPS was driven primarily by the acquisition of Constant Contact, which has higher ARPS than the rest of our business, offset by positive adjustments to our total subscriber figure during the period, a decrease in domain monetization revenues, subscribers coming to our platform through new gateway products, some of which are lower priced than our traditional web presence offerings, and by new subscribers joining us at low introductory prices for their first year with us. We expect ARPS to increase for the three months ending June 30, 2016 relative to the three months ended March 31, 2016 because it will reflect a full quarter of contribution from Constant Contact.

For the three months ended March 31, 2015 and 2016, ARPS excluding Constant Contact decreased from $14.37 to $13.87, respectively. This decrease in ARPS was driven by positive adjustments to our total subscriber figure during the period, a decrease in domain monetization revenues, subscribers coming to our platform through new gateway products, some of which are lower priced than our traditional web presence offerings, and by new subscribers joining us at low introductory prices for their first year with us. The calculation of ARPS with and without the impact of the Constant Contact acquisition is detailed below.

The following table reflects the reconciliation of ARPS to revenue calculated in accordance with GAAP.

 

     Three Months Ended March 31,  
     2015      2016  
     (in thousands, except ARPS data)  

Revenue

   $ 177,318       $ 237,113   

Purchase accounting adjustment

     1,395         15,843   
  

 

 

    

 

 

 

Adjusted revenue

   $ 178,713       $ 252,956   
  

 

 

    

 

 

 

Total subscribers

     4,206         5,446   

Average subscribers for the period

     4,147         5,128   

ARPS

   $ 14.37       $ 16.44   

Adjusted revenue attributable to Constant Contact

   $ —        $ 52,723   

Adjusted revenue excluding Constant Contact

   $ —        $ 200,233   

Total subscribers excluding Constant Contact

     4,206         4,883   

Average subscribers for the period excluding Constant Contact

     4,147         4,812   

ARPS excluding Constant Contact

   $ 14.37       $ 13.87   

Adjusted EBITDA

Adjusted EBITDA is a non-GAAP financial measure that we calculate as net income (loss) plus (i) changes in deferred revenue, depreciation, amortization, stock-based compensation expense, loss of unconsolidated entities, net loss on sale of assets, impairment of other intangibles, expenses related to integration of acquisitions and restructurings, transaction expenses and charges, including preparation for our IPO and any dividend-related payments accounted for as compensation expense, certain legal advisory expenses, interest expense and income tax expense, less (ii) earnings and gains related to unconsolidated entities, net gain on sale of assets and the impact of purchase accounting related to reduced fair value of deferred domain registration costs. We view adjusted EBITDA as a performance measure. Due to our history of acquisitions and financings, we have incurred and will continue to incur charges for integration, restructuring and transaction expenses that primarily relate to the process of acquiring another business and integrating that business into our support and/ or technical platforms. We believe that adjusting for these items is useful to investors in evaluating the post-integration performance of our company. We manage our business based on the cash collected from our subscribers and the cash required to acquire and service those subscribers. We believe highlighting cash collected and cash spent in a given period provides insight to an investor to gauge the overall performance of our business. Under GAAP, although subscription fees are paid in advance, we recognize the associated revenue over the subscription term, which does not fully reflect short-term trends in our operating results. In order to capture these trends and report our performance consistently with how we manage our business, we include the change in deferred revenue for the period in our calculation of adjusted EBITDA for that period.

 

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The following table reflects the reconciliation of adjusted EBITDA to net income calculated in accordance with GAAP for the periods presented:

 

     Three Months Ended
March 31,
 
     2015      2016  

Net income

   $ 884       $ 14,081   

Stock-based compensation

     3,971         18,388   

(Gain) loss on sale of assets

     40         (1

(Gain) loss of unconsolidated entities (1)

     1,108         (10,727

Amortization of other intangible assets

     21,298         29,874   

Amortization of deferred financing costs and original issue discounts

     20         1,360   

Impairment of other intangible assets

     —          1,437   

Changes in deferred revenue

     14,933         43,143   

Impact of reduced fair value of deferred domain registration costs

     (678      (291

Transaction expenses and charges

     1,523         31,120   

Integration and restructuring expenses

     1,418         15,037   

Legal advisory expenses (2)

     —          1,540   

Depreciation

     7,866         13,172   

Income tax expense (benefit)

     978         (99,902

Interest expense, net (excluding impact of amortization of deferred financing costs and original issue discounts)

     14,209         28,877   
  

 

 

    

 

 

 

Adjusted EBITDA

   $ 67,570       $ 87,108   
  

 

 

    

 

 

 

 

(1) The gain of unconsolidated entities is reported on a net basis for the three months ended March 31, 2016. The three months ended March 31, 2016 includes an $11.4 million gain on our investment in WZ UK Ltd. This gain was generated on January 6, 2016, when we increased our ownership stake in WZ UK Ltd. from 49% to 57.5%, which required a revaluation of our existing investment to its implied fair value. This $11.4 million gain was partially offset by our proportionate share of net losses from unconsolidated entities of $0.7 million.
(2) Consists of legal and related advisory expenses associated with securities class action litigation and related matters and the Securities and Exchange Commission, or SEC, subpoenas received by us and Constant Contact in December 2015.

The following table provides a reconciliation of interest expense, net included in the adjusted EBITDA table above to total other expense, net in our consolidated statements of operations and comprehensive income.

 

     Three Months Ended
March 31,
 
     2015      2016  
     (in thousands)  

Interest expense, net (excluding deferred financing costs and original issue discounts)

   $ 14,209       $ 28,877   

Amortization of deferred financing costs and original issue discounts

     20         1,360   

Other income

     —          (11,410
  

 

 

    

 

 

 

Total other expense, net in consolidated statements of operations and comprehensive income

   $ 14,229       $ 18,827   
  

 

 

    

 

 

 

Net income attributable to Endurance International Group Holdings, Inc. grew from $0.9 million for the three months ended March 31, 2015 to $21.8 million for the three months ended March 31, 2016, primarily as a result of the tax benefit recorded in connection with the reversal of the valuation allowances on our deferred tax assets, and increased operating income from the acquisition of Constant Contact. These increases were partially offset by transaction costs incurred to acquire Constant Contact, increased charges for stock-based compensation, larger interest expense related to increased debt to acquire Constant Contact and increased marketing program spending to promote the sale of new products.

 

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Adjusted EBITDA increased from $67.6 million for the three months ended March 31, 2015 to $87.1 million for the three months ended March 31, 2016. This increase in adjusted EBITDA was primarily a result of our acquisition of Constant Contact, partially offset by increased investments in marketing program spending to promote the sale of new products.

Components of Operating Results

Revenue

We generate revenue primarily from selling subscriptions for our cloud-based products and services. The subscriptions we offer are similar across all of our brands and are provided under contracts pursuant to which we have ongoing obligations to support the subscriber. These contracts are generally for service periods of up to 36 months and typically require payment in advance at the time of initiating the subscription for the entire subscription period. Typically, we also have arrangements in place to auto renew a subscription at the end of the subscription period. Due to factors such as introductory pricing, our renewal fees may be higher than our initial subscription. We sell more subscriptions with 12 month terms than with any other term length. We also earn revenue from the sale of domain name registrations, premium domains and non-term based products and services, such as certain online security products and professional technical services as well as through referral fees and commissions. We expect our revenue to increase in future periods as we expand our subscriber base, including through acquisitions, and the roll out of new subscriber acquisition channels such as web builders and mobile applications.

Cost of Revenue

Cost of revenue includes costs of operating our subscriber support organization, fees we pay to register domain names for our subscribers, costs of operating our data center infrastructure, such as technical personnel costs associated with monitoring and maintaining our network operations, fees we pay to third-party product and service providers, and merchant fees we pay as part of our billing processes. We also allocate to cost of revenue the depreciation and amortization related to these activities and the intangible assets we have acquired, as well as a portion of our overhead costs attributable to our employees engaged in subscriber support activities. In addition, cost of revenue includes stock-based compensation expense for employees engaged in support and network operations. We expect cost of revenue to increase in absolute dollars in future periods as we expand our subscriber base, increase our levels of subscriber support, expand our domain name business and add data center capacity. Cost of revenue may increase or decrease as a percentage of revenue in a given period, depending on our ability to manage our infrastructure costs, in particular with respect to data centers and support, the amount of third-party product and services that we sell and as a result of our amortization expense related to acquisitions.

Gross Profit

Gross profit is the difference between revenue and cost of revenue. Gross profit has fluctuated from period to period in large part as a result of revenue and cost of revenue adjustments from purchase accounting impacts related to acquisitions, as well as revenue and cost of revenue impacts from growth in our business. With respect to revenue, the application of purchase accounting requires us to record purchase accounting adjustments for acquired deferred revenue, which reduces the revenue recorded from acquisitions for a period of time after the acquisition. The impact generally normalizes within a year following the acquisition. With respect to cost of revenue, the application of purchase accounting requires us to defer domain registration costs, which reduces cost of revenue, and record long-lived assets at fair value, which increases cost of revenue through an increase in amortization expense over the estimated useful life of the long-lived assets. In addition, our revenue and our cost of revenue have increased in recent years as our subscriber base has expanded. For a new subscriber that we bring on to our platform, we typically recognize revenue over the term of the subscription, even though we collect the subscription fee at the initial billing. As a result, our gross profit may be affected by the prices we charge for our subscriptions, as well as by the number of new subscribers and the terms of their subscriptions. We expect our gross profit to increase in absolute dollars in future periods while our gross profit margin may increase or decrease.

Operating Expense

We classify our operating expense into three categories: sales and marketing, engineering and development, and general and administrative. Although our operating expenses have increased as a result of the Constant Contact acquisition, we are planning approximately $55.0 million of annual run rate cost reductions for the combined business, which we expect will be fully implemented by the end of 2016, with a majority of those cost reductions impacting operating expenses. In connection with these cost reduction plans, we have incurred approximately $11.4 million of restructuring charges through March 31, 2016 and expect to incur approximately $6.0 million to $8.0 million in additional restructuring charges, consisting of severance and facility exit related charges. We expect that a significant majority of the restructuring charges will be incurred in fiscal year 2016.

 

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Sales and Marketing

Sales and marketing expense primarily consists of costs associated with bounty payments to our network of online partners, SEM and SEO, general awareness and brand building activities, as well as the cost of employees engaged in sales and marketing activities. Sales and marketing expense also includes costs associated with sales of products as well as stock-based compensation expense for employees engaged in sales and marketing activities. Sales and marketing expense as a percentage of revenue may increase or decrease in a given period, depending on the cost of attracting new subscribers to our solutions, changes in how we invest in different subscriber acquisition channels, changes in how we approach search engine marketing and search engine optimization and the extent of general awareness and brand building activities we may undertake, as well as the efficiency of our sales and support personnel and our ability to sell more products and services to our subscribers and drive favorable returns on invested marketing dollars.

Engineering and Development

Engineering and development expense includes the cost of employees engaged in enhancing our technology platform and our systems, developing and expanding product and service offerings, and integrating technology capabilities from our acquisitions. Engineering and development expense includes stock-based compensation expense for employees engaged in engineering and development activities. Our engineering and development expense does not include costs of leasing and operating our data center infrastructure, such as technical personnel costs associated with monitoring and maintaining our network operations and fees we pay to third-party product and service providers, which are included in cost of revenue.

General and Administrative

General and administrative expense includes the cost of employees engaged in corporate functions, such as finance, human resources, legal affairs and general management. General and administrative expense also includes all facility and related overhead costs not allocated to cost of revenue, as well as insurance premiums and professional service fees. General and administrative expense includes stock-based compensation expense for employees engaged in general and administrative activities.

Other Income (Expense)

Other income (expense) consists primarily of costs related to, and interest paid on, our indebtedness. We include the cash cost of interest payments and loan financing fees, the amortization of deferred financing costs and the amortization of the net present value adjustment which we may apply to some deferred consideration payments related to our acquisitions in our calculation of interest expense. Interest income consists primarily of interest income earned on our cash and cash equivalents balances. Our interest expense may increase in future periods if we continue to finance acquisitions through the issuance of debt. We expect our interest expense to increase in future periods as a result of the financing transactions we entered into in connection with our acquisition of Constant Contact. Other income (expense) also includes gains or losses recognized on investments in unconsolidated entities.

Income Tax Expense (Benefit)

We estimate our income taxes in accordance with the asset and liability method, under which deferred tax assets and liabilities are recognized based on temporary differences between the assets and liabilities in our consolidated financial statements and the financial statements that are prepared in accordance with tax regulations for the purpose of filing our income tax returns, using statutory tax rates. This methodology requires us to record a valuation allowance against net deferred tax assets if, based upon the available evidence, it is more likely than not that some or all of the deferred tax assets will not be realized.

Critical Accounting Policies and Estimates

We prepare our consolidated financial statements in accordance with U.S. GAAP. The preparation of our consolidated financial statements requires us to make estimates, judgments and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenue and expense during the reported periods. We base our estimates, judgments and assumptions on historical experience and on various other assumptions that we believe to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Our actual results may differ from the estimates, judgments and assumptions made by our management. To the extent that there are differences between our estimates, judgments and assumptions and our actual results, our future financial statement presentation, financial condition, results of operations and cash flows may be affected.

 

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We believe that our critical accounting policies and estimates are the assumptions and estimates associated with the following:

 

    revenue recognition,

 

    goodwill,

 

    long-lived assets,

 

    derivative instruments,

 

    depreciation and amortization,

 

    income taxes, and

 

    stock-based compensation arrangements.

There have been no material changes to our critical accounting policies since December 31, 2015. For further information on our critical accounting policies and estimates, see Note 2 to the consolidated financial statements appearing in Part I, Item 1 in this Quarterly Report on Form 10-Q and our Annual Report on Form 10-K filed with the Securities and Exchange Commission, or the SEC on February 29, 2016.

Results of Operations

The following tables set forth our results of operations for the periods presented. The period-to-period comparison of financial results is not necessarily indicative of future results.

 

     Three Months Ended
March 31,
 
     2015      2016  
     (in thousands)  

Revenue

   $ 177,318       $ 237,113   

Cost of revenue

     100,974         136,476   
  

 

 

    

 

 

 

Gross profit

     76,344         100,637   
  

 

 

    

 

 

 

Operating expense:

     

Sales and marketing

     35,044         79,294   

Engineering and development

     5,371         16,255   

General and administrative

     17,207         40,279   

Transaction expense

     1,523         31,120   
  

 

 

    

 

 

 

Total operating expense

     59,145         166,948   
  

 

 

    

 

 

 

Income (loss) from operations

     17,199         (66,311

Total other expense, net

     (14,229      (18,827
  

 

 

    

 

 

 

Income (loss) before income taxes and equity earnings of unconsolidated entities

     2,970         (85,138

Income tax expense

     978         (99,902
  

 

 

    

 

 

 

Income before equity earnings of unconsolidated entities

     1,992         14,764   
  

 

 

    

 

 

 

Equity loss of unconsolidated entities, net of tax

     1,108         683   
  

 

 

    

 

 

 

Net income

   $ 884       $ 14,081   
  

 

 

    

 

 

 

Net loss attributable to non-controlling interest

     —          (7,730
  

 

 

    

 

 

 

Net income attributable to Endurance International Group Holdings, Inc.

   $ 884       $ 21,811   
  

 

 

    

 

 

 

 

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Comparison of Three Months Ended March 31, 2015 and 2016

Revenue

 

     Three Months
Ended March 31,
     Change  
     2015      2016      Amount      %  
     (dollars in thousands)  

Revenue

   $ 177,318       $ 237,113       $ 59,795         34

Revenue increased by $59.8 million, or 34%, from $177.3 million for the three months ended March 31, 2015 to $237.1 million for the three months ended March 31, 2016. Of this increase, $50.1 million is attributable to revenues, including growth, from acquisitions of businesses that were not part of our business for the three months ended March 31, 2015, principally Constant Contact. The remaining balance of the increase, or $9.7 million, is attributable to the growth of our business.

Our revenues are generated primarily from our products and services delivered on a subscription basis, which include web hosting, domains, website builders, search engine marketing and other similar services. We also generate non-subscription revenues through domain monetization and marketing development funds. Non-subscription revenues decreased from $12.2 million, or 7% of total revenue for the three months ended March 31, 2015 to $11.2 million, or 5% of revenue for the three months ended March 31, 2016, due primarily to a decrease in domain monetization revenues.

Cost of Revenue

 

     Three Months Ended March 31,               
     2015     2016     Change  
     Amount      % of
Revenue
    Amount      % of
Revenue
    Amount      %  
     (dollars in thousands)  

Cost of revenue

   $ 100,974         57   $ 136,476         58   $ 35,502         35

Cost of revenue increased by $35.5 million, or 35%, from $101.0 million for the three months ended March 31, 2015 to $136.5 million for the three months ended March 31, 2016. Of this increase, $28.0 million was due to increases in cost of revenue attributable to Constant Contact, including amortization expense of $10.1 million. Of the remaining $7.5 million, domain registration costs increased by $2.5 million mainly due to increases in domain revenue. In addition, other smaller acquisitions in 2015 increased data center and support costs by $3.6 million.

Our cost of revenue contains a significant portion of non-cash expenses, in particular amortization expense for the intangible assets we have acquired through our acquisitions and the acquisition in December 2011 of a controlling interest in our company by investment funds and entities affiliated with Warburg Pincus and Goldman, Sachs & Co.. The following table sets forth the significant non-cash components of cost of revenue.

 

     Three Months Ended March 31,  
     2015      2016  
     (in thousands)  

Amortization expense

   $ 21,298       $ 29,874   

Depreciation expense

   $ 7,310       $ 11,068   

Stock-based compensation expense

   $ 113       $ 770   

Gross Profit

 

     Three Months Ended March 31,               
     2015     2016     Change  
     Amount      % of
Revenue
    Amount      % of
Revenue
    Amount      %  
     (dollars in thousands)  

Gross profit

   $ 76,344         43   $ 100,637         42   $ 24,293         32

Gross profit increased by $24.3 million, or 32%, from $76.3 million for the three months ended March 31, 2015 to $100.6 million for the three months ended March 31, 2016. Of this increase, $11.1 million was due to gross margin contribution attributable to Constant Contact. Of the remaining $13.2 million increase, $14.7 million is primarily attributable to increases in our subscriber base, including acquired subscribers, partially offset by a $1.5 million decrease in amortization expense related to acquisitions before

 

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January 1, 2016. Our gross profit as a percentage of revenue decreased by one percentage point from 43% for the three months ended March 31, 2015 to 42% for the three months ended March 31, 2016. This decrease was primarily attributable to higher amortization of intangible assets, which increased overall to 13% of revenue for the three months ended March 31, 2016 as compared to 12% for the three months ended March 31, 2015 and higher depreciation expense, which increased overall to 5% of revenue for the three months ended March 31, 2016 as compared to 4% for the three months ended March 31, 2015. Amortization of intangible assets and depreciation expense increased primarily due to the acquisition of Constant Contact.

The following table sets forth gross profit and the significant non-cash components of cost of revenue as a percentage of revenue:

 

     Three Months Ended March 31,  
     2015     2016  
     (dollars in thousands)  

Revenue

   $ 177,318      $ 237,113   

Gross profit

   $ 76,344      $ 100,637   

Gross profit % of revenue

     43     42

Amortization expense % of revenue

     12     13

Depreciation expense % of revenue

     4     5

Stock-based compensation expense % of revenue

     *        *   

 

* Less than 1%.

Operating Expense

 

     Three Months Ended March 31,               
     2015     2016     Change  
     Amount      % of
Revenue
    Amount      % of
Revenue
    Amount      %  
     (dollars in thousands)  

Sales and marketing

   $ 35,044         20   $ 79,294         33   $ 44,250         126

Engineering and development

     5,371         3     16,255         7     10,884         203

General and administrative

     17,207         10     40,279         17     23,072         134

Transaction expenses

     1,523         1     31,120         13     29,597         1,943
  

 

 

      

 

 

      

 

 

    

Total

   $ 59,145         33   $ 166,948         70   $ 107,803         182
  

 

 

      

 

 

      

 

 

    

Sales and Marketing. Sales and marketing expense increased by $44.3 million, or 126%, from $35.0 million for the three months ended March 31, 2015 to $79.3 million for the three months ended March 31, 2016. Of this increase, $20.6 million was due to increases in sales and marketing expense attributable to Constant Contact. The remaining increase of $23.7 million in sales and marketing expense was primarily attributable to $21.4 million of increased marketing program spending primarily aimed at the launches of new products. Marketing expense at the product launch tends to be higher and decrease gradually over the product life cycle. In addition, the increase included a $1.3 million increase in stock-based compensation expense. We expect sales and marketing expenses as a percentage of revenue during the remaining quarters of 2016 to continue to be higher than comparable periods in 2015, but lower than the first quarter of 2016.

Engineering and Development. Engineering and development expense increased by $10.9 million, or 203%, from $5.4 million for the three months ended March 31, 2015 to $16.3 million for the three months ended March 31, 2016. Of this increase, $8.0 million was due to increases in engineering and development expense attributable to Constant Contact. The remaining increase of $2.9 million was due to a write-off of acquired in-process research and development of $1.4 million related to our acquisition of Webzai in 2014 as we abandoned certain research and development projects in favor of other projects, and a $1.1 million increase in compensation and benefits.

General and Administrative. General and administrative expense increased by $23.1 million, or 134%, from $17.2 million for the three months ended March 31, 2015 to $40.3 million for the three months ended March 31, 2016. Of this increase, $8.2 million was due to increases in general and administrative expense attributable to Constant Contact. The remaining period-over-period increase of $14.9 million was primarily due to a $11.9 million increase in stock-based compensation expense, of which $7.9 million is related to the grant of a performance-based restricted stock award to our chief executive officer. In addition, the increase in general and administrative expense includes $1.5 million of additional legal advisory expense related primarily to securities class action litigation and related matters and the SEC subpoenas received by us and Constant Contact in December 2015.

 

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Transaction Expenses. Transaction expenses increased by $29.6 million, or 1,943%, from $1.5 million for the three months ended March 31, 2015 to $31.1 million for the three months ended March 31, 2016. The period-over-period increase was primarily attributable to acquisition costs incurred in connection with our acquisition of Constant Contact. The $31.1 million in transaction expenses included a $16.8 million charge related to the acceleration of the vesting of certain Constant Contact equity awards, $10.8 million of advisor fees and $3.5 million of legal fees.

Other Income (Expense), Net

 

     Three Months Ended
March 31,
     Change  
     2015      2016      Amount      %  
     (dollars in thousands)  

Other income (expense), net

   $ (14,229    $ (18,827    $ (4,598      32

Other expense, net increased by $4.6 million, or 32%, from $14.2 million for the three months ended March 31, 2015 to $18.8 million for the three months ended March 31, 2016. The increase is primarily due to a $14.0 million increase in interest expense related to our Senior Credit Facilities and Notes during the three months ended March 31, 2016 as compared with the three months ended March 31, 2015, $1.3 million of amortization of deferred financing fees and original issue discounts $0.6 million of accretion of present value for the deferred consideration related to the Webzai, BuyDomains and Ace Data Center acquisitions and $0.1 million of interest related to capital lease obligations. These increases were partially offset by an $11.4 million gain as a result of the revaluation of our equity interest in WZ UK Ltd.

Income Tax Expense (Benefit)

 

     Three Months Ended
March 31,
     Change  
     2015      2016      Amount      %  
     (dollars in thousands)  

Income tax expense (benefit)

   $ 978       $ (99,902    $ (100,880      (10,315 )% 

Prior to the acquisition of Constant Contact, we maintained a valuation allowance against certain deferred tax assets. The acquisition of Constant Contact resulted in a significant increase in deferred tax liabilities, which far exceeded pre-acquisition deferred tax assets. We scheduled out the reversal of deferred tax assets and liabilities as of March 31, 2016, and determined that these reversals would be sufficient to realize most domestic deferred tax assets. The deferred tax liabilities supporting the realizability of these deferred tax assets in the acquisition will reverse in the same period, are in the same jurisdiction and are of the same character as the temporary differences that give rise to these deferred tax assets. As a result, we recorded a tax benefit of $73.6 million to reverse valuation allowances during the three months ended March 31, 2016.

For the three months ended March 31, 2015 and 2016, we recognized tax expense of $1.0 million and a tax benefit of $99.9 million, respectively, in the consolidated statements of operations and comprehensive income. The income tax benefit for the three months ended March 31, 2016 was primarily attributable to a $73.6 million reversal of the valuation allowance, a federal and state deferred tax benefit of $29.0 million, which includes the identification and recognition of $7.3 million of U.S. federal research and development tax credits, and a foreign deferred tax benefit of $0.7 million, partially offset by a provision for federal and state current income taxes of $2.2 million and foreign current tax expense of $1.1 million. The income tax expense for the three months ended March 31, 2015 is primarily attributable to a provision for foreign taxes of $0.4 million, federal and state current income taxes of $0.2 million, U.S. deferred income tax of $0.5 million related to the differences in the accounting treatment of goodwill under U.S. GAAP and the tax accounting for goodwill and foreign deferred tax expense of $0.2 million related to the increases of deferred liabilities, partially offset by a $0.3 million reduction of the valuation allowance.

 

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Liquidity and Capital Resources

Sources of Liquidity

In November 2013, we entered into a first lien term loan facility of $1,050.0 million. On February 9, 2016, in connection with our acquisition of Constant Contact, we entered into a $735.0 million incremental first lien term loan facility and a new $165.0 million revolving credit facility, and our wholly owned subsidiary EIG Investors issued $350.0 million aggregate principal amount of 10.875% senior notes due 2024. We refer to the incremental first lien term loan facility and new revolving credit facility, together with our previously existing first lien term loan facility, as the “Senior Credit Facilities” and to the 10.875% senior notes due 2024 as the “Notes”.

As a result of the “most-favored nation” pricing provision in our existing credit agreement, the interest rate on our existing first lien term loan facility increased to LIBOR plus 5.48% per annum on February 28, 2016, subject to a LIBOR floor of 1.0% per annum. In addition, we are obligated to use commercially reasonable efforts to make voluntary prepayments on our existing first lien term loan facility to effectively double the amount of each scheduled amortization payment under that facility (which is 0.25% per quarter of the principal outstanding as of November 25, 2013).

The incremental first lien term loan facility will mature in seven years, and bears interest at a rate of LIBOR plus 5.0% per annum, subject to a LIBOR floor of 1.0% per annum, and has scheduled amortization of 0.50% per quarter.

Revolving Credit Facility

Loans under the new $165.0 million revolving credit facility will bear interest at a rate of LIBOR plus 4.0% per annum (subject to a leverage-based step-down), without a LIBOR floor. This revolving credit facility has a “springing” maturity date of August 10, 2019 unless the existing first lien term loan facility has been repaid in full or otherwise extended to at least 91 days after the maturity of the revolving credit facility.

Loans under the Senior Credit Facilities are also subject to a base rate option, with interest rate spreads of 1.0% per annum less than those applicable to LIBOR-based loans.

The Senior Credit Facilities have been fully and unconditionally guaranteed, on a senior unsecured basis, by us and certain of our subsidiaries (including Constant Contact and its subsidiaries).

10.875% Senior Notes due 2024

The Notes will mature in February 2024, were issued at a price of 98.065% of par and will bear interest at the rate of 10.875% per annum. The Notes have been fully and unconditionally guaranteed, on a senior unsecured basis, by us and our subsidiaries that guarantee the Senior Credit Facilities (including Constant Contact and its subsidiaries).

In connection with the issuance of the Notes, we agreed to assist the initial purchasers of the Notes in marketing the Notes. In addition, we entered into a registration rights agreement with the initial purchasers of the Notes, which provides the holders of the Notes certain rights relating to registration of the Notes under the Securities Act.

Pursuant to the registration rights agreement, we will, among other obligations, use commercially reasonable efforts to file an exchange offer registration statement with respect to a registered offer, or the Exchange Offer, to exchange the Notes for substantially identical notes and consummate the Exchange Offer within 365 days after the issuance of the Notes. We will also, use commercially reasonable efforts to cause to become effective a shelf registration statement to cover resales of the Notes by the beneficial owners thereof who satisfy certain conditions relating to the provision of information in connection with the shelf registration statement. A registration default will occur if, among other things, (1) we fail to consummate the Exchange Offer or have the shelf registration statement become effective on or before the date that is 365 days after the issue date or (2) the shelf registration statement becomes effective but thereafter ceases to be effective or usable in connection with the resale of Notes (subject to certain exceptions) during the periods specified in the registration rights agreement. If a registration default occurs with respect to the Notes, the annual interest rate of the Notes will be increased by 0.25% per annum and will increase again by 0.25% per annum 90 days thereafter until all registration defaults have been cured, up to a maximum amount of additional interest of 0.50% per annum. We will also use commercially reasonable efforts to cause to become effective a registration statement providing for the registration of certain secondary transactions in the Notes by Goldman, Sachs & Co. and its affiliates.

As of March 31, 2016, we had cash and cash equivalents totaling $79.3 million and negative working capital of $358.8 million, which included the $21.0 million current portion of the first lien term loan facility and $14.7 million current portion of the incremental first lien term loan facility. In addition, we had approximately $2,038.4 million of long term indebtedness outstanding under our first lien term loan facility, which matures on November 9, 2019 and incremental first lien term loan facility due on February 9, 2023 and 10.875% Senior Notes due 2024. We also had $437.4 million of short-term and long-term deferred revenue, which is not expected to be payable in cash.

 

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Debt Covenants

Senior Credit Facilities

The Senior Credit Facilities require that we comply with a financial covenant to maintain a maximum ratio of net first lien debt to EBITDA (as defined in our existing credit agreement).

The Senior Credit Facilities contain covenants that limit our ability to, among other things, incur additional debt or issue certain preferred shares; pay dividends on or make other distributions in respect of capital stock; make other restricted payments; make certain investments; sell or transfer certain assets; create liens on certain assets to secure debt; consolidate, merge, sell or otherwise dispose of all or substantially all of our assets; and enter into certain transactions with affiliates. Additionally, the Senior Credit Facilities require us to comply with certain negative covenants and specify certain events of default that could result in amounts becoming payable, in whole or in part, prior to their maturity dates. We were in compliance with all covenants at March 31, 2016.

With the exception of certain equity interests and other excluded assets under the terms of the Senior Credit Facilities, substantially all of our assets are pledged as collateral for the obligations under the Senior Credit Facilities.

Notes

The indenture with respect to the Notes contains covenants that limit our ability to, among other things, incur additional debt or issue certain preferred shares; pay dividends on or make other distributions in respect of capital stock; make other restricted payments; make certain investments; sell or transfer certain assets; create liens on certain assets to secure debt; consolidate, merge, sell or otherwise dispose of all or substantially all of our assets; and enter into certain transactions with affiliates. Upon a change of control as defined in the Indenture, we or EIG Investors must offer to repurchase the Notes at 101% of the aggregate principal amount thereof, plus accrued and unpaid interest, if any, up to, but not including, the repurchase date. These covenants are subject to a number of important limitations and exceptions.

The indenture also provides for events of default, which, if any of them occurs, may permit or, in certain circumstances, require the principal, premium, if any, interest and any other monetary obligations on all the then outstanding Notes to be due and payable immediately.

Cash and Cash Equivalents

As of March 31, 2016, our cash and cash equivalents were primarily held for working capital purposes and for required principal and interest payments under our indebtedness. A majority of our cash and cash equivalents was held in operating accounts. Our cash and cash equivalents increased by $46.3 million from $33.0 million at December 31, 2015 to $79.3 million at March 31, 2016. We used cash on hand at December 31, 2015, cash flows from operations and proceeds from our incremental first lien term loan facility and Notes to fund our acquisition and minority investment activity described under financing and investing activities below. Our future capital requirements will depend on many factors including, but not limited to acquisitions, our growth rate, expansion of sales and marketing activities, the introduction of new and enhanced products and services, market acceptance of our solutions and our gross profits and operating expenses. We believe that our current cash and cash equivalents and operating cash flows will be sufficient to meet our anticipated working capital and capital expenditure requirements, as well as our required principal and interest payments under our indebtedness, for at least the next 12 months.

The following table shows our purchases of property and equipment, principal payments on capital lease obligations, depreciation, amortization and cash flows from operating activities, investing activities and financing activities for the stated periods:

 

     Three Months Ended
March 31,
 
     2015      2016  
     (dollars in thousands)  

Purchases of property and equipment

   $ (7,249    $ (10,140

Principal payments on capital lease obligations

   $ (930    $ (1,439

Depreciation

   $ 7,866       $ 13,172   

Amortization

   $ 21,456       $ 32,017   

Cash flows provided by operating activities

   $ 50,223       $ 11,772   

Cash flows used in investing activities

   $ (7,561    $ (893,186

Cash flows provided by (used in) financing activities

   $ (42,871    $ 927,095   

 

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Capital Expenditures

Our capital expenditures on the purchase of property and equipment for the three months ended March 31, 2015 and 2016 were $7.2 million and $10.1 million, respectively. The higher property and equipment expenditures in the three months ended March 31, 2016 consisted primarily of an investment in data center infrastructure. The remaining balance payable on the capital leases is $11.7 million as of March 31, 2016. For the next twelve months, we expect our capital expenditures to be generally consistent with the combined level of capital expenditures of Endurance and Constant Contact during 2015.

Depreciation

Our depreciation expense for the three months ended March 31, 2015 and 2016 increased from $7.9 million to $13.2 million, respectively. This increase was primarily due to expansion in our business by on-boarding acquisitions as well as investments in data center infrastructure and leasehold improvements. The leasehold improvements were associated with operating leases as we expanded and revamped our presence in Massachusetts.

Amortization

Our amortization expense, which includes amortization of other intangible assets, amortization of deferred financing costs, amortization of net present value of deferred consideration and amortization of original issue discounts, increased by $10.6 million from $21.5 million for the three months ended March 31, 2015 to $32.0 million for the three months ended March 31, 2016. Of this increase in amortization expense, $12.4 million of amortization expense related to intangible assets of businesses that have been acquired since March 31, 2015, partially offset by $3.8 million of lower amortization expense related to acquisitions that occurred prior to March 31, 2015. In addition, $0.6 million of the increase is attributable to higher amortization expense of net present value of deferred consideration as a result of our Ace acquisition in September 2015, $0.9 million is attributable to increased deferred financing costs and $0.5 million is attributable to amortization of original issue discounts related to our incremental first lien term loan facility and Notes.

Operating Activities

Cash provided by operating activities consists primarily of net income (loss) adjusted for certain non-cash items including depreciation, amortization, stock-based compensation expense and changes in deferred taxes, and the effect of changes in working capital, in particular in deferred revenue. As we add subscribers to our platform, we typically collect subscription fees at the time of initial billing and recognize revenue over the terms of the subscriptions. Accordingly, we generate operating cash flows as we collect cash from our subscribers in advance of delivering the related products and services, and we maintain a significant deferred revenue balance. As we add subscribers and sell additional products and services, our deferred revenue balance increases.

Net cash provided by operating activities was $11.8 million for the three months ended March 31, 2016 compared with $50.2 million for the three months ended March 31, 2016. Net cash provided by operating activities for the three months ended March 31, 2016 consisted of net income of $14.1 million, offset by non-cash charges of $48.9 million and a net change of $46.6 million in our operating assets and liabilities. The net change in our operating assets and liabilities included an increase in deferred revenue of $43.1 million, which was $28.2 million more than in the same period in 2015. Cash provided by operating activities for the three months ended March 31, 2016 has been reduced by $35.4 million of transaction costs, incurred primarily to acquire Constant Contact.

Net cash provided by operating activities was $50.2 million for the three months ended March 31, 2015, consisting of net income of $0.9 million, non-cash charges of $35.0 million and a net change of $14.3 million in our operating assets and liabilities. The net change in our operating assets and liabilities included an increase in deferred revenue of $14.9 million.

Investing Activities

Cash flows used in investing activities consist primarily of purchase of property and equipment, acquisition consideration payments, and changes in restricted cash balances.

During the three months ended March 31, 2016, net cash used in investing activities was $893.2 million. We used $881.7 million of cash, net of cash acquired, for the purchase consideration for our acquisition of Constant Contact and our acquisition of a controlling interest in WZ UK Ltd. We also used $10.1 million of cash to purchase property and equipment, net of proceeds from disposals and a net deposit of $0.7 million of restricted cash with a payment processor. In addition, we paid $0.6 million for a convertible promissory note from a business that provides web and mobile management solutions, with the potential for subsequent purchases of additional convertible notes.

 

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During the three months ended March 31, 2015, net cash used in investing activities was $7.6 million. We used $7.2 million of cash to purchase property and equipment and deposited $0.3 million of restricted cash with a payment processor.

Financing Activities

Cash flow from financing activities consists primarily of the net change in our overall indebtedness, payment of associated financing costs, payment of deferred consideration for our acquisitions and the issuance or repurchase of equity.

During the three months ended March 31, 2016, cash flows provided by financing activities was $927.1 million. We received $1.1 billion from the issuance of the incremental first lien term loan and Notes to finance the acquisition of Constant Contact. Our net reduction of our revolving credit facility was $67.0 million, as we paid off our revolving credit facility with the proceeds from the new debt used to acquire Constant Contact. We also received $0.6 million of proceeds from the exercise of stock options. These items were partially offset by an $8.9 million principal payment related to our term loans and an $83.0 million aggregate repayment, including the $67.0 million that was paid with the proceeds from the new debt used to acquire Constant Contact related to our revolving credit facility. In addition, we paid $51.6 million of financing costs, $1.4 million of principal payments related to capital lease obligations and a $0.7 million payment of deferred consideration.

During the three months ended March 31, 2015, cash flows used in financing activities was $42.9 million, which included a $10.2 million payment to increase our investment in JDI Backup Ltd. to 100%, $0.5 million of deferred consideration paid during the period, net payments against our revolving credit facility of $29.0 million, principal payments of $2.6 million under our first lien term loan facility and $0.9 million or principal payments related to capital lease obligations.

Net Operating Loss Carry-Forwards

As of December 31, 2015, we had net operating loss, or NOL, carry-forwards available to offset future U.S. federal taxable income of approximately $97.8 million and future state taxable income of approximately $111.2 million. These NOL carry-forwards expire on various dates through 2034. Approximately $1.6 million of the U.S. federal NOL carry-forwards and $0.7 million of the state NOL carry-forwards are from excess stock-based compensation, for which the benefit will be recorded to additional-paid in capital when recognized. In addition, as of December 31, 2015, we had NOL carry-forwards in foreign jurisdictions available to offset future foreign taxable income by approximately $27.4 million. We have loss carry-forwards in India totaling $2.9 million that expire in 2021. We also have loss carry-forwards in the United Kingdom, Israel and Singapore of $23.4 million, $0.9 million and $0.2 million, respectively, which have an indefinite carry-forward period.

Utilization of the NOL carry-forwards can be subject to an annual limitation due to the ownership percentage change limitations under Section 382 of the Internal Revenue Code or Section 382 limitation. Ownership changes can limit the amount of net operating loss and other tax attributes that a company can use each year to offset future taxable income and taxes payable. In connection with a change in control in 2011 we were subject to Section 382 annual limitations of $77.1 million against the balance of NOL carry-forwards generated prior to the change in control in 2011. Through December 31, 2014 we accumulated the unused amount of Section 382 limitations in excess of the amount of NOL carry-forwards that were originally subject to limitation. Therefore, these unused NOL carry-forwards are available for future use to offset taxable income. We completed an analysis of changes in our ownership from 2011, through our IPO, to December 31, 2013 and concluded that there was not a Section 382 ownership change during this period and therefore any NOLs generated through December 31, 2013 will not be subject to any new Section 382 annual limitations on NOL carry-forwards. On November 20, 2014, we completed a follow-on offering of 13,000,000 shares of common stock. The underwriters also exercised their overallotment option to purchase an additional 1,950,000 shares of common stock from the selling stockholders. We performed an analysis of the impact of this offering and determined that no Section 382 change in ownership has occurred. As a result, all unused NOL carry-forwards at December 31, 2014 were available for future use to offset taxable income.

On March 11, 2015, the Company completed a follow-on offering of its common stock, in which selling stockholders sold 12,000,000 shares of common stock at a public offering price of $19.00 per share. The underwriter also exercised its overallotment option to purchase an additional 1,800,000 shares of common stock from the selling stockholders. We are currently completing an analysis of its ownership changes from March 11, 2015 through December 31, 2015, but does not believe the outcome of this analysis will result in an additional ownership change based on the information available at this time.

Contractual Obligations and Commitments

We closed our acquisition of Constant Contact on February 9, 2016. This acquisition was funded with an increase in our indebtedness of approximately $1.1 billion. Our outstanding indebtedness, including capital lease obligations, at March 31, 2016 was $2,085.7 million. In connection with the new indebtedness to finance the acquisition of Constant Contact, we paid off our existing revolving credit facility and entered into a new $165.0 million revolving credit facility. There are no amounts borrowed under this new revolving credit facility as of March 31, 2016.

 

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We have taken a controlling interest in WZ UK, Ltd. We have determined that we will be required to purchase the remaining 42.5% interest based on the expected attainment of certain revenue related targets. We expect to pay at least $30.0 million for the remaining interest, with approximately $15.0 to $20.0 million to be paid during the remainder of fiscal year 2016. The actual payments would be based on multiples of billed revenue, which may cause the final amounts paid to vary from our current estimates.

We have majority ownership interests in two entities, and we may be required to purchase the remaining 40% interest in each entity if certain revenue related targets are met. We have determined that the attainment of these revenue targets is not yet probable. The minimum purchase price for the remaining equity interests for these two entities is $30.0 million per entity. The actual payments would be based on multiples of billed revenue, which may cause the final amounts to vary from the minimum purchase price.

There have been no other significant changes in our contractual obligations from those disclosed in our Annual Report on Form 10-K filed with the SEC on February 29, 2016.

Recently Issued Accounting Pronouncements

For information on recent accounting pronouncements, see Recent Accounting Pronouncements in the notes to the consolidated financial statements appearing in Part I, Item 1 of this Quarterly Report on Form 10-Q.

Off-Balance Sheet Arrangements

We do not have any special purpose entities or off-balance sheet arrangements.

 

Item 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

Quantitative and Qualitative Disclosure About Market Risk

We have operations both within the United States and internationally, and we are exposed to market risk in the ordinary course of our business. These risks include primarily foreign exchange risk, interest rate and inflation.

Foreign Currency Exchange Risk

A significant majority of our subscription agreements and our expenses are denominated in U.S. dollars. We do, however, have sales in a number of foreign currencies as well as business operations in Brazil and India and are subject to the impacts of currency fluctuations in those markets. The impact of these currency fluctuations is insignificant relative to the overall financial results of our company.

Interest Rate Sensitivity

We had cash and cash equivalents of $79.3 million at March 31, 2016, the majority of which was held in operating accounts for working capital purposes and other general corporate purposes which includes payment of principal and interest under our indebtedness. As of March 31, 2016, we had approximately $1,021.1 million of indebtedness outstanding under our first lien term loan facility, $731.3 million outstanding under our incremental first lien term loan, $350.0 million outstanding under The Notes and a revolving credit facility of $165.0 million, all of which was available.

The first lien term loan facility bears interest at a rate per annum equal to an applicable credit spread plus, at our option, (a) adjusted LIBOR or (b) an alternate base rate determined by reference to the greater of (i) the prime rate, (ii) the federal funds effective rate plus 0.50% and (iii) one-month adjusted LIBOR plus 1.00%. The term loan is subject to a floor of 1.00% per annum with an applicable credit spread for interest based on adjusted LIBOR of 4.00%. As a result of the “most-favored nation” pricing provision in our existing credit agreement, the interest rate on our existing first lien term loan facility increased to LIBOR plus 5.48% per annum on February 28, 2016, subject to a LIBOR floor of 1.0% per annum.

The incremental first lien term loan facility bears interest at a rate of LIBOR plus 5.0% per annum, subject to a LIBOR floor of 1.0% per annum, and has scheduled amortization of 0.50% per quarter.

Loans under the new $165.0 million revolving credit facility will bear interest at a rate of LIBOR plus 4.0% per annum (subject to a leverage-based step-down), without a LIBOR floor.

 

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Loans under the first lien term loan facility and incremental first lien term loan facility and revolving credit facility are also subject to a base rate option, with interest rate spreads of 1.0% per annum less than those applicable to LIBOR-based loans.

We are also required to pay a commitment fee of 0.50% per annum to the lenders based on the average daily unused amount of the revolving commitments.

Based on our aggregate indebtedness outstanding under our first lien term loan facility and incremental first lien term loan facility of $1,752.5 million as of March 31, 2015, a 100 basis point increase in the adjusted LIBOR rate above the LIBOR floor would result in a $17.6 million increase in our aggregate interest payments over a 12-month period, and a 100 basis point decrease at the current LIBOR rate would not result in a decrease in our interest payments.

We entered into a three-year interest rate cap on December 9, 2015 as part of our risk management strategy. This interest rate cap limits our exposure to interest rate increases on $500.0 million of our first lien term loan. If the LIBOR interest rates for this loan increase more than 137 basis points above the rates at December 31, 2015, our interest rate cap would begin to protect us on interest charges for $500.0 million of outstanding debt.

Inflation Risk

We do not believe that inflation has a material effect on our business, financial condition or results of operations. If our costs were to become subject to significant inflationary pressures, we may not be able to fully offset such higher costs through price increases. Our inability to do so could harm our business, financial condition and results of operations.

 

Item 4. CONTROLS AND PROCEDURES

Evaluation of Disclosure Controls and Procedures

As of March 31, 2016, our management, with the participation of our chief executive officer and chief financial officer, evaluated the effectiveness of our disclosure controls and procedures. The term “disclosure controls and procedures,” as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act, means controls and other procedures of a company that are designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the SEC’s rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the company’s management, including its principal executive and principal financial officers, as appropriate to allow timely decisions regarding required disclosure. Management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving their objectives and management necessarily applies its judgment in evaluating the cost-benefit relationship of possible controls and procedures. Based upon that evaluation of our disclosure controls and procedures as of March 31, 2016, our chief executive officer and chief financial officer concluded that, as of such date, our disclosure controls and procedures were effective at the reasonable assurance level.

Changes in Internal Control over Financial Reporting

During the three months ended March 31, 2016, we acquired Constant Contact. Other than the addition of Constant Contact’s operations to our internal control over financial reporting and any related changes in control to integrate Constant Contact, there has not been any change in our internal control over financial reporting (as such term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) during the most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

 

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PART II. OTHER INFORMATION

 

ITEM 1. LEGAL PROCEEDINGS

From time to time we are involved in legal proceedings or subject to claims arising in the ordinary course of our business. We are not presently involved in any such legal proceeding or subject to any such claim that, in the opinion of our management, would have a material adverse effect on our business, operating results or financial condition. However, the results of such legal proceedings or claims cannot be predicted with certainty, and regardless of the outcome, can have an adverse impact on us because of defense and settlement costs, diversion of management resources and other factors. Neither the ultimate outcome of the matters listed below nor an estimate of any probable losses or any reasonably possible losses can be assessed at this time.

Endurance

We received a subpoena dated December 10, 2015 from the Boston Regional Office of the SEC, requiring the production of certain documents, including, among other things, documents related to our financial reporting, including operating and non-GAAP metrics, refund, sales and marketing practices and transactions with related parties. We are fully cooperating with the SEC’s investigation, which is still in its preliminary stages. We can make no assurances as to the time or resources that will need to be devoted to this investigation or its final outcome, or the impact, if any, of this investigation or any related legal or regulatory proceedings on our business, financial condition, results of operations and cash flows.

On May 4, 2015, Christopher Machado, a purported holder of our common stock, filed a civil action in the United States District Court for the District of Massachusetts against us and our chief executive officer and our former chief financial officer, Machado v. Endurance International Group Holdings, Inc., et al., Civil Action No. 1:15-cv-11775-GAO. In a second amended complaint, file on March 18, 2016, the plaintiff alleged claims for violations of Section 10(b) and 20(a) of the Exchange Act, on behalf of a purported class of purchasers of our securities between February 25, 2014 and February 29, 2016. Those claims challenged as false or misleading certain of our disclosures about our total number of subscribers, average revenue per subscriber, the number of customers paying over $500 per year for our products and services, the average number of products sold per subscriber, and our customer churn. The plaintiff seeks, on behalf of himself and the purported class, compensatory damages and his costs and expenses of litigation. The plaintiff has recently been given leave to file a second amended complaint, which will supersede the current complaint. We and the individual defendants intend to deny any liability or wrongdoing and to vigorously defend all claims asserted. We cannot, however, make any assurances as to the outcome of this proceeding.

Constant Contact

On December 10, 2015, Constant Contact received a subpoena from the Boston Regional Office of the SEC, requiring the production of documents pertaining to Constant Contact’s sales, marketing, and customer retention practices, and periodic public disclosure of financial and operating metrics. We are fully cooperating with the SEC’s investigation. We can make no assurances as to the time or resources that will need to be devoted to this investigation or its final outcome, or the impact, if any, of this investigation or any related legal or regulatory proceedings on our business, financial condition, results of operations and cash flows.

On August 7, 2015, a purported class action lawsuit, William McGee v. Constant Contact, Inc., et al, was filed in the United States District Court for the District of Massachusetts against Constant Contact and two of its former officers. The lawsuit asserts claims under Sections 10(b) and 20(a) of the Exchange Act, and is premised on allegedly false and/or misleading statements, and non-disclosure of material facts, regarding Constant Contact’s business, operations, prospects and performance during the proposed class period of October 23, 2014 to July 23, 2015. This litigation is in its very early stages. We and the individual defendants intend to vigorously defend all claims asserted. We cannot, however, make any assurances as to the outcome of this proceeding.

In September 2012, RPost Holdings, Inc., RPost Communications Limited and RMail Limited, or collectively, RPost, filed a complaint in the United States District Court for the Eastern District of Texas that named Constant Contact as a defendant in a lawsuit. The complaint alleged that certain elements of Constant Contact’s email marketing technology infringe five patents held by RPost. RPost seeks an award for damages in an unspecified amount and injunctive relief. In February 2013, RPost amended its complaint to name five of Constant Contact’s marketing partners as defendants. Under Constant Contact’s contractual agreements with these marketing partners, it is obligated to indemnify them for claims related to patent infringement. Constant Contact filed a motion to sever and stay the claims against its partners and multiple motions to dismiss the claims against it. In January 2014, the case was stayed pending the resolution of certain state court and bankruptcy actions involving RPost, to which Constant Contact is not a party. The stay was extended by agreement of the parties in December 2014. This litigation is in its very early stages. We believe we have meritorious defenses to any claim of infringement and intend to defend against the lawsuit vigorously.

 

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Legal Proceedings Related to the Constant Contact acquisition

On December 11, 2015, a putative class action lawsuit relating to the Constant Contact acquisition, captioned Irfan Chawdry, Individually and On Behalf of All Others Similarly Situated v. Gail Goodman, et al. Case No. 11797, or the Chawdry Complaint, and on December 21, 2015, a putative class action lawsuit relating to the acquisition captioned David V. Myers, Individually and On Behalf of All Others Similarly Situated v. Gail Goodman, et al. Case No. 11828, or the Myers Complaint (together with the Chawdry Complaint, the Complaints) filed in the Court of Chancery of the State of Delaware naming Constant Contact, each of Constant Contact’s directors, Endurance and Paintbrush Acquisition Corporation as defendants. The Complaints generally allege, among other things, that in connection with the acquisition the directors of Constant Contact breached their fiduciary duties owed to the stockholders of Constant Contact by agreeing to sell Constant Contact for purportedly inadequate consideration, engaging in a flawed sales process, omitting material information necessary for stockholders to make an informed vote, and agreeing to a number of purportedly preclusive deal protection devices. The Complaints seek, among other things, to rescind the acquisition, as well as award of plaintiffs’ attorneys’ fees and costs in the action. The defendants have not yet answered or otherwise responded to either of these Complaints. The defendants believe the claims asserted in the Complaints are without merit and intend to defend against these lawsuits vigorously.

 

ITEM 1A. Risk Factors

Our business, financial condition, results of operations and future growth prospects could be materially and adversely affected by the following risks or uncertainties. The risks and uncertainties described below are those that we have identified as material, but they are not the only risks and uncertainties we face. Our business is also subject to general risks and uncertainties that affect many other companies, including overall economic and industry conditions, as well as other risks not currently known to us or that we currently consider immaterial. If any of such risks and uncertainties actually occurs, our business, financial condition, results of operations and growth prospects could differ materially from the plans, projections and other forward-looking statements included in the section titled “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and elsewhere in this Quarterly Report on Form 10-Q and in our other public filings.

Risks Related to Our Business and Our Industry

Our quarterly and annual operating results may be adversely affected due to a variety of factors, which could make our future results difficult to predict and could cause our operating results to fall below investor or analyst expectations.

Our quarterly and annual operating results may be adversely affected due to a variety of factors that could affect our revenue or our expenses in any particular period. You should not rely on quarter-to-quarter comparisons of our operating results as an indication of future performance. Factors that may adversely affect our quarterly and annual operating results may include:

 

    our ability to attract new subscribers, and retain existing subscribers;

 

    our ability to acquire subscribers in a cost-effective way;

 

    our ability to increase revenue from our existing subscribers;

 

    our ability to maintain a high level of subscriber satisfaction;

 

    our inability to raise the selling prices for our solutions or reductions in the selling prices for our solutions;

 

    competition in the market for our products and services, as well as competition for referral sources;

 

    rapid technological change, frequent new product and service introductions, and evolving industry standards, including with respect to how our products and services are marketed to consumers, in how consumers find, purchase and use our products and services and in technology intended to block email marketing;

 

    difficulties in integrating technologies, products and employees from companies we have acquired or may acquire in the future or in migrating acquired subscribers from an acquired company’s platforms to our platform;

 

    systems, data center and Internet failures and service interruptions;

 

    network security breaches or sabotage resulting in the unauthorized use or disclosure of, or access to, personally identifiable information or other confidential information;

 

    loss of key employees;

 

    our ability to drive growth through mergers and acquisitions, joint ventures, or strategic investments;

 

    economic conditions negatively affecting the SMB sector and changes in growth rate of SMBs;

 

    difficulties and costs arising from our international operations and continued international expansion;

 

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    difficulties in distributing new products;

 

    shortcomings or errors in, or misinterpretations of, our metrics and data, including those that cause us to fail to anticipate or identify trends in our market;

 

    terminations of, disputes with, or material changes to our relationships with third-party partners, including referral sources, product partners, data center providers, payment processors and landlords;

 

    a shift in subscriber demand to lower margin solutions, which could increase our cost of revenue;

 

    costs or liabilities associated with any past or future acquisitions, strategic investments or joint ventures that we may make or enter into;

 

    changes in legislation, including changes that affect our collection of sales and use taxes or changes to our business that subject us to taxation in additional jurisdictions;

 

    the amount and timing of capital expenditures, such as investments in our hardware and software systems, as well as extraordinary expenses, such as litigation or other dispute-related settlement payments;

 

    changes in regulation or to regulatory bodies, such as the Internet Corporation for Assigned Names and Numbers, or ICANN, and U.S. and international regulations governing email marketing and privacy, that could affect our business and our industry, or costs of or our failure to comply with such regulation; and

 

    litigation or governmental enforcement actions against us, including due to failures to comply with applicable law or regulation.

It is possible that in one or more future quarters, due to any of the factors listed above, a combination of those factors or other reasons, our operating results may be below our expectations and the expectations of research analysts and investors. In that event, our stock price could decline substantially.

The acquisition of Constant Contact may not achieve the intended benefits or may disrupt our current plans and operations.

We may not be able to successfully integrate our business with Constant Contact’s business or realize the anticipated synergies from the acquisition in the anticipated amounts or within the anticipated timeframes or cost expectations or at all. The difficulties and risks associated with the integration of Constant Contact, which is complex and time-consuming, include:

 

    the potential loss of Constant Contact customers or partners, or difficulties or higher than anticipated costs in adding new Constant Contact customers and partners, due to the actual or perceived impact of the acquisition and integration of Constant Contact customers and partners;

 

    possible aggressive targeting of existing and potential Constant Contact customers or partners by Constant Contact’s competitors seeking to capitalize on potential customer or partner concerns about the acquisition;

 

    possible differences in the standards, controls, procedures, policies, corporate culture and compensation structures of our company and Constant Contact, which may lead to unanticipated delays, costs or inefficiencies, employee departures or difficulties consolidating the operations of the companies;

 

    difficulties and delays in implementing our integration plan, which may result in us failing to achieve the anticipated synergies from the acquisition in a timely manner or at all;

 

    the potential loss of key employees and the costs associated with our efforts to retain key employees;

 

    difficulties successfully managing relationships with our combined partner and vendor base;

 

    the possibility that we, as a successor owner, may be responsible for actual or contingent liabilities of Constant Contact that we failed to discover during our due diligence investigation prior to our agreement to acquire Constant Contact; and

 

    obligations that we may have to counterparties of Constant Contact that arise as a result of the change in control of Constant Contact.

Thus, the integration may be unpredictable, or subject to delays or changed circumstances, and we may fail to realize some or all of the anticipated benefits of the Constant Contact acquisition, such as:

 

    cost and revenue synergies,

 

    operational efficiencies,

 

    the ability to cross-sell our products into Constant Contact’s customer base and vice versa, and

 

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    the ability to adapt Constant Contact’s products to different segments of the SMB market through our multi-brand strategy.

The anticipated benefits and synergies we expect from the acquisition are based on various projections and assumptions, which may not materialize as or when expected or may prove to be inaccurate. A failure to realize the expected cost and revenue synergies or operational efficiencies related to the acquisition could result in higher costs and lower combined revenue, adjusted revenue, adjusted EBITDA, unlevered free cash flow or free cash flow than expected and have an adverse effect on our financial results and prospects. Any such effect on our financial results may mean that we are not able to meet our expectations for combined adjusted revenue, adjusted EBITDA, unlevered free cash flow, free cash flow or other financial or operational metrics.

Our business may be negatively impacted following the Constant Contact acquisition if we are unable to effectively manage our expanded operations. The implementation of our integration plans following the acquisition will be costly, complex and time consuming and will require significant time and focus from management and may divert attention from the day-to-day operations of the combined business. Additionally, consummation of the Constant Contact acquisition could disrupt our plans and operations, which could delay the achievement of our strategic objectives.

We may not be able to continue to add new subscribers, retain existing subscribers or increase sales to existing subscribers, which could adversely affect our operating results.

Our growth is dependent on our ability to continue to attract and acquire new subscribers while retaining existing subscribers and expanding the products and services we sell to them. Growth in the demand for our products and services may be inhibited, and we may be unable to sustain growth in our subscriber base, for a number of reasons, including, but not limited to:

 

    our failure to develop or offer new or additional products and services in a timely manner that keeps pace with new technologies and the evolving needs of our subscribers;

 

    our inability to market our solutions in a cost-effective manner to new subscribers or to our existing subscribers and to increase our sales to existing subscribers, including due to changes in regulation, or changes in the enforcement of existing regulation that would impair our marketing practices, require us to change our sign-up processes or require us to increase disclosure designed to provide greater transparency as to how we bill and deliver our services;

 

    our inability to acquire or retain new subscribers through mergers and acquisitions, joint ventures or strategic investments;

 

    our inability to offer solutions that are adequately integrated and customizable to meet the needs of our highly diverse and fragmented subscriber base;

 

    changes in search engine ranking algorithms or in search terms used by potential subscribers, either of which may have the effect of increasing our competitors’ search engine rankings or increasing our marketing costs to offset lower search engine rankings;

 

    changes in, or a failure to manage, technology intended to block email marketing;

 

    failure of our third-party development partners, which provide a significant portion of our offerings, to continue to support existing products and to develop and support new products;

 

    the inability of our subscribers to differentiate our solutions from those of our competitors or our inability to effectively communicate such distinctions;

 

    our inability to maintain awareness of our brands;

 

    our inability to maintain a consistent user experience and timely and consistent product upgrade schedule for all of our subscribers due to the fact that not all of our brands, products, or services operate from the same control panel or other systems;

 

    our inability to penetrate, or adapt to requirements of, international markets, including our inability to obtain or maintain the required licenses to operate in certain international markets;

 

    our inability to enter into automatically renewing contracts with our subscribers or increase subscription prices;

 

    the decisions by our subscribers to move the hosting of their Internet sites and web infrastructure to their own IT systems, into co-location facilities or to our competitors if we are unable to effectively market the scalability of our solutions;

 

    subscriber dissatisfaction causing our existing subscribers to stop referring prospective subscribers to us; and

 

    perceived or actual security, integrity, reliability, quality or compatibility problems with our solutions, including related to unscheduled downtime, outages or network security breaches.

 

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A substantial amount of our revenue growth historically has been derived from increased sales of products and services to existing subscribers and from introductory subscriptions renewing at regular rates. Our costs associated with increasing revenue from existing subscribers are generally lower than costs associated with generating revenue from new subscribers. Therefore, a reduction in the rate of revenue increase from our existing subscribers, even if offset by an increase in revenue from new subscribers, could reduce our operating margins, and any failure by us to continue to attract and acquire new subscribers or increase our revenue from existing subscribers could have a material adverse effect on our operating results.

The rate of growth of the SMB market for our solutions could be significantly lower than our estimates . If demand for our products and services does not meet expectations, our ability to generate revenue and meet our financial targets could be adversely affected.

Although we expect continued demand in the SMB market for our cloud-based solutions and online marketing tools, it is possible that the rate of growth may not meet our expectations, or the market may not continue to grow at all, either of which would adversely affect our business. Our expectations for future revenue growth are based in part on assumptions reflecting our industry knowledge and experience serving SMBs, as well as our assumptions regarding demographic shifts, growth in the availability and capacity of Internet infrastructure internationally and macroeconomic conditions. If any of these assumptions proves to be inaccurate, then our actual revenue growth could be significantly lower than our expected revenue growth.

Our ability to compete successfully depends on our ability to offer an integrated and comprehensive suite of products and services that enable our diverse base of subscribers to establish, manage and grow their businesses. Our web presence and commerce offerings are predicated on the assumption that an online presence is, and will continue to be, an important factor in our subscribers’ abilities to establish, expand, manage and monetize their businesses quickly, easily and affordably. If we are incorrect in this assumption, for example due to the introduction of a new technology or industry standard that supersedes the importance of an online presence or renders our existing or future solutions obsolete, then our ability to retain existing subscribers and attract new subscribers could be adversely affected, which could harm our ability to generate revenue and meet our financial targets.

Our business and operations have experienced rapid growth and organizational change in recent years, which has placed, and will continue to place, significant demands on our management and infrastructure, especially our billing systems and operational infrastructure . We have also made significant investments to support our growth strategy, which may not succeed . If we fail to manage our growth effectively, we may be unable to execute our business plan, maintain high levels of service, produce accurate financial statements and other disclosures on a timely basis or address competitive challenges adequately.

As a result of acquisitions and internal growth, we increased our revenue from $520.3 million in the year ended December 31, 2013 to $629.8 million in the year ended December 31, 2014 to $741.3 million in the year ended December 31, 2015. The acquisition of Constant Contact, which prior to our acquisition generated $367.4 million in revenue in the year ended December 31, 2015, represents a significant expansion in the size and scope of our business.

Our growth has placed, and will continue to place, a significant strain on our managerial, engineering, network operations and security, sales and support, marketing, legal, compliance, finance and other resources. In particular, our growth has placed, and will continue to place, a significant strain on our ability to maintain effective internal financial and accounting controls and procedures. For example, as a result of our acquisitions, we have acquired multiple billing systems, some of which we are in the process of integrating, and we may acquire and integrate additional billing systems with future acquisitions. Any delays or other challenges associated with billing system build-outs or integrations could lead to inaccurate disclosure, which could prevent us from producing accurate financial statements on a timely basis and harm our operating results, our ability to operate our business and our investors’ view of us. In addition, we have identified in the past, and may in the future identify, errors in our systems, including the business intelligence system, which we use to generate certain operational and performance metrics. For example, in the third quarter of 2015, we identified errors in our business intelligence system that impacted three of our performance metrics, as described in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in Part II, Item 7 of our Annual Report on Form 10-K filed with the SEC on February 29, 2016. Our operational and performance metrics, which we voluntarily disclose, historically have not been subject to the same level of reporting controls as our financial statements and other financial information that we are required to disclose. We are working to improve our controls for these operational and performance metrics, but further errors with respect to these metrics could still occur. Errors of this type could result in inaccurate disclosures, negatively impact our business decisions and harm investors’ view of us.

In addition, as a result of our growth, the increase in the number of our total subscribers has required us to invest in and improve the security, scale and flexibility of our infrastructure and information technology systems, and the increase in the number of payment transactions that we process for our subscribers has increased the amount of customer data that we store. Any loss of data or disruption in our ability to provide our product offerings due to disruptions to, or the inflexibility or lack of scale of, our infrastructure or information technology systems could harm our business or our reputation.

 

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We have also made significant investments in our growth strategy, which may not succeed. For example, we have incurred significant expenses relating to our increased investments in product marketing and other marketing efforts to acquire new subscribers and to sell additional products to existing subscribers. We intend to continue investing in our product marketing and other marketing efforts, particularly investments in new products that we expect will act as new gateways to reach new subscribers. We have also incurred significant expenses and allocated significant resources, including finance, operational, legal and compliance resources, related to the growth and continued expansion of our international operations, and we expect that such expenses and resource allocation will increase in the future. If we do not achieve the benefits anticipated from these investments, or if the achievement of these benefits is delayed, our operating results may be adversely affected.

We intend to further expand our overall business, subscriber base, data center infrastructure, headcount and operations, both domestically and internationally with no assurance that our business or revenue will continue to grow. Creating an organization with expanded U.S. and overseas operations and managing a geographically dispersed workforce will require substantial management effort, the allocation of significant management resources and significant additional investment in our infrastructure, including our information technology, operational, financial and administrative infrastructure and systems. We will also have to continue to ensure that our operational, financial, compliance, risk and management controls and our reporting procedures are in effect throughout our organization, and make improvements as necessary. As such, we may be unable to manage our expenses effectively in the future, which may adversely affect our gross margins or operating expenses in any particular quarter. If we fail to manage our anticipated growth and organizational change in a manner that preserves the key aspects of our corporate culture, the quality of our solutions may suffer or fail to keep up with changes in the industry or technological developments, which could adversely affect our brands and reputation and harm our ability to retain and attract subscribers.

Our recent or potential future acquisitions, joint ventures and other strategic investments could be difficult to execute and integrate, divert the attention of key personnel, disrupt our business, dilute stockholder value and impair our financial results . We may not be able to complete anticipated acquisitions and may not realize the expected benefits from our acquisitions, joint ventures or other strategic investments that we have completed or may complete in the future.

Acquisitions are an important component of our growth strategy. We have in the past acquired, and expect in the future to acquire, businesses and assets of other companies to increase our growth, enhance our ability to compete in our core markets or allow us to enter new markets. We also regularly make strategic investments in, and enter into joint ventures with, third parties. These strategic investment and joint venture arrangements are typically with small companies focused on developing products that we believe may serve as effective new gateways to acquire new subscribers or that may appeal to our existing subscriber base. Our ability to execute these acquisitions, strategic investments and joint venture transactions depends on a number of factors, including the availability of target companies at prices and on terms acceptable to us, our ability to obtain the necessary equity, debt or other financing, and regulatory constraints. Our inability to complete anticipated acquisitions, strategic investments or joint ventures for these or other reasons may negatively impact our ability to achieve our long-term growth targets.

In addition, these transactions involve numerous risks, any of which could harm our business, including:

 

    difficulties or delays in integrating the technologies, products, operations, billing systems, personnel or operations of an acquired business and realizing the anticipated benefits of the combined businesses;

 

    reliance on third parties for transition services prior to subscriber migration or difficulties in supporting and migrating acquired subscribers, if any, to our platform, causing potential loss of such subscribers and damage to our reputation;

 

    disruption of our ongoing business and diversion of financial, management, operations and customer support resources from existing operations;

 

    difficulties in applying our controls and risk management and compliance policies and practices to acquired companies;

 

    integration and support of redundant solutions or solutions that are outside of our core capabilities;

 

    the incurrence of additional debt in order to fund an acquisition, or assumption of debt or other liabilities, including litigation risk or risks associated with other unforeseen or undisclosed liabilities, of the acquired company, or exposure to successor liability for any legal violations of the acquired company;

 

    to the extent an acquired company has a corporate culture or compensation arrangement different from ours, difficulty assimilating or integrating the acquired organization and its talent, which could lead to morale issues, increased turnover and lower productivity than anticipated, and could also adversely affect the culture of our existing organization;

 

    the price we pay, or other resources that we devote, may exceed the value we realize, or the value we could have realized if we had allocated the purchase price or other resources to another opportunity, or unanticipated costs associated with pursuing acquisitions;

 

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    potential loss of an acquired business’ strategic alliances and key employees, including those employees who depart prior to transferring to us, or without otherwise documenting, knowledge and information that are important to the efficient operation of the acquired business;

 

    potential deployment by an acquired company of its top talent to other of its business units prior to our acquisition if we do not acquire the entirety of an acquired company’s stock or assets;

 

    difficulties associated with governance, management and control matters in majority or minority investments and risk of loss of all or a substantial portion of our investment;

 

    disruption of our business due to sellers, former employees, contractors or third-party service providers of an acquired company or business misappropriating our intellectual property, violating non-competition agreements, or otherwise causing harm to our company;

 

    adverse tax consequences, including exposure of our entire business to taxation in additional jurisdictions, exposure to substantial penalties, fees and costs if an acquired company failed to comply, or is alleged by regulatory authorities to have failed to comply, with relevant tax rules and regulations prior to our acquisition, or substantial depreciation or deferred compensation charges; and

 

    accounting effects, including potential impairment charges related to long-lived assets and requirements that we record deferred revenue at fair value.

We rely heavily on the representations and warranties provided to us by the sellers in our acquisitions, including as they relate to creation, ownership and rights in intellectual property, existence of open source software and compliance with laws and contractual requirements. If any of these representations and warranties are inaccurate or breached, we may incur liability for which there may be no recourse, or inadequate recourse, against the sellers, in part due to contractual time limitations and limitations of liability, or we may need to pursue costly litigation against the sellers. Moreover, acquisitions frequently result in the recording of goodwill and other intangible assets which are subject to potential impairments in the future that could harm our financial results. We may also incur expenses related to completing acquisitions, or in evaluating potential acquisitions or technologies, which may adversely affect our profitability. In addition, if we finance acquisitions by issuing equity securities, our existing stockholders may be diluted.

If we fail to properly conduct due diligence efforts, evaluate acquisitions or investments or identify liabilities or challenges associated with the companies, businesses or technologies we acquire, we may not achieve the anticipated benefits of any such acquisitions and we may incur costs in excess of what we anticipate. The failure to successfully evaluate and execute acquisitions or investments or otherwise adequately address these risks could materially harm our business and financial results.

The international nature of our business and our continued international expansion expose us to business risks that could limit the effectiveness of our growth strategy and cause our operating results to suffer.

We currently maintain offices and conduct operations primarily in the United States, Brazil, India, Israel and the United Kingdom and have third-party support arrangements in India, the Philippines and China. In addition, we have localized versions of our Bluehost and HostGator sites targeted to customers in several countries, including Brazil, Russia, India, China, Turkey and Mexico. We intend to continue to expand our international operations, including through mergers and acquisitions.

Any international expansion efforts that we undertake may not be successful. In addition, conducting operations in international markets or establishing international locations subjects us to new risks that we have not generally faced in the United States. These risks include:

 

    localization of the marketing and deployment of our solutions, including translation into foreign languages and adaptation for local practices and regulatory requirements;

 

    lack of familiarity with, burdens of, and increased expense relating to, complying with foreign laws, legal standards, regulatory requirements, tariffs and other barriers, some of which may favor local competitors, including laws related to employment or labor, laws regarding liability of online service providers for activities of subscribers, such as defamation, infringement or other illegal activities, and more stringent laws in foreign jurisdictions relating to the privacy and protection of personal data, as well as potential damage to our reputation as a result of our compliance or non-compliance with such requirements;

 

    difficulties in identifying and managing local staff, systems integrators, technology partners, and other third-party vendors and service providers;

 

    diversion of our management’s attention and resources to explore, negotiate, or close acquisitions and to integrate, staff and manage geographically remote operations and employees;

 

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    longer than expected lead times for, or the failure of, an SMB market for our solutions to develop in the countries and regions in which we are opening offices and conducting operations;

 

    our inability to effectively market our solutions to SMBs due to our failure to adapt to local cultural norms, technology standards, billing and collection standards or pricing models;

 

    differing technology practices and needs that we are not able to meet, including an increased demand from our international subscribers that our cloud-based solutions be easily accessible and operational on smartphones and tablets;

 

    difficulties in collecting payments from subscribers or in automatically renewing their contracts with us, especially due to the more limited availability and popularity of credit cards in certain countries;

 

    difficulties in attracting new subscribers, especially in developing countries and regions and those where the Internet infrastructure is still in its early stages;

 

    greater difficulty in enforcing contracts, including our terms of service and other agreements;

 

    management, communication and integration problems resulting from cultural or language differences and geographic dispersion;

 

    sufficiency of qualified labor pools and greater influence of organized labor in various international markets;

 

    competition from companies with international operations, including large international competitors and entrenched local companies;

 

    changes in global currency systems or fluctuations in exchange rates that may increase the volatility of or adversely affect our foreign-based revenue;

 

    compliance with the U.S. Foreign Corrupt Practices Act of 1977, as amended, or the FCPA, economic sanction laws and regulations, including those administered by the U.S. Treasury Department’s Office of Foreign Assets Control, or OFAC, export controls including the U.S. Commerce Department’s Export Administration Regulations and other U.S., non-U.S. and local laws and regulations regarding international and multi-national business operations;

 

    potentially adverse tax consequences, including the complexities of foreign value added tax (or sales, use or other tax) systems, our inadvertent failure to comply with all relevant foreign tax rules and regulations due to our lack of familiarity with the jurisdiction’s tax laws, and restrictions and withholdings on the repatriation of earnings;

 

    uncertain political and economic climates; and

 

    reduced or varied protection for intellectual property rights in some countries.

These factors have caused our international costs of doing business to exceed our comparable domestic costs and have caused the time and expense required to close our international acquisitions to exceed our comparable domestic costs. A negative impact from our international business efforts could adversely affect our business, operating results and financial condition as a whole.

In addition, our ability to expand internationally and attract and retain non-U.S. subscribers may be adversely affected by concerns about the extent to which U.S. governmental and law enforcement agencies may obtain data under the Foreign Intelligence Surveillance Act and Patriot Act and similar laws and regulations. Such non-U.S. subscribers may decide that the privacy risks of storing data with a U.S.-based company outweigh the benefits and opt to seek solutions from a company based outside of the United States. In addition, certain foreign governments may require local storage of their citizens’ data. If we become subject to such requirements, it may require us to increase the number of non-U.S. data centers or servers we maintain, increase our costs or adversely affect our ability to attract, retain or cost-effectively serve non-U.S. subscribers.

We have experienced system, software, Internet, data center and customer support center failures and have not yet implemented a complete disaster recovery plan, and any interruptions, delays or failures in our services could harm our reputation, cause our subscribers to seek reimbursement for services paid for and not received, cause our subscribers to stop referring new subscribers to us, or cause our subscribers to seek to replace us as a provider of their cloud-based and online marketing solutions.

We must be able to operate our applications and systems without interruption. Since our ability to retain and attract subscribers depends on the performance, reliability and availability of our services, as well as in the delivery of our products and services to subscribers, even minor interruptions in our service or losses of data could harm our reputation. Our applications, network, systems, equipment, power supplies, customer support centers and data centers are subject to various points of failure, including:

 

    human error or accidents;

 

    power loss;

 

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    equipment failure;

 

    Internet connectivity downtime;

 

    improper building maintenance by the landlords of the buildings in which our co-located data centers are located;

 

    physical or electronic security breaches (see also “—Security and privacy breaches may harm our business”);

 

    computer viruses;

 

    fire, hurricane, flood, earthquake, tornado and other natural disasters;

 

    water damage;

 

    terrorism;

 

    intentional bad acts, such as sabotage and vandalism;

 

    pandemics; and

 

    failure by us or our vendors to provide adequate service to our equipment.

We have experienced system failures, delays and periodic interruptions in service, or outages, due to factors including power and network equipment failures; storage system failures; power outages; and network configuration failures. In addition, because our cloud-based platform is complex, we have experienced outages when new versions, enhancements and updates to applications, software or systems are released by us or third parties.

We will likely experience future outages that disrupt the operation of our solutions and harm our business due to factors such as these or other factors, including the accidental or intentional actions of Internet users, current and former employees and others; cooling equipment failures; other computer failures; or other factors not currently known to us or that we consider immaterial. While we have experienced increases in subscriber cancellations and decreases in our Net Promoter Score, or NPS, a customer satisfaction metric developed by Bain & Company, following such outages in the past, we cannot be certain these outcomes are entirely attributable to the outages, and we do not believe that such outages have had a material effect on our business, financial condition or results of operations.

Our systems are not fully redundant, and we have not yet implemented a complete disaster recovery plan or business continuity plan. Although the redundancies we do have in place will permit us to respond, at least to some degree, to failures of applications and systems, our data centers are vulnerable in the event of failure. Most of our subscribers are hosted across six U.S.-based data centers, one of which is owned by us and the rest of which are co-located. Our owned data center hosts a significant portion of our subscribers. Accordingly, any failure or downtime in these data center facilities would affect a significant percentage of our subscribers. We do not yet have adequate structures or systems in place to recover from a data center’s severe impairment or total destruction, and recovery from the total destruction or severe impairment of any of these data centers would be extremely difficult and may not be possible at all. Closing any of these data centers without adequate notice could result in lengthy, if not permanent, interruptions in the availability of our solutions and loss of vast amounts of subscriber data.

Our data centers are also susceptible to impairment resulting from electrical power outages due to the amount of power and cooling they require to operate. Since we rely on third parties to provide our data centers with power sufficient to meet our needs, we cannot control whether our data centers will have an adequate amount of electrical resources necessary to meet our subscriber requirements. We attempt to limit exposure to system downtime due to power outages by using backup generators and power supplies. However, these protections may not limit our exposure to power shortages or outages entirely. We also rely on third parties to provide Internet connectivity to our data centers and any discontinuation or disruption to our connectivity could affect our ability to provide services to our subscribers.

Our customer support centers are also vulnerable in the event of failure caused by total destruction or severe impairment. When calling our customer support services, most of our subscribers reach our customer support teams located in one of our six U.S.-based call centers. Our teams in each call center are trained to provide support services for a discrete subset of our brands, and they do not currently have complete capability to route calls from one call center to another call center. Accordingly, if any one of these call centers were to become non-operational due to severe impairment or total destruction, our ability to re-route calls to operational call centers or to provide customer support services to any subscribers of the brand or brands that the non-operational call center had formerly managed may be compromised. A significant portion of our email and chat-based customer support is provided by an India-based support team, which is employed by a third-party service provider. Although our email and chat-based customer support can be re-routed to our own centers, a disruption at our India customer support center could adversely affect our business.

 

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Any of these events could materially increase our expenses or reduce our revenue, damage our reputation, cause our subscribers to seek reimbursement for services paid for and not received, cause our subscribers to stop referring new subscribers to us, and cause us to lose current and potential subscribers, which would have a material adverse effect on our operating results and financial condition. Moreover, the property and business interruption insurance we carry may not have coverage adequate to compensate us fully for losses that may occur.

If we are unable to maintain a high level of subscriber satisfaction, demand for our solutions could suffer.

We believe that our future revenue growth depends on our ability to provide subscribers with quality service that meets our stated commitments, meets or exceeds our subscribers’ expectations and is conducive to our ability to continue to sell new solutions to existing subscribers. We are not always able to provide our subscribers with this level of service, and our subscribers occasionally encounter interruptions in service and other technical challenges, including as a result of outages or human error. If we are unable to provide subscribers with quality service, this may result in subscriber dissatisfaction, billing disputes and litigation, lower than expected renewal rates and impairments to our efforts to sell additional products and services to our subscribers, and we could face damage to our reputation, claims of loss, negative publicity or social media attention, decreased overall demand for our solutions and loss of revenue, any of which could have a negative effect on our business, financial condition and operating results.

In addition, we may from time to time fail to meet the needs of specific subscribers in order to best meet the service expectations of our overall subscriber base. For example, we may suspend a subscriber’s website when it breaches our terms of service, harms other subscribers’ websites or disrupts servers supporting those websites, such as when a cybercriminal installs malware on a subscriber’s website without that subscriber’s authorization or knowledge. Although such service interruptions are not uncommon in a cloud-based or online environment, we risk subscriber dissatisfaction by interrupting one subscriber’s service to prevent further attacks on or data breaches for other subscribers, and this could damage our reputation and have an adverse effect on our business.

We face significant competition for our solutions in the SMB market, which we expect will continue to intensify and which could require us to reduce our selling prices . As a result of such competitive pressures, we may not be able to maintain or improve our competitive position or market share.

The SMB market for cloud-based technologies and online marketing tools is highly competitive and constantly evolving. We expect competition to increase from existing competitors, who are also expanding the variety of solution-based services that they offer to SMBs, as well as potential new market entrants and competitors that may form strategic alliances with other competitors. Some of our competitors may have greater resources, more brand recognition and consumer awareness, more diversified product offerings, greater international scope and larger subscriber bases than we do. As a result, we may not be able to compete successfully against them. If these companies decide to devote greater resources to the development, promotion and sale of their products and services, if the products and services offered by these companies are more attractive to or better meet the evolving needs of SMBs, or if these companies respond more quickly to changing technologies, greater numbers of SMBs may choose to use these competitors for creating an online presence and as a general platform for running online business operations. There are also relatively few barriers to entry in this market, especially for providers of niche services, which often have low capital and operating expenses and the ability to quickly bring products to market that meet specific subscriber needs. Accordingly, as this market continues to develop, we expect the number of competitors to increase. The continued entry of competitors into the markets for cloud-based technologies and online marketing tools, and the rapid growth of some competitors that have already entered these markets, may make it difficult for us to maintain our market position.

 

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In addition, in an attempt to gain market share, competitors may offer more aggressive price discounts or alternative pricing models, such as so-called “freemium” pricing in which a basic offering is provided for free with advanced features provided for a fee, on the services they offer, bundle several services at reduced prices, or increase commissions paid to their referral sources. These pricing pressures may require us to match these discounts and commissions in order to remain competitive, which would reduce our margins or cause us to fail to attract new subscribers that decide to purchase the discounted service offerings of our competitors. As a result of these factors, it is difficult to predict whether we will be able to maintain our average selling prices, pricing models and commissions paid to our referral sources. If we reduce our selling prices, alter our pricing models or increase commissions paid to our referral sources, it may become increasingly difficult for us to compete successfully, our profitability may be harmed and our operating results could be adversely affected.

We must keep up with rapid and ongoing technological change, marketing trends and shifts in consumer demand to remain competitive in a rapidly evolving industry.

The cloud-based technology and online marketing tool industries are characterized by rapid and ongoing technological change, frequent new product and service introductions and evolving industry standards. Our future success will depend on our ability to adapt to rapidly changing technologies, to adapt our solutions to evolving industry standards and consumer needs and to improve the performance and reliability of our applications and services. We must anticipate subscriber needs, commit significant resources to anticipating those needs and offer solutions that meet changing subscriber demands quickly and effectively. We may fail to accurately predict market demand or subscriber preferences, or subscribers may require features and functionality that our current applications and services do not have or that our platform is not able to support. If we fail to develop solutions that satisfy subscriber preferences in a timely and cost-effective manner, our ability to retain existing subscribers and attract new subscribers will be adversely affected, our competitive position will be impaired and we may not achieve our anticipated revenue growth. In order to develop new solutions or enhancements to existing solutions that satisfy subscriber preferences, we may be required to incur significant technology, development, marketing and other expenses, and our revenue and operating results may be adversely affected. In particular, we plan to make substantial marketing and other investments in new product offerings during 2016. If subscriber demand for these products is lower than expected, or if subscribers do not remain on our platform for the anticipated period of time or increase their spending with us at the anticipated rate, we may not realize the expected return on our investments, which could adversely affect our financial results.

In addition, the manner in which we market to our subscribers and potential subscribers must keep pace with technological change, legal requirements, marketing trends and shifts in how our solutions are found, purchased and used by subscribers and potential subscribers. For example, application marketplaces, mobile platforms and new search engines and search methods are changing the way in which consumers find, purchase and use our solutions. If we are not able to take advantage of such technologies or anticipate such trends, if existing technologies or systems, such as the domain name system which directs traffic on the Internet, become obsolete, or if we fail to anticipate and manage technologies that prevent or harm our offerings, such as technology intended to block email marketing, we may be unable to continue to attract new subscribers or sell additional solutions to our existing subscribers.

Our future success will depend on our ability to continue to identify and partner with or acquire third parties who offer and are able to adapt to new technologies and to develop compelling and innovative solutions that can be integrated with our platform and brought to market. If we or our third-party partners are unable to adapt to rapidly changing technologies and develop solutions that meet subscriber requirements, our revenue and operating results may be adversely affected.

If the delivery of customers’ emails is limited or blocked or its customers’ emails are directed to an alternate or “tabbed” section of the recipient’s inbox, customers may cancel their accounts.

Internet Service Providers, or ISPs, can block emails from reaching the intended recipients. While we continually improve our technology and work closely with ISPs to maintain the deliverability rates of our email marketing product, the implementation of new or more restrictive policies by ISPs may make it more difficult to deliver our customers’ emails. In addition, some ISPs have started to categorize as “promotional” emails that originate from email service providers and, as a result, direct them to an alternate or “tabbed” section of the recipient’s inbox. If ISPs materially limit or halt the delivery of our customers’ emails, or if we fail to deliver our email marketing customers’ emails in a manner compatible with ISPs’ email handling or authentication technologies or other policies, or if the open rates of its customers’ emails are negatively impacted by the actions of ISPs to categorize emails, then our email marketing customers may question the effectiveness of our products and cancel their email marketing accounts. This, in turn, could harm our business and financial performance.

Security and privacy breaches may harm our business.

We store and transmit large amounts of sensitive, confidential, personal and proprietary information, including payment card information. Any physical or electronic security breach, virus, accident, employee error, criminal activity or malfeasance, fraudulent service plan order, impersonation scam perpetrated against us, intentional misconduct by cyber criminals or similar intrusion, breach or disruption could result in unauthorized access to, usage or disclosure of, or loss of, confidential information, damage to our

 

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platform, and interruptions, delays or cessation of service to our subscribers, each of which may cause damage to our reputation and result in increased security costs, litigation, regulatory investigations or other liabilities. The risk that these types of events could seriously harm our business is likely to increase as we expand the number of technology solutions and services that we offer and expand our operations in foreign countries.

In addition, many states and countries in which we have subscribers have enacted regulations requiring us to notify subscribers in the event that certain subscriber information is accessed, or believed to have been accessed, without authorization, and in some cases also develop proscriptive policies to protect against such unauthorized access. Such notifications can result in private causes of action being filed against us. Should we experience a loss of protected data, efforts to enhance controls, assure compliance and address penalties imposed by such regulatory regimes could increase our costs.

Organizations generally, and Internet-based organizations in particular, remain vulnerable to targeted attacks aimed at exploiting network and system applications or weaknesses. Techniques used to obtain unauthorized access to, or to sabotage, networks and systems often are not recognized until launched against a target. Cyber criminals are increasingly using powerful new tactics including evasive applications, proxies, tunneling, encryption techniques, vulnerability exploits, buffer overflows, distributed denial of service attacks, or DDoS attacks, botnets and port scans. For example, we are frequently the targets of DDoS attacks in which attackers attempt to block subscribers’ access to our websites. If we are unable to avert a DDoS or other attack for any significant period, we could sustain substantial revenue loss from lost sales and subscriber dissatisfaction. We may not have the resources or technical sophistication to anticipate or prevent rapidly evolving types of cyber-attacks. Moreover, we may not be able to immediately detect that such an attack has been launched, if, for example, unauthorized access to our systems was obtained without our knowledge in preparation for an attack contemplated to commence in the future. Cyber attacks may target us, our subscribers, our partners, banks, credit card processors, delivery services, e-commerce in general or the communication infrastructure on which we depend. We also rely on third parties to provide physical security for our data centers. Any physical security breach to our data centers could result in unauthorized access or damage to our systems.

Our employees, including our employee and contract support agents are often targeted by, and may be vulnerable to, e-mail scams, phishing, social media or similar attacks, as well as social engineering tactics used to perpetrate fraud. We have experienced and may in the future experience security attacks that cause our support agents to divulge confidential information about us or our subscribers, or to introduce viruses, worms or other malicious software programs onto their computers, allowing the perpetrators to, among other things, gain access to our systems or our subscribers’ accounts. Our subscribers may also use weak passwords, accidentally disclose their passwords or store them on a mobile device that is lost or stolen, or otherwise compromise the security of their data, creating the perception that our systems are not secure against third-party access when their accounts are compromised and used maliciously by third parties. In addition, if third parties with which we work, such as vendors or developers, violate applicable laws or our policies, such violations may also put our information and our subscribers’ information at risk and could in turn have an adverse effect on our business and reputation.

If an actual or perceived security breach occurs, the market’s perception of our security measures could be harmed and we could lose sales and current and potential subscribers. We might also be required to expend significant capital and resources to investigate, protect against or address these problems. Any significant violations of data privacy could result in the loss of business, litigation and regulatory investigations and penalties that could damage our reputation and adversely affect our operating results and financial condition. Furthermore, if a high profile security breach occurs with respect to another provider of cloud-based technologies or online marketing tools, our subscribers and potential subscribers may lose trust in the security of these business models generally, which could harm our ability to retain existing subscribers or attract new ones. We cannot guarantee that our backup systems, regular data backups, security protocols, network protection mechanisms and other procedures currently in place, or that may be in place in the future, will be adequate to prevent network and service interruption, system failure, damage to one or more of our systems or data loss in the event of a security breach or attack on our network.

The success of our email marketing products depends on the continued growth and acceptance of email as a communications tool and the related expansion and reliability of the Internet infrastructure . If consumers do not continue to use email or alternative communications tools, such as social media or text messaging, gain popularity, demand for email marketing products may decline.

The future success of our email marketing product depends on the continued and widespread adoption of email as a primary means of communication. Security problems such as “viruses,” “worms” and other malicious programs or reliability issues arising from outages and damage to the Internet infrastructure could create the perception that email is not a safe and reliable means of communication, which could discourage businesses and consumers from using email. Use of email by businesses and consumers also depends on the ability of ISPs to prevent unsolicited bulk email, or “spam,” from overwhelming consumers’ inboxes. In recent years, ISPs have developed new technologies to filter unwanted messages before they reach users’ inboxes. In response, spammers have employed more sophisticated techniques to reach consumers’ inboxes. Although companies in the anti-spam industry have started to address the techniques used by spammers, if security problems become widespread or frequent or if ISPs cannot effectively control

 

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spam, the use of email as a means of communication may decline as consumers find alternative ways to communicate. In addition, if alternative communications tools, such as social media or text messaging, gain widespread acceptance, the need for email may lessen. Any decrease in the use of email would reduce demand for our email marketing product and harm our business.

If we do not maintain a low rate of credit card chargebacks, protect against breach of the credit card information we store and comply with payment card industry standards, we will face the prospect of financial penalties and could lose our ability to accept credit card payments from subscribers, which would have a material adverse effect on our business, financial condition and operating results.

A majority of our revenue is processed through credit card transactions. Under current credit card industry practices, we are liable for fraudulent and disputed credit card transactions because we do not obtain the cardholder’s signature at the time of the transaction, even though the financial institution issuing the credit card may have authorized the transaction. Although we focus on keeping our rate of credit card refunds and chargebacks low, if our refunds or chargebacks increase, our credit card processors could require us to maintain or increase reserves, terminate their contracts with us or decline to serve as credit card processors for new joint ventures or brands, which would have an adverse effect on our financial condition.

We could also incur significant fines or lose our ability to give subscribers the option of using credit cards to fund their payments or pay their fees to us if we fail to follow payment card industry data security standards, even if there is no compromise of subscriber information. Although we endeavor to comply with payment card industry data security standards and do not believe that there has been a compromise of subscriber information, we have not always been in full compliance with these standards. Accordingly, we could be fined, or our services could be suspended, for such failure to comply with payment card industry data security standards, which would cause us to not be able to process payments using credit cards. If we are unable to accept credit card payments, our financial condition, results of operations and cash flows would be adversely affected.

Our failure to limit fraudulent transactions conducted on our websites, such as through the use of stolen credit card numbers, could also subject us to liability or require us to increase reserves with our credit card processors. Under credit card association rules, penalties may be imposed at the discretion of the association. Any such potential penalties would be imposed on our credit card processor by the association. Under our contracts with our card processors, we are required to reimburse the processor for such penalties. Our current level of fraud protection, based on our fraudulent and disputed credit card transaction history, is within the guidelines established by the credit card associations. However, we face the risk that we may fail to maintain an adequate level of fraud protection or that one or more credit card associations may, at any time, assess penalties against us or terminate our ability to accept credit card payments from subscribers, which would have a material adverse effect on our business, financial condition and operating results.

In addition, we could be liable if there is a breach of the credit card or other payment information we store. Online commerce and communications depend on the secure transmission of confidential information over public networks. We rely on encryption and authentication technology that we have developed internally, as well as technology that we license from third parties, to provide security and authentication for the transmission of confidential information, including subscriber credit card numbers. However, we cannot ensure that this technology can prevent breaches of the systems that we use to protect subscriber credit card data. Although we maintain network security insurance, we cannot be certain that our coverage will be adequate for liabilities actually incurred or that insurance will continue to be available to us on reasonable terms, or at all. In addition, some of our third-party partners also collect information from transactions with our customers, and we may be subject to litigation or our reputation may be harmed if our partners fail to protect our subscribers’ information or if they use it in a manner that is inconsistent with our practices.

Data breaches can also occur as a result of non-technical issues. Under our contracts with our card processors, if there is unauthorized access to, or disclosure of, credit card information that we store, we could be liable to the credit card issuing banks for their cost of issuing new cards and related expenses.

Our growing operations in India, use of an India-based service provider and India-based workforce may expose us to risks that could have an adverse effect on our costs of operations and harm our business.

We currently use India-based third-party service providers to provide certain outsourced services to support our U.S.-based operations, including email- and chat-based customer and technical support, billing support, network monitoring and engineering and development services. As our operations grow, we expect to increase our use of these and other India-based outsourced service providers. Although there are cost advantages to operating in India, significant growth in the technology sector in India has increased competition to attract and retain skilled employees and has led to a commensurate increase in compensation costs. In the future, we or our third-party service providers may not be able to hire and retain such personnel at compensation levels consistent with our existing compensation and salary structure in India. In addition, we employ our own India-based workforce. Our use of a workforce in India exposes us to disruptions in the business, political and economic environment in that region. Our operations in India require us to

 

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comply with local laws and regulatory requirements, which are complex and burdensome and of which we may not always be aware, and expose us to foreign currency exchange rate risk. Our Indian operations may also subject us to trade restrictions, reduced or inadequate protection for intellectual property rights, security breaches and other factors that may adversely affect our business. Negative developments in any of these areas could increase our costs of operations or otherwise harm our business.

We have a history of losses and may not be able to maintain profitability.

We have had a net loss in each year since inception through 2015. We had a net loss of $159.2 million for fiscal year 2013, a net loss of $42.8 million for fiscal year 2014 and a net loss of $25.8 million for fiscal year 2015 and we may incur losses in the future. In connection with our acquisitions, we have recorded long-lived assets at fair value. We record amortization expense in each reporting period related to the long-lived assets, which impacts the amount of net loss or income we record in each reporting period

Although we were profitable in the three months ended March 31, 2016, we do not know if we will be able to maintain profitability on a continued basis. We have made and expect to continue to make significant expenditures to develop and expand our business. Our recent growth in revenue and number of subscribers may not be sustainable, and our revenue may be insufficient to maintain profitability. We may incur significant losses in the future for a number of reasons, including interest expense related to our substantial indebtedness, and the other risks described in this report, and we may encounter unforeseen expenses, difficulties, complications and delays and other unknown events.

We may need additional equity, debt or other financing in the future, which we may not be able to obtain on acceptable terms, or at all, and any additional financing may result in restrictions on our operations or substantial dilution to our stockholders.

We may need to raise funds in the future, for example, to develop new technologies, expand our business, respond to competitive pressures, acquire businesses, or respond to unanticipated situations. We may try to raise additional funds through public or private financings, strategic relationships or other arrangements. Although our credit agreement limits our ability to incur additional indebtedness, these restrictions are subject to a number of qualifications and exceptions, and our credit agreement may be amended with the consent of our lenders.

Our ability to obtain debt or equity funding will depend on a number of factors, including market conditions, interest rates, our operating performance and investor interest. Additional funding may not be available to us on acceptable terms or at all. If adequate funds are not available, we may be required to reduce expenditures, including curtailing our growth strategies, foregoing acquisitions or reducing our product development efforts. If we succeed in raising additional funds through the issuance of equity or convertible securities, then the issuance could result in substantial dilution to existing stockholders. If we raise additional funds through the issuance of debt securities or preferred stock, these new securities would have rights, preferences and privileges senior to those of the holders of our common stock. In addition, any preferred equity issuance or debt financing that we may obtain in the future could have restrictive covenants relating to our capital raising activities and other financial and operational matters, which may make it more difficult for us to obtain additional capital and to pursue business opportunities, including potential acquisitions. To the extent any such new indebtedness is secured and is at higher interest rates than on our existing first lien term loan facility, the interest rates on our existing first lien term loan facility could increase as a result of the “most-favored nation” pricing provision in our existing credit agreement. Further, to the extent that we incur additional indebtedness or such other obligations, the risks associated with our substantial leverage described elsewhere in this report, including our possible inability to service our debt, would increase.

Our business depends on establishing and maintaining strong brands . If we are not able to effectively promote our brands, or if the reputation of our brands is damaged, our ability to expand our subscriber base will be impaired and our business and operating results will be harmed.

We market our solutions through various brands, including Bluehost, HostGator, iPage, Domain.com, A Small Orange, MOJO Marketplace, BigRock, ResellerClub, Constant Contact and SinglePlatform, among others.

We believe that establishing and maintaining our brands is critical to our efforts to expand our subscriber base. If we do not continue to build awareness of our brands, we could be placed at a competitive disadvantage to companies whose brands are, or become, more recognizable than ours. To attract and retain subscribers and to promote and maintain our brands in response to competitive pressures, we may have to substantially increase our financial commitment to creating and maintaining distinct brand loyalty among subscribers or eliminate certain of our brands. If subscribers, as well as our third-party referral marketing, distribution and reseller partners, do not perceive our existing solutions to be reliable and of high quality, if we introduce new services or enter into new business ventures that are not favorably received by such parties, or if our brands become associated with any fraudulent or deceptive conduct on the part of our subscribers, the value of our brands could be diminished, thereby decreasing the attractiveness of our solutions to such parties. As a result, our operating results may be adversely affected by decreased brand recognition and harm to our reputation.

 

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In addition, we expect to leverage our current marketing strategy for Constant Contact’s products and services, but our strategy may not be successful. In particular, Constant Contact’s strong brand awareness may be diminished if we reduce or discontinue television and radio advertising in order to pursue the more targeted or success-based marketing methods we typically use for the rest of our business. If this occurs, we may not acquire new Constant Contact customers at the rate that we expect or we may need to incur higher than anticipated marketing expenses to acquire new Constant Contact customers, which could have a material adverse effect on our operating results.

Our success depends in part on our strategic relationships and joint ventures or other alliances with third parties on whom we rely to acquire subscribers and to offer solutions to our subscribers and from which we license intellectual property to develop our own solutions.

In order to expand our business, we plan to continue to rely on third-party relationships and alliances, such as with referrers and promoters of our brands and solutions, as well as with our providers of solutions and services that we offer to subscribers. Identifying, negotiating, documenting and managing relationships with third parties in certain cases requires significant time and resources, and it is possible that we may not be able to devote the time and resources we expect to such relationships. Integrating and customizing third parties’ solutions with our platform also requires us to expend significant time and resources to ensure that each respective solution works with our platform, as well as with our other products and services. If any of the third parties on which we rely fails to perform as expected, breaches or terminates their agreement with us, or becomes engaged in a dispute with us, our reputation could be adversely affected and our business could be harmed.

We rely on third-party referral partners to acquire subscribers. If our third-party referral partners fail to promote our brands or to refer new subscribers to us, fail to comply with regulations, are forced to change their marketing efforts in response to new or existing regulations or cease to be viewed as credible sources of information by our potential subscribers, we may face decreased demand for our solutions and loss of revenue. Some of our third-party partners purchase our solutions and resell them to their customer bases. These partners have the direct contractual relationships with our ultimate subscribers and, therefore, we risk the loss of both our third-party partners and their customers if our services fail to meet expectations or if our partners fail to perform their obligations or deliver the level of service to the ultimate subscriber that we expect.

Our ability to offer domain name services to our subscribers depends on certain third-party relationships. For example, certain of our subsidiaries are accredited by ICANN and various other registries as a domain name registrar. If we fail to comply with domain name registry requirements or if domain name registry requirements change, we could lose our accreditation, be required to increase our expenditures, comply with additional requirements or alter our service offerings, any of which could have a material adverse effect on our business, financial condition or results of operations.

We also have relationships with product partners whose solutions, including site builders, shopping carts and security tools, we offer to our subscribers. A majority of our offerings are provided by third parties. We may be unable to continue our relationship with any of these partners if, for example, they decline to continue to work with us or are acquired by third parties. In such an event, we may not be able to continue to offer these third-party tools to our subscribers or we may be forced to find an alternative that may be inferior to the solution that we had previously offered, which could harm our business and our operating results.

We also rely on software licensed from or hosted by third parties to offer our solutions to our subscribers. In addition, we may need to obtain future licenses from third parties to use intellectual property associated with the development of our solutions, which might not be available to us on acceptable terms, or at all. Any loss of the right to use any software or other intellectual property required for the development and maintenance of our solutions could result in delays in the provision of our solutions until equivalent technology is either developed by us, or, if available, is identified, obtained and integrated. Any errors or defects in third-party software could result in errors or a failure of our solutions which could harm our business and operating results. Further, we cannot be certain that the owners’ rights in their technologies will not be challenged, invalidated or circumvented.

Constant Contact relies on some of its partners to create integrations with third-party applications and platforms used by Constant Contact’s customers. If we fail to encourage these partners to create such integrations or if we do not adequately facilitate these integrations from a technology perspective, demand for Constant Contact products could decrease, which could harm our business and operating results.

We rely on a limited number of data centers to deliver most of our services . If we are unable to renew our data center agreements on favorable terms, or at all, our operating margins and profitability could be adversely affected and our business could be harmed . In addition, our recent purchase of our largest data center subjects us to potential costs and risks associated with real property ownership.

We currently serve most of our subscribers from six data center facilities located in Massachusetts (three), Texas, Utah and California. We own one of our data centers and occupy the remaining data centers pursuant to co-location service agreements with

 

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third-party data center facilities which have built and maintain the co-located data centers for us and other parties. Although we own the servers in these six data centers and engineer and architect the systems upon which our platform runs, we do not control the operation of the facilities we do not own.

The terms of our existing co-located data center agreements vary in length and expire over a period ranging from 2016 through 2021. The owners of these or our other co-located data centers have no obligation to continue such arrangements beyond their current terms, nor are they obligated to renew their agreements with us on terms acceptable to us, or at all.

Our existing co-located data center agreements may not provide us with adequate time to transfer operations to a new facility in the event of early termination or if we were unable to negotiate a short-term transition arrangement or renew these agreements on terms acceptable to us. If we were required to move our equipment to a new facility without adequate time to plan and prepare for such migration, we would face significant challenges due to the technical complexity, risk and high costs of the relocation. Any such migration would result in significant costs for us and significant downtime for large numbers of our subscribers. This could damage our reputation and cause us to lose current and potential subscribers, which would harm our operating results and financial condition.

If we are able to renew the agreements on our existing co-located data center facilities, we expect that the lease rates will be higher than those we pay under our existing agreements. If we fail to increase our revenue by amounts sufficient to offset any increases in lease rates for these facilities, our operating results may be materially and adversely affected.

We currently intend to continue to contract with third-party data center operators, but we could be forced to re-evaluate those plans depending on the availability and cost of data center facilities, the ability to influence and control certain design aspects of the data center, and economic conditions affecting the data center operator’s ability to add additional facilities.

With respect to the data center facility that we own, we are subject to risks, and may incur significant costs, related to our ownership of the facility and the land on which it is located, including costs or risks related to building repairs or upgrades and compliance with various federal, state and local laws applicable to real property owners, including environmental laws.

If our solutions and software contain serious errors or defects, then we may lose revenue and market acceptance and may incur costs to defend or settle claims.

Complex technology platforms, software applications and systems such as ours often contain errors or defects, such as errors in computer code or other systems errors, particularly when first introduced or when new versions, enhancements or updates are released. Because we also rely on third parties to develop many of our solutions, our products and services may contain additional errors or defects as a result of the integration of the third party’s product. Despite quality assurance measures, internal testing and beta testing by our subscribers, we cannot guarantee that our current and future solutions will not be free of serious defects, which could result in lost revenue or a delay in market acceptance.

Since our subscribers use our solutions to, among other things, maintain an online presence for their business, errors, defects or other performance problems could result in damage to our subscribers and their businesses. They could elect to cancel or not to renew their agreements, delay or withhold payments to us, or seek significant compensation from us for the losses they or their businesses suffer. Although our subscriber agreements typically contain provisions designed to limit our exposure to certain claims, existing or future laws or unfavorable judicial decisions could negate or diminish these limitations. Even if not successful, a claim brought against us could be time-consuming and costly and could seriously damage our reputation in the marketplace, making it harder for us to acquire and retain subscribers.

Because we are required to recognize revenue for our subscription-based services over the term of the applicable subscriber agreement, changes in our sales may not be immediately reflected in our operating results . In addition, we may not have adequate reserves in the event that our historical levels of refunds increase, which could adversely affect our liquidity and profitability.

We recognize revenue from our subscribers ratably over the respective terms of their agreements with us in accordance with U.S. generally accepted accounting principles. These contracts are generally for service periods of up to 36 months. Accordingly, increases in sales during a particular period do not translate into corresponding increases in revenue during that same period, and a substantial portion of the revenue that we recognize during a quarter is derived from deferred revenue from our agreements with subscribers that we entered into during previous quarters. As a result, we may not generate net earnings despite substantial sales activity during a particular period, since we are not allowed under applicable accounting rules to recognize all of the revenue from these sales immediately, and because we are required to record a significant portion of our related operating expenses during that period. Conversely, the existence of substantial deferred revenue may prevent deteriorating sales activity from becoming immediately apparent in our reported operating results.

 

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In connection with our domain registration services, as a registrar, we are required under our agreements with domain registries to prepay the domain registry for the term for which a domain is registered. We recognize this prepayment as an asset on our consolidated balance sheet and record domain revenue and the domain registration expense ratably over the term that a domain is registered. This cash payment to the domain registry may lead to fluctuations in our liquidity that is not immediately reflected in our operating results.

In addition, our standard terms of service permit our subscribers to seek refunds from us in certain instances, and we maintain reserves to provide such refunds. The amount of such reserves is based on the amount of refunds that we have provided in the past. If our actual level of refund claims exceeds our estimates and our refund reserves are not adequate to cover such claims, our liquidity or profitability could be adversely affected. Furthermore, if we experience an unexpected decline in our revenue, we may not be able to adjust spending in a timely manner to compensate for such shortfall, and any significant shortfall in revenue relative to planned expenditures could adversely affect our business and operating results.

We depend on the experience and expertise of our senior management team, and the loss of any member of our senior management team could have an adverse effect on our business, financial condition and operating results.

Our success and future performance depends in significant part upon the continued service of our senior management team, particularly Hari Ravichandran, our founder and chief executive officer. The members of our senior management team are not contractually obligated to remain employed by us. Accordingly, and in spite of our efforts to retain our senior management team with long-term equity incentives, any member of our senior management team could terminate his or her employment with us at any time and go to work for one of our competitors after the expiration of his or her non-compete period. The replacement of members of our senior management team likely would involve significant time and expense, and the loss of any member of our senior management team could significantly delay, prevent the achievement of or make it more difficult for us to pursue and execute on our business objectives, and could have an adverse effect on our business, financial condition and operating results.

Our growth will be adversely affected if we cannot continue to successfully retain, hire, train and manage our key employees.

Our ability to successfully pursue our growth strategy will depend on our ability to attract, retain and motivate key employees across our business. In particular, we are dependent on our platform and software engineers, those who manage our sales and service employees, and, as we grow internationally, those employees managing our operations outside of the United States. We face intense competition for these and other employees from numerous technology, software and manufacturing companies, and we cannot ensure that we will be able to attract, integrate or retain additional qualified employees in the future or at compensation levels consistent with our existing compensation and salary structure. In particular, candidates making employment decisions, particularly in high-technology industries, often consider the value of any equity they may receive in connection with their employment. As a result, any significant volatility in the market price of our common stock may adversely affect our ability to attract or retain highly skilled engineers and marketing personnel. In addition, we invest significant time and expense in training our employees, which increases their value to competitors who may seek to recruit them.

If we are unable to attract new employees and retain our current employees, we may not be able to develop and maintain our services at the same levels as our competitors, and we may therefore lose subscribers and market share. Our failure to attract and retain qualified individuals could have an adverse effect on our ability to execute on our business objectives and, as a result, our ability to compete could decrease, our operating results could suffer and our revenue could decrease.

We are subject to governmental regulation and other legal obligations, particularly related to privacy, data protection and information security, and we are subject to consumer protection laws that regulate our marketing practices and prohibit unfair or deceptive acts and practices. Our actual or perceived failure to comply with such obligations could harm our business. Compliance with such laws could also impair our efforts to maintain and expand our subscriber base and provide certain of our product offerings, and thereby decrease our revenue.

The U.S. Federal Trade Commission, or FTC, and various state and local governments and agencies regularly use their authority under laws prohibiting unfair and deceptive marketing and trade practices to investigate and penalize companies for practices related to the collection, use, handling, disclosure, and security of personal data of U.S. consumers. In addition, in connection with the marketing and advertisement of our products and services by us or our affiliates, we could be the target of claims relating to false or deceptive advertising or marketing practices, including under the auspices of the FTC and state consumer protection statutes.

In the European Union, or EU, and in other jurisdictions outside of the United States, we could be the target of similar claims under consumer protection laws, regulation of cloud services, ecommerce and distance selling regulation, advertising regulation, unfair competition rules or similar legislation. Online digital services may be subject to increased scrutiny in the near future given their rapid growth in recent years. For example, on December 1, 2015, the UK Competition and Markets Authority, or the CMA,

 

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announced that it is conducting a review of compliance with UK consumer protection laws in the cloud storage sector. As part of that effort, the CMA contacted a number of cloud storage companies, including our UK subsidiary, JDI Backup Ltd, or JDI, requesting information be provided on a voluntary basis. The CMA’s review could result in enforcement action, requests for voluntary change in marketing and business practices and/or new guidance for the cloud storage industry, among others.

If we are found to have breached any consumer protection, ecommerce and distance selling, advertising, unfair competition laws or similar legislation in any country or any laws regulating cloud services, we may be subject to enforcement actions that require us to change our business practices in a manner which may negatively impact revenue, as well as litigation, fines, penalties and adverse publicity that could cause our subscribers to lose trust in us, which could have an adverse effect on our reputation and business in a manner that harms our financial position. We also rely on third parties to provide marketing and advertising of our products and services, and we could be liable for, or face reputational harm as a result of, their marketing practices if, for example, they fail to comply with applicable statutory and regulatory requirements.

We collect personally identifiable information and other data from our subscribers and prospective subscribers. We use this information to provide services to our subscribers, to support, expand and improve our business and, subject to each subscriber’s or prospective subscriber’s right to decline or opt out, we may use this information to market other products and services to them. We may also share subscribers’ personally identifiable information with certain third parties as authorized by the subscriber or as described in the applicable privacy policy.

The U.S. federal and various state and foreign governments have adopted or proposed guidelines or rules for the collection, distribution, use and storage of personal information of individuals, and the FTC and many state attorneys general are applying federal and state consumer protection laws to impose standards for the online collection, use and dissemination of data. However, these obligations may be interpreted and applied in a manner that is inconsistent from one jurisdiction to another and may conflict with other requirements or our practices. Any failure or perceived failure by us to comply with privacy or security laws, policies, legal obligations or industry standards or any security incident that results in the unauthorized release or transfer of personally identifiable information or other subscriber data may result in governmental enforcement actions, litigation, fines and penalties and/or adverse publicity and could cause our subscribers to lose trust in us, which could have an adverse effect on our reputation and business.

In addition, several foreign countries and governmental bodies, including the countries of the EU and Canada, have laws and regulations dealing with the collection and use of personal data obtained from their residents, which are often more restrictive than those in the United States. Laws and regulations in these jurisdictions apply broadly to the collection, use, storage, disclosure and security of personal information that identifies or may be used to identify an individual, such as names, contact information, and, in some jurisdictions, certain unique identifiers.

The data privacy regime in the EU includes certain directives which, among other things, require EU member states to regulate the processing and movement of personal data, marketing and the use of cookies. Each EU member state has transposed the requirements of these directives into its own national data privacy regime, and therefore the laws differ from jurisdiction to jurisdiction.

Future laws or regulations, or modifications to existing laws or regulations, could impair our ability to collect and/or use user information that we use to provide targeted advertising to our users, thereby impairing our ability to maintain and grow our subscriber base and increase revenue. Future restrictions on the collection, use, sharing or disclosure of our subscribers’ data or additional requirements for obtaining the consent of subscribers for the use and disclosure of such information could require us to modify our solutions and features, possibly in a material manner, and could limit our ability to develop new services and features.

For example, within the EU, legislators agreed upon the text of a new EU-wide General Data Protection Regulation, or GDPR, in December 2015 that is expected to come into effect in early 2018 and will replace the data protection laws of each EU member state. The GDPR will implement more stringent operational requirements for processors and controllers of personal data, including, for example, expanded disclosures about how personal information is to be used, limitations on retention of information, increased requirements to erase an individual’s information upon request, mandatory data breach notification requirements and higher standards for data controllers to demonstrate that they have obtained valid consent for certain data processing activities. It also significantly increases penalties for non-compliance. If our privacy or data security measures fail to comply with applicable current or future laws and regulations, we may be subject to litigation, regulatory investigations, enforcement notices requiring us to change the way we use personal data or our marketing practices, fines or other liabilities, as well as negative publicity and a potential loss of business. Moreover, if future laws and regulations limit our subscribers’ or prospective subscribers’ ability to use and share personal data or our ability to store, process and share personal data, demand for our solutions could decrease, our costs could increase, and our business, results of operations and financial condition could be harmed.

 

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In recent years, U.S. and European lawmakers and regulators have expressed concern over the use of third-party cookies, web beacons and similar technology for online behavioral advertising. In the EU, informed consent is required for the placement of a cookie on a user’s device. Any failure by us to comply with applicable requirements may result in governmental enforcement actions, litigation, fines and penalties or adverse publicity which could have an adverse effect on our reputation and business. Regulation of cookies and web beacons may lead to broader restrictions on our research activities, including efforts to understand users’ Internet usage. Such regulations may have a chilling effect on businesses, such as ours, that collect and use online usage information in order to attract and retain customers and may increase the cost of maintaining a business that collects or uses online usage information, increase regulatory scrutiny and increase the potential for civil liability under consumer protection laws. In response to marketplace concerns about the usage of third-party cookies and web beacons to track user behaviors, providers of major browsers have included features that allow users to limit the collection of certain data in general or from specified websites, and some regulatory authorities have been advocating the development of browsers that block cookies by default. These developments could impair our ability to collect user information that helps us provide more targeted advertising to our users. If such technology is widely adopted, it could adversely affect our business, given our use of cookies and similar technologies to target our marketing.

Furthermore, the U.S. Controlling the Assault of Non Solicited Pornography and Marketing Act of 2003, or CAN SPAM Act, establishes certain requirements for commercial email messages and specifies penalties for the transmission of commercial email messages that are intended to deceive the recipient as to source or content. The CAN SPAM Act, among other things, obligates the sender of commercial emails to provide recipients with the ability to opt out of receiving future emails from the sender. In addition, some states have passed laws regulating commercial email practices that are significantly more punitive and difficult to comply with than the CAN SPAM Act, particularly Utah and Michigan, which have enacted do-not-email registries listing minors who do not wish to receive unsolicited commercial email that markets certain covered content, such as adult or other harmful products. Some portions of these state laws may not be pre-empted by the CAN SPAM Act. The ability of our subscribers’ customers to opt out of receiving commercial emails may minimize the effectiveness of our products, particularly Constant Contact’s email marketing product. Moreover, non-compliance with the CAN SPAM Act carries significant financial penalties. If we were found to be in violation of the CAN SPAM Act, applicable state laws not pre-empted by the CAN SPAM Act, or similar foreign laws regulating the distribution of commercial email, whether as a result of violations by our subscribers or if we were deemed to be directly subject to and in violation of these requirements, we could be required to pay penalties, which would adversely affect our financial performance and significantly harm our business, and our reputation would suffer. We also may be required to change one or more aspects of the way we operate our business, which could impair our ability to attract and retain subscribers or could increase our operating costs.

We rely on third parties to carry out a number of services for us, including processing personal data on our behalf, and while we enter into contractual arrangements to ensure that they only process such data according to our instructions and have sufficient security measures in place, any security breach or non-compliance with our contractual terms or breach of applicable law by such third parties could result in governmental enforcement actions, litigation, fines and penalties or adverse publicity and could cause our subscribers to lose trust in us, which could have an adverse impact on our reputation and business.

New laws, regulations or standards or new interpretations of existing laws, regulations or standards, including those in the areas of data security, data privacy, consumer protection and regulation of ISPs, could require us to incur additional costs and restrict our business operations. In addition, there is a risk that we could be held subject to legislation in countries where we reasonably thought the laws did not apply to us. Failure by us to comply with applicable requirements may result in governmental enforcement actions, litigation, fines and penalties or adverse publicity, which could have an adverse effect on our reputation and business.

Failure to adequately protect and enforce our intellectual property rights could substantially harm our business and operating results.

We have devoted substantial resources to the development of our intellectual property, proprietary technologies and related processes. In order to protect our intellectual property, proprietary technologies and processes, we rely upon a combination of trademark, patent and trade secret law, as well as confidentiality procedures and contractual restrictions. These afford only limited protection, may not prevent disclosure of confidential information, may not provide an adequate remedy in the event of misappropriation or unauthorized disclosure, and may not now or in the future provide us with a competitive advantage. Despite our efforts to protect our intellectual property rights, unauthorized parties, including employees, subscribers and third parties, may make unauthorized or infringing use of our products, services, software and other functionality, in whole or in part, or obtain and use information that we consider proprietary.

 

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Policing our proprietary rights and protecting our brands and domain names is difficult and costly and may not always be effective. In addition, we may need to enforce our rights under the laws of countries that do not protect proprietary rights to as great an extent as do the laws of the United States and any changes in, or unexpected interpretations of, the intellectual property laws in any country in which we operate may compromise our ability to enforce our intellectual property rights. To the extent we expand our international activities, our exposure to unauthorized copying and use of our trademarks, products and proprietary information may increase.

We have registered, or applied to register, the trademarks associated with several of our leading brands in the United States and in certain other countries. Competitors may have adopted, and in the future may adopt, service or product names similar to ours, which could impede our ability to build our brands’ identities and possibly lead to confusion. In addition, there could be potential trade name or trademark infringement claims brought by owners of other registered trademarks or trademarks that incorporate variations of the terms or designs of one of our trademarks.

Litigation or proceedings before the U.S. Patent and Trademark Office or other governmental authorities and administrative bodies in the United States and abroad may be necessary to enforce our intellectual property rights or to defend against claims of infringement or invalidity. Such litigation or proceedings could be costly, time-consuming and distracting to our management, result in a diversion of resources, the impairment or loss of portions of our intellectual property, and have a material adverse effect on our business and operating results. There can be no assurance that our efforts to enforce or protect our proprietary rights will be adequate or that our competitors will not independently develop similar technology. In addition, the legal standards relating to the validity, enforceability and scope of protection of intellectual property rights on the Internet are uncertain and still evolving. Our failure to meaningfully establish and protect our intellectual property could result in substantial costs and diversion of resources and could substantially harm our business and operating results.

We could incur substantial costs as a result of any claim of infringement of another party’s intellectual property rights.

In recent years, there has been significant litigation in the United States and abroad involving patents and other intellectual property rights. Companies providing Internet-based products and services are increasingly bringing and becoming subject to suits alleging infringement of proprietary rights, particularly patent rights, and to the extent we face increasing competition and become increasingly visible as a publicly-traded company, or if we become more successful, the possibility of intellectual property infringement claims may increase. In addition, our exposure to risks associated with the use of intellectual property may increase as a result of acquisitions that we make or our use of software licensed from or hosted by third parties, as we have less visibility into the development process with respect to such technology or the care taken to safeguard against infringement risks. Third parties may make infringement and similar or related claims after we have acquired or licensed technology that had not been asserted prior to our acquisition or license.

Many companies are devoting significant resources to obtaining patents that could affect many aspects of our business. Since we do not have a significant patent portfolio, this may prevent us from deterring patent infringement claims, and our competitors and others may now and in the future have significantly larger and more mature patent portfolios than we have.

We have filed several patent applications in the United States and foreign counterpart filings for some of those applications. Although some of these applications have issued to registration, we cannot assure you that patents will issue from every patent application, or that we will prosecute every application to registration, that patents that issue from our applications will give us the protection that we seek, or that any such patents will not be challenged, invalidated or circumvented. Any patents that may issue in the future from our pending or future patent applications may not provide sufficiently broad protection and may not be enforceable in actions against alleged infringers.

The risk of patent litigation has been amplified by the increase in certain third parties, so-called “non-practicing entities,” whose sole business is to assert patent claims and against which our own intellectual property portfolio may provide little deterrent value. We could incur substantial costs in prosecuting or defending any intellectual property litigation and we have incurred such costs in the past. If we sue to enforce our rights or are sued by a third party that claims that our solutions infringe its rights, the litigation could be expensive and could divert our management’s time and attention. Even a threat of litigation could result in substantial expense and time.

Furthermore, because of the substantial amount of discovery required in connection with intellectual property litigation, there is a risk that some of our confidential information could be compromised by disclosure. In addition, during the course of any such litigation, there could be public announcements of the results of hearings, motions or other interim proceedings or developments. If securities analysts or investors perceive these results to be negative, it could have a substantial adverse effect on the price of our common stock.

 

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Any intellectual property litigation to which we might become a party, or for which we are required to provide indemnification, may require us to do one or more of the following:

 

    cease selling or using solutions that incorporate the intellectual property that our solutions allegedly infringe;

 

    make substantial payments for legal fees, settlement payments or other costs or damages;

 

    obtain a license or enter into a royalty agreement, which may not be available on reasonable terms or at all, to sell or use the relevant technology; or

 

    redesign the allegedly infringing solutions to avoid infringement, which could be costly, time-consuming or impossible.

If we are required to make substantial payments or undertake any of the other actions noted above as a result of any intellectual property infringement claims against us, our business or operating results could be harmed.

In addition, some of our agreements with partners and others require us to indemnify those parties for third-party intellectual property infringement claims, which would increase the cost to us resulting from an adverse ruling on any such claim.

Our use of “open source” software could adversely affect our ability to sell our services and subject us to possible litigation.

We use open source software, such as MySQL and Apache, in providing a substantial portion of our solutions, and we may incorporate additional open source software in the future. Such open source software is generally licensed by its authors or other third parties under open source licenses. If we fail to comply with these licenses, we may be subject to certain conditions, including requirements that we offer our solutions that incorporate the open source software for no cost; that we make available source code for modifications or derivative works we create based upon, incorporating or using the open source software; and/or that we license such modifications or derivative works under the terms of the particular open source license. In addition, if a third-party software provider has incorporated open source software into software that we license from such provider, we could be required to disclose any of our source code that incorporates or is a modification of such licensed software. If an author or other third party that distributes such open source software were to allege that we had not complied with the conditions of one or more of these licenses, we could be required to incur significant legal expenses defending such allegations and could be subject to significant damages, enjoined from the sale of our solutions that contained the open source software, and required to comply with the foregoing conditions, which could disrupt the distribution and sale of some of our solutions. In addition, there have been claims challenging the ownership of open source software against companies that incorporate open source software into their products. As a result, we could be subject to suits by parties claiming ownership of what we believe to be open source software. Such litigation could be costly for us to defend, have a negative effect on our operating results and financial condition or require us to devote additional research and development resources to change our products.

We could face liability, or our reputation might be harmed, as a result of the activities of our subscribers, the content of their websites, the data they store on our servers or the emails that they send.

Our role as a provider of cloud-based solutions, including website hosting services, domain registration services and email marketing, may subject us to potential liability for the activities of our subscribers on or in connection with their websites or domain names or for the data they store on or send using our servers. Although our subscriber terms of use prohibit illegal use of our services by our subscribers and permit us to take down websites or take other appropriate actions for illegal use, subscribers may nonetheless engage in prohibited activities or upload or store content with us in violation of applicable law or the subscriber’s own policies, which could subject us to liability.

Several U.S. federal statutes may apply to us with respect to various subscriber activities:

 

    The Digital Millennium Copyright Act of 1998, or DMCA, provides recourse for owners of copyrighted material who believe that their rights under U.S. copyright law have been infringed on the Internet. Under the DMCA, based on our current business activity as an online service provider that does not monitor, own or control website content posted by our subscribers, we generally are not liable for infringing content posted by our subscribers or other third parties, provided that we follow the procedures for handling copyright infringement claims set forth in the DMCA. Generally, if we receive a proper notice from, or on behalf of, a copyright owner alleging infringement of copyrighted material located on websites we host, and we fail to expeditiously remove or disable access to the allegedly infringing material or otherwise fail to meet the requirements of the safe harbor provided by the DMCA, the copyright owner may seek to impose liability on us. Technical mistakes in complying with the detailed DMCA take-down procedures could subject us to liability for copyright infringement.

 

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    The Communications Decency Act of 1996, or CDA, generally protects interactive computer service providers such as us, from liability for certain online activities of their customers, such as the publication of defamatory or other objectionable content. As an interactive computer services provider, we do not monitor hosted websites or prescreen the content placed by our subscribers on their sites. Accordingly, under the CDA, we are generally not responsible for the subscriber-created content hosted on our servers. However, the CDA does not apply in foreign jurisdictions and we may nonetheless be brought into disputes between our subscribers and third parties which would require us to devote management time and resources to resolve such matters and any publicity from such matters could also have an adverse effect on our reputation and therefore our business.

 

    In addition to the CDA, the Securing the Protection of our Enduring and Established Constitutional Heritage Act, or the SPEECH Act, provides a statutory exception to the enforcement by a U.S. court of a foreign judgment that is less protective of free speech than the United States. Generally, the exception applies if the law applied in the foreign court did not provide at least as much protection for freedom of speech and press as would be provided by the First Amendment of the U.S. Constitution or by the constitution and law of the state in which the U.S. court is located, or if no finding of a violation would be supported under the First Amendment of the U.S. Constitution or under the constitution and law of the state in which the U.S. court is located. Although the SPEECH Act may protect us from the enforcement of foreign judgments in the United States, it does not affect the enforceability of the judgment in the foreign country that issued the judgment. Given our international presence, we may therefore, nonetheless, have to defend against or comply with any foreign judgments made against us, which could take up substantial management time and resources and damage our reputation.

Although these statutes and case law in the United States have generally shielded us from liability for subscriber activities to date, court rulings in pending or future litigation, or future legislative or regulatory actions, may narrow the scope of protection afforded us under these laws. Several court decisions arguably have already narrowed the scope of the immunity provided to interactive computer services in the United States under the CDA. In addition, laws governing these activities are unsettled in many international jurisdictions, or may prove difficult or impossible for us to comply with in some international jurisdictions. Also, notwithstanding the exculpatory language of these bodies of law, we may be embroiled in complaints and lawsuits which, even if ultimately resolved in our favor, add cost to our doing business and may divert management’s time and attention. Finally, other existing bodies of law, including the criminal laws of various states, may be deemed to apply or new statutes or regulations may be adopted in the future, any of which could expose us to further liability and increase our costs of doing business.

In addition, our email marketing subscribers could also use our email marketing products or website to transmit negative messages or website links to harmful applications, reproduce and distribute copyrighted material or the trademarks of others without permission, or report inaccurate or fraudulent data or information. Any such use of our email marketing products could damage our reputation and we could face claims for damages, copyright or trademark infringement, defamation, negligence or fraud. Moreover, our email marketing customers’ promotion of their products and services through our email marketing products may not comply with federal, state and foreign laws.

We cannot predict whether our role in facilitating these activities would expose us to liability under these laws. Even if claims asserted against us do not result in liability, we may incur substantial costs in investigating and defending such claims. If we are found liable for our customers’ activities, we could be required to pay fines or penalties, redesign business methods or otherwise expend resources to remedy any damages caused by such actions and to avoid future liability.

We may face liability for, or become involved in, disputes in connection with ownership or control of subscriber accounts, domain names or email contact lists or in connection with domain names we own.

As a provider of cloud-based solutions, including as a registrar of domain names and related services, we from time to time become aware of disputes over ownership or control of subscriber accounts, websites or domain names. For example, disputes may arise as a result of a subscriber engaging a webmaster or other third party to help set up a web hosting account, register or renew a domain name, build a website, upload content, or set up email or other services.

 

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We could face potential claims of tort law liability for our failure to renew a subscriber’s domain, and we have faced such liability in the past. We could also face potential tort law liability for our role in the wrongful transfer of control or ownership of accounts, websites or domain names. The safeguards and procedures we have adopted may not be successful in insulating us against liability from such claims in the future. In addition, we face potential liability for other forms of account, website or domain name “hijacking,” including misappropriation by third parties of subscriber accounts, websites or domain names and attempts by third parties to operate accounts, websites or domain names or to extort the subscriber whose accounts, websites or domain names were misappropriated. Furthermore, our risk of incurring liability for a security breach on or in connection with a subscriber account, website or domain name would increase if the security breach were to occur following our sale to a subscriber of an SSL certificate that proved ineffectual in preventing it. Finally, we are exposed to potential liability as a result of our domain privacy service, wherein the identity and contact details for the domain name registrant are masked. Although our terms of service reserve the right to provide the underlying WHOIS information and/or to cancel privacy services on domain names giving rise to domain name disputes, including when we receive reasonable evidence of an actionable harm, the safeguards we have in place may not be sufficient to avoid liability, which could increase our costs of doing business.

Occasionally a subscriber may register a domain name that is identical or similar to another party’s trademark or the name of a living person. Disputes involving registration or control of domain names are often resolved through the Uniform Domain Name Dispute Resolution Policy, or UDRP, ICANN’s administrative process for domain name dispute resolution, or through litigation under the Anticybersquatting Consumer Protection Act, or ACPA, or under general theories of trademark infringement or dilution. The UDRP generally does not impose liability on registrars, and the ACPA provides that registrars may not be held liable for registering or maintaining a domain name absent a showing of bad faith, intent to profit or reckless disregard of a court order by the registrar. However, we may face liability if we fail to comply in a timely manner with procedural requirements under these rules. In addition, these processes typically require at least limited involvement by us and, therefore, increase our costs of doing business. Moreover, as the owner of domain name portfolios containing domains that we are providing for resale, we may face liability if one or more domain names in our portfolios is alleged to violate another party’s trademark. While we screen the domains we acquire to mitigate the risk of third-party claims of trademark infringement, we may nonetheless inadvertently register or acquire domains that infringe or allegedly infringe third-party rights. Moreover, advertisements displayed on websites associated with domains registered by us may contain allegedly infringing content placed by third parties. As a result, our involvement in domain name disputes may increase in the future.

We are subject to export controls and economic sanctions laws that could impair our ability to compete in international markets and subject us to liability if we are not in full compliance with applicable laws.

Our business activities are subject to various restrictions under U.S. export controls and trade and economic sanctions laws, including the U.S. Commerce Department’s Export Administration Regulations and economic and trade sanctions regulations maintained by OFAC. Failure to comply with these laws and regulations could subject us to civil or criminal penalties, government investigations, and reputational harm. In addition, if our third-party resellers fail to comply with these laws and regulations in their dealings, we could face potential liability or penalties for violations. Furthermore, U.S. export control laws and economic sanctions laws prohibit certain transactions with U.S. embargoed or sanctioned countries, governments, persons and entities.

Although we take precautions and have implemented, and continue to seek to enhance, compliance measures to prevent transactions with U.S. sanction targets, from time to time we have identified, and we expect to continue to identify, instances of non-compliance with these laws, rules and regulations and transactions which we are required to block and report to OFAC. In addition, as a result of our acquisition activities, we have acquired, and it is likely that we will continue to acquire, companies for which we could face potential liability or penalties for violations if they have not implemented sufficient compliance measures to prevent transactions with U.S. sanction targets. Until we are able to fully integrate our compliance processes into the operations of such acquired companies, we are at an increased risk of transacting business with U.S. sanction targets. Our failure to comply with these laws, rules and regulations could result in negative consequences to us, including government investigations, penalties and reputational harm.

Changes in our solutions or changes in export and import regulations may create delays in the introduction and sale of our solutions in international markets, prevent our subscribers with international operations from deploying our solutions or, in some cases, prevent the export or import of our solutions to certain countries, governments or persons altogether. Any change in export or import regulations, shift in the enforcement or scope of existing regulations, or change in the countries, governments, persons or technologies targeted by such regulations, could result in decreased use of our solutions or decreased ability to export or sell our solutions to existing or potential subscribers with international operations. Any decreased use of our solutions or limitation on our ability to export or sell our solutions could adversely affect our business, financial condition and operating results.

 

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Due to the global nature of our business, we could be adversely affected by violations of anti-bribery laws.

The global nature of our business requires us to comply with laws and regulations that prohibit bribery and corruption anywhere in the world. The FCPA, the U.K. Bribery Act 2010, or the Bribery Act, and similar anti-bribery laws in other jurisdictions where we do business generally prohibit companies and their intermediaries from making improper payments to government officials and other persons for the purpose of obtaining or retaining business or an improper business advantage. In addition, the FCPA requires public companies to maintain records that accurately and fairly represent their transactions and have an adequate system of internal accounting controls. We currently operate, and plan to expand our operations, in areas of the world that have a reputation for heightened risks of corruption and, in certain circumstances, compliance with anti-bribery laws may conflict with local customs and practices. We operate in several countries and sell our products to subscribers around the world, which requires our employees and business partners acting on our behalf to comply with all laws, including anti-corruption laws. In addition, changes in laws could result in increased regulatory requirements and compliance costs which could adversely affect our business, financial condition and results of operations. We cannot assure that our employees, business partners or other agents will not engage in prohibited conduct and expose us to the risk of liability under the FCPA, the Bribery Act, or other anti-bribery laws. If we are found to be in violation of the FCPA, the Bribery Act or other anti-bribery laws, we could suffer criminal and civil penalties, other sanctions, and reputational damage, which could have a material adverse effect on our business.

Adverse economic conditions in the United States and international economies could harm our operating results.

Unfavorable general economic conditions, such as a recession or economic slowdown in the United States or in one or more of our other major markets, could adversely affect the affordability of, and demand for, our solutions. The national and global economic downturn in recent years affected many sectors of the economy and resulted in, among other things, declines in overall economic growth, consumer and corporate confidence and spending; increases in unemployment rates; and uncertainty about economic stability. Changing macroeconomic conditions may affect our business in a number of ways, making it difficult to accurately forecast and plan our future business activities. In particular, SMB spending patterns are difficult to predict and are sensitive to the general economic climate, the economic outlook specific to the SMB industry, the SMB’s level of profitability and debt and overall consumer confidence. Our solutions may be considered discretionary by many of our current and potential subscribers and may be dependent upon levels of consumer spending. As a result, resellers and consumers considering whether to purchase our solutions may be influenced by macroeconomic factors that affect SMB and consumer spending.

To the extent conditions in the economy deteriorate, our business could be harmed as subscribers may reduce or postpone spending and choose to discontinue our solutions, decrease their service level, delay subscribing for our solutions or stop purchasing our solutions all together. In addition, our efforts to attract new subscribers may be adversely affected. Weakening economic conditions may also adversely affect third parties with which we have entered into relationships and upon which we depend in order to grow our business, which could detract from the quality or timeliness of the products or services such parties provide to us and could adversely affect our reputation and relationships with our subscribers.

In uncertain and adverse economic conditions, decreased consumer spending is likely to result in a variety of negative effects such as reduction in revenue, increased costs, lower gross margin percentages and recognition of impairments of assets, including goodwill and other intangible assets. Uncertainty and adverse economic conditions may also lead to a decreased ability to collect payment for our solutions and services due primarily to a decline in the ability of our subscribers to use or access credit, including through credit cards and PayPal, which is how most of our subscribers pay for our services. We also expect to continue to experience volatility in foreign exchange rates, which could adversely affect the amount of expenses we incur and the revenue we record in future periods. If any of the above risks are realized, we may experience a material adverse effect on our business, financial condition and operating results.

Impairment of goodwill and other intangible assets would result in a decrease in earnings.

Current accounting rules provide that goodwill and other intangible assets with indefinite useful lives may not be amortized, but instead must be tested for impairment at least annually. These rules also require that intangible assets with definite useful lives be amortized over their respective estimated useful lives to their estimated residual values, and reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of such assets may not be recoverable. We have substantial goodwill and other intangible assets, and we would be required to record a significant charge to earnings in our financial statements during the period in which any impairment of our goodwill or intangible assets is determined. Any impairment charges or changes to the estimated amortization periods could have a material adverse effect on our financial results.

 

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Risks Related to Our Substantial Indebtedness

Our substantial level of indebtedness could materially and adversely affect our financial condition.

We now have, and expect to continue to have, significant indebtedness that could result in a material and adverse effect on our business. As of March 31, 2016, we had approximately $2,028.4 million of aggregate indebtedness, net of original issue discounts of $28.4 million and deferred financing costs of $45.7 million. Under our first lien term loan facility and our incremental first lien term loan facility entered into in connection with the acquisition of Constant Contact, we are required to repay approximately $5.3 million and $3.7 million, respectively, of principal at the end of each quarter and are required to pay accrued interest upon the maturity of each interest accrual period, which totaled $52.2 million for the year ended December 31, 2015 and $15.6 million for the three months ended March 31, 2016, and which we currently estimate will be $16.7 million and $11.1 million, respectively, for each remaining fiscal quarter for 2016. The interest accrual periods under our Senior Credit Facilities are typically three months in duration. The actual amounts of our debt servicing payments vary based on the amounts of indebtedness outstanding, whether we borrow on a LIBOR or base rate basis, the applicable interest accrual periods and the applicable interest rates, which vary based on prescribed formulas.

We may be able to incur substantial additional debt in the future. The terms of the Senior Credit Facilities and the indenture governing the Notes permit us to incur additional debt subject to certain conditions. This high level of debt could have important consequences, including:

 

    making it more difficult for us to make payments on our indebtedness;

 

    increasing our vulnerability to general adverse financial, business, economic and industry conditions, as well as other factors that are beyond our control;

 

    requiring us to dedicate a substantial portion of our cash flow from operations to payments on our indebtedness, thereby reducing the availability of our cash flow to fund working capital, capital expenditures, acquisitions, research and development efforts and other general corporate purposes;

 

    limiting our flexibility in planning for, or reacting to, changes in our business and the industry in which we operate and placing us at a disadvantage compared to our competitors that are less highly leveraged;

 

    restricting our ability to pay dividends on our capital stock or redeem, repurchase or retire our capital stock or indebtedness;

 

    limiting our ability to borrow additional funds;

 

    exposing us to the risk of increased interest rates as certain of our borrowings are, and may in the future be, at variable interest rates;

 

    requiring us to sell assets or incur additional indebtedness if we are not able to generate sufficient cash flow from operations to fund our liquidity needs;

 

    requiring us to refinance all or a portion of our indebtedness at or before maturity; and

 

    making it more difficult for us to fund other liquidity needs.

The occurrence of any one of these events or our failure to generate sufficient cash flow from operations could have a material adverse effect on our business, financial condition, results of operations and ability to satisfy our obligations under our indebtedness. If new debt is added to our current debt levels, the related risks that we now face, as described further herein, could intensify and we may not be able to meet all our debt obligations.

The terms of our Senior Credit Facilities and the indenture governing our outstanding Notes impose restrictions on our business, reducing our operational flexibility and creating default risks . Failure to comply with these restrictions, or other events, could result in default under the relevant agreements that could trigger an acceleration of our indebtedness that we may not be able to repay.

Our Senior Credit Facilities and the Notes require compliance with a set of financial and non-financial covenants. These covenants contain numerous restrictions on our ability to among other things:

 

    incur additional debt;

 

    make restricted payments (including any dividends or other distributions in respect of our capital stock and any investments);

 

    sell or transfer assets;

 

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    enter into affiliate transactions;

 

    create liens;

 

    consolidate, merge, sell or otherwise dispose of all or substantially all of our assets; and

 

    take other actions.

As a result, we may be restricted from engaging in business activities that may otherwise improve our business or from financing future operations or capital needs. Failure to comply with the covenants, if not cured or waived, could result in an event of default that could trigger acceleration of our indebtedness, which would require us to repay all amounts owing under the Senior Credit Facilities and the Notes and could have a material adverse impact on our business. Our Senior Credit Facilities and the indenture governing the Notes also contain provisions that trigger repayment obligations, including in some cases upon a change of control, as well as various representations and warranties which, if breached, could lead to events of default. We cannot be certain that our future operating results will be sufficient to ensure compliance with the covenants in our Senior Credit Facilities or the indenture governing the Notes or to remedy any defaults under our Senior Credit Facilities or the indenture governing the Notes. In addition, in the event of any event of default and related acceleration, we may not have or be able to obtain sufficient funds to make any accelerated payments.

EIG Investors, the borrower under our Senior Credit Facilities and the Issuer of the Notes, is a holding company, and may not be able to generate sufficient cash to service all of its indebtedness.

EIG Investors Corp, or EIG Investors, the borrower under our Senior Credit Facilities and the issuer of the Notes, has no direct operations and no significant assets other than the stock of its subsidiaries. Because it conducts its operations through its operating subsidiaries, EIG Investors depends on those entities to generate the funds necessary to meet its financial obligations, including its required obligations under our Senior Credit Facilities and the Notes. The ability of our subsidiaries to make transfers and other distributions to EIG Investors are subject to, among other things, the terms of any debt instruments of those subsidiaries then in effect, applicable law, prevailing economic and competitive conditions and certain financial, business and other factors beyond our control. If transfers or other distributions from our subsidiaries to EIG Investors were eliminated, delayed, reduced or otherwise impaired, its ability to make payments on its obligations would be substantially impaired.

Furthermore, if EIG Investors’ cash flows and capital resources are insufficient to fund its debt service obligations, we may be forced to reduce or delay investments and capital expenditures, seek additional capital, restructure or refinance EIG Investors’ or our indebtedness, or sell assets. We may not be able to accomplish any of these alternatives on a timely basis or on satisfactory terms, if at all, which would limit EIG Investors’ ability to meet its scheduled debt service obligations (including in respect of the Senior Credit Facilities or the Notes). Our ability to restructure or refinance debt will depend on the condition of the capital markets and the financial condition of EIG Investors and us at the time. Any refinancing of EIG Investors’ debt could be at higher interest rates and may require EIG Investors to comply with more onerous covenants, which could further restrict our business operations. The Senior Credit Facilities and the indenture governing the Notes offered hereby will restrict our ability to use the proceeds from asset sales. We may not be able to consummate those asset sales to raise capital or sell assets at prices that we believe are fair, and any proceeds that we receive may not be adequate to meet any debt service obligations then due. In addition, any failure to make payments of interest and principal on EIG Investors’ outstanding indebtedness on a timely basis would likely result in a reduction of its credit rating, which could harm our ability to incur additional indebtedness.

EIG Investors may not be able to repurchase the Notes upon a change of control or pursuant to an asset sale offer, which would cause a default under the indenture governing the Notes and the Senior Credit Facilities.

Upon the occurrence of specific kinds of change of control events, EIG Investors will be required under the indenture governing the Notes to offer to repurchase all outstanding Notes at 101% of their principal amount plus accrued and unpaid interest, if any, unless the Notes have been previously called for redemption. The source of funds for any such purchase of the Notes will be EIG Investors’ available cash or cash generated from its subsidiaries’ operations or other sources, including borrowings, sales of assets or sales of equity. EIG Investors may not be able to repurchase the Notes upon a change of control because it may not have sufficient financial resources to purchase all of the Notes that are tendered upon a change of control. Further, EIG Investors may be contractually restricted under the terms of the Senior Credit Facilities from repurchasing all of the Notes tendered by holders upon a change of control. Accordingly, EIG Investors may not be able to satisfy its obligations to purchase the Notes unless it is able to refinance or obtain waivers under the Senior Credit Facilities. EIG Investors’ failure to repurchase the Notes upon a change of control would cause a default under the indenture governing the Notes and a cross default under the Senior Credit Facilities. The Senior Credit Facilities also provide that a change of control is a default that permits lenders to accelerate the maturity of borrowings thereunder. Any of EIG Investors’ future debt agreements may contain similar provisions.

In addition, in certain circumstances specified in the indenture governing the Notes, EIG Investors will be required to commence an asset sale offer, as defined under the indenture governing the Notes, pursuant to which it will be obligated to offer to purchase the

 

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applicable Notes at a price equal to 100% of their principal amount plus accrued and unpaid interest. EIG Investors’ other debt may contain restrictions that would limit or prohibit EIG Investors from completing any such asset sale offer. EIG Investors’ failure to purchase any such Notes when required under the indenture would be an event of default.

Risks Related to Ownership of Our Common Stock

Our stock price has been and may in the future be volatile, which could cause holders of our common stock to incur substantial losses.

The trading price of our common stock has been and may in the future be subject to substantial price volatility. As a result of this volatility, our stockholders could incur substantial losses. The market price of our common stock may fluctuate significantly in response to numerous factors, many of which are beyond our control, including the factors listed below and other factors described in this “Risk Factors” section:

 

    low trading volume, which could cause even a small number of purchases or sales of our stock to have an impact on the trading price of our common stock;

 

    price and volume fluctuations in the overall stock market from time to time;

 

    significant volatility in the market price and trading volume of comparable companies;

 

    actual or anticipated changes in our earnings or any financial projections we may provide to the public, or fluctuations in our operating results or in the expectations of securities analysts;

 

    ratings changes by debt ratings agencies;

 

    short sales, hedging and other derivative transactions involving our capital stock;

 

    announcements of technological innovations, new products, strategic alliances, or significant agreements by us or by our competitors;

 

    litigation or regulatory proceedings involving us;

 

    investors’ general perception of us;

 

    changes in general economic, industry and market conditions and trends; and

 

    recruitment or departure of key personnel.

In the past, following periods of volatility in the market price of a company’s securities, securities class action litigation has often been brought against that company. In May 2015, a class action securities lawsuit was filed against us, and in the future we may be the target of securities litigation. Securities litigation could result in substantial costs and divert management’s attention and resources from our business.

If securities or industry analysts do not publish, or cease publishing, research or reports about us, our business or our market, or if they publish negative evaluations of our stock, the price of our stock and trading volume could decline.

The trading market for our common stock will be influenced by the research and reports that industry or securities analysts or other parties may publish about us, our business, our market or our competitors. We do not have any control over these parties. If one or more of the analysts covering our business downgrade their evaluations of our stock, the price of our stock could decline. If one or more of these analysts cease to cover our stock, we could lose visibility in the market for our stock, which in turn could cause our stock price to decline.

Future sales of shares of our common stock could cause the market price of our common stock to drop significantly, even if our business is doing well.

A substantial portion of our issued and outstanding common stock can be traded without restriction at any time, and the remaining shares of our issued and outstanding common stock can be sold subject to volume limitations and other requirements applicable to affiliate sales under the federal securities laws. As such, sales of a substantial number of shares of our common stock in the public market could occur at any time. These sales, or the perception in the market that the holders of a large number of shares intend to sell shares, could reduce the market price of our common stock. In addition, we have registered 18,000,000 shares of common stock that have been issued or reserved for future issuance under our 2013 Stock Incentive Plan and 14,346,840 shares of common stock that have been issue or reserved for future issuance under our Constant Contact, Inc. Second Amended And Restated 2011 Stock Incentive Plan. Of these shares, as of March 31, 2016, a total of 17,201,629 shares of our common stock are subject to outstanding options, restricted stock units and restricted stock awards, of which 4,386,126 shares are exercisable or have vested. The

 

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exercise of these options or the vesting of restricted stock units and shares of restricted stock and the subsequent sale of the common stock underlying such options or upon the vesting of such restricted stock units and restricted stock awards could cause a decline in our stock price. These sales also might make it difficult for us to sell equity securities in the future at a time and at a price that we deem appropriate. We cannot predict the size of future issuances or the effect, if any, that any future issuances may have on the market price for our common stock.

In addition, holders of an aggregate of 71,896,177 shares of our common stock have rights, subject to some conditions, to require us to file registration statements covering their shares or to include their shares in registration statements that we may file for ourselves or other stockholders. Once we register these shares, they can be freely sold in the public market upon issuance, subject to any applicable vesting requirements.

Insiders have substantial control over us, which could limit your ability to influence the outcome of key transactions, including a change of control.

As of March 31, 2016, our directors, executive officers and their affiliates beneficially own, in the aggregate, 56.5% of our issued and outstanding common stock. Specifically, investment funds and entities affiliated with Warburg Pincus own, in the aggregate, 34.6% of our issued and outstanding common stock, and investment funds and entities affiliated with Goldman Sachs own, in the aggregate, approximately 11.2% of our issued and outstanding common stock. As a result, these stockholders, if they act together, could have significant influence over the outcome of matters submitted to our stockholders for approval. Our stockholders agreement contains agreements among the parties with respect to certain matters, including the election of directors, and certain restrictions on our ability to effect specified corporate transactions. If these stockholders were to act together, they could have significant influence over the management and affairs of our company. This concentration of ownership may have the effect of delaying or preventing a change in control of our company and might affect the market price of our common stock. In particular, the significant ownership interest of investment funds and entities affiliated with Warburg Pincus and Goldman Sachs in our common stock could adversely affect investors’ perceptions of our corporate governance practices.

Anti-takeover provisions in our restated certificate of incorporation, our amended and restated bylaws and our stockholders agreement, as well as provisions of Delaware law, might discourage, delay or prevent a change in control of our company or changes in our management and, therefore, depress the trading price of our common stock.

Our restated certificate of incorporation, our amended and restated bylaws, our stockholders agreement and Delaware law contain provisions that may discourage, delay or prevent a merger, acquisition or other change in control that stockholders may consider favorable, including transactions in which you might otherwise receive a premium for your shares of our common stock. These provisions may also prevent or frustrate attempts by our stockholders to replace or remove our management. Our corporate governance documents include provisions:

 

    authorizing blank check preferred stock, which could be issued without stockholder approval and with voting, liquidation, dividend and other rights superior to our common stock;

 

    limiting the liability of, and providing indemnification to, our directors and officers;

 

    limiting the ability of our stockholders to call and bring business before special meetings; provided that for so long as investment funds and entities affiliated with Warburg Pincus or Goldman Sachs, collectively, own a majority of our issued and outstanding capital stock, special meetings of our stockholders may be called by the affirmative vote of the holders of a majority of our issued and outstanding voting stock;

 

    providing that any action required or permitted to be taken by our stockholders must be taken at a duly called annual or special meeting of such stockholders and may not be taken by any consent in writing by such stockholders; provided that for so long as investment funds and entities affiliated with either Warburg Pincus or Goldman Sachs, collectively, own a majority of our issued and outstanding capital stock, a meeting and vote of stockholders may be dispensed with, and the action may be taken without prior notice and without such meeting and vote if a written consent is signed by the holders of issued and outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at the meeting of stockholders;

 

    requiring advance notice of stockholder proposals for business to be conducted at meetings of our stockholders and for nominations of candidates for election to our board of directors; provided that no advance notice shall be required for nominations of candidates for election to our board of directors pursuant to our stockholders agreement;

 

    controlling the procedures for the conduct and scheduling of board of directors and stockholder meetings;

 

    providing our board of directors with the express power to postpone previously scheduled annual meetings and to cancel previously scheduled special meetings;

 

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    establishing a classified board of directors so that not all members of our board are elected at one time;

 

    establishing Delaware as the exclusive jurisdiction for specified types of stockholder litigation involving us or our directors;

 

    providing that for so long as investment funds and entities affiliated with Warburg Pincus have the right to designate at least three directors for election to our board of directors, certain actions required or permitted to be taken by our stockholders, including amendments to our restated certificate of incorporation or amended and restated bylaws and certain specified corporate transactions, may be effected only with the affirmative vote of 75% of our board of directors, in addition to any other vote required by applicable law;

 

    providing that for so long as investment funds and entities affiliated with Warburg Pincus have the right to designate at least one director for election to our board of directors and for so long as investment funds and entities affiliated with Goldman Sachs have the right to designate one director for election to our board of directors, in each case, a quorum of our board of directors will not exist without at least one director designee of each of Warburg Pincus and Goldman Sachs present at such meeting; provided that if a meeting of our board of directors fails to achieve a quorum due to the absence of a director designee of Warburg Pincus or Goldman Sachs, as applicable, the presence of a director designee of Warburg Pincus or Goldman Sachs, as applicable, will not be required in order for a quorum to exist at the next meeting of our board of directors;

 

    limiting the determination of the number of directors on our board of directors and the filling of vacancies or newly created seats on the board to our board of directors then in office; provided that for so long as investment funds and entities affiliated with either Warburg Pincus or Goldman Sachs have the right to designate at least one director for election to our board of directors, any vacancies will be filled in accordance with the designation provisions set forth in our stockholders agreement; and

 

    providing that directors may be removed by stockholders only for cause by the affirmative vote of the holders of at least 75% of the votes that all our stockholders would be entitled to cast in an annual election of directors; provided that any director designated by investment funds and entities affiliated with either Warburg Pincus or Goldman Sachs may be removed with or without cause only by Warburg Pincus or Goldman Sachs, respectively, and for so long as investment funds and entities affiliated with either Warburg Pincus or Goldman Sachs, collectively, hold at least a majority of our issued and outstanding capital stock, our directors, other than a director designated by investment funds and entities affiliated with either Warburg Pincus or Goldman Sachs, respectively, may be removed with or without cause by the affirmative vote of the holders of a majority of our issued and outstanding capital stock.

As a Delaware corporation, we are also subject to provisions of Delaware law, including Section 203 of the Delaware General Corporation Law, which prevents some stockholders holding more than 15% of our issued and outstanding common stock from engaging in certain business combinations without approval of the holders of substantially all of our issued and outstanding common stock. Since the investment funds and entities affiliated with Warburg Pincus and Goldman Sachs became holders of more than 15% of our issued and outstanding common stock in a transaction that was approved by our board of directors, the restrictions of Section 203 of the Delaware General Corporation law would not apply to a business combination transaction with any investment funds or entities affiliated with either Warburg Pincus or Goldman Sachs. In addition, our restated certificate of incorporation expressly exempts investment funds and entities affiliated with either Warburg Pincus or Goldman Sachs from the applicability of Section 203 of the Delaware General Corporation Law. Any provision of our restated certificate of incorporation or amended and restated bylaws or Delaware law that has the effect of delaying or deterring a change in control could limit the opportunity for our stockholders to receive a premium for their shares of our common stock and could also affect the price that some investors are willing to pay for our common stock.

The existence of the foregoing provisions and anti-takeover measures could limit the price that investors might be willing to pay in the future for shares of our common stock. They could also deter potential acquirers of our company, thereby reducing the likelihood that you could receive a premium for your common stock in an acquisition.

We have incurred and expect to continue to incur increased costs as a result of operating as a public company, and our management is required to devote substantial time to compliance with our public company responsibilities and corporate governance practices. We also need to ensure that we have adequate internal financial and accounting controls and procedures in place so that we can produce accurate financial statements on a timely basis. Failure to maintain proper and effective internal controls could impair our ability to produce accurate and timely financial statements, which could harm our operating results, our ability to operate our business, and our investors’ view of us.

As a public company, we have incurred and expect to continue to incur significant legal, accounting and other expenses that we did not incur as a private company. The Sarbanes-Oxley Act of 2002, the Dodd-Frank Wall Street Reform and Consumer Protection Act, the listing requirements of The NASDAQ Global Select Market and other applicable securities rules and regulations impose

 

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various requirements on public companies. Our management and other personnel need to devote a substantial amount of time to comply with these requirements. Moreover, these rules and regulations have increased our legal and financial compliance costs and have made some activities more time-consuming and costly. These rules and regulations have made it more difficult and more expensive for us to obtain director and officer liability insurance, which could make it more difficult for us to attract and retain qualified members of our board of directors.

One aspect of complying with these rules and regulations as a public company is that we are required to ensure that we have adequate financial and accounting controls and procedures in place. Our internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements in accordance with generally accepted accounting principles. This is a costly and time-consuming effort that needs to be re-evaluated periodically.

Section 404 of the Sarbanes-Oxley Act of 2002, or Section 404, requires that we evaluate, test and document our internal controls and, as a part of that evaluation, documentation and testing, identify areas for further attention and improvement. In order to comply with Section 404, we will need to continue to dedicate internal resources, and potentially recruit additional finance and accounting personnel or engage outside consultants, to assess and document the adequacy of internal control over financial reporting, continue steps to improve control processes as appropriate, validate through testing that controls are functioning as documented and implement and maintain a continuous reporting and improvement process for internal control over financial reporting. Implementing and maintaining any appropriate changes to our internal controls may distract our officers and employees, entail substantial costs to modify our existing processes and take significant time to complete. These changes may not, however, be effective in maintaining the adequacy of our internal controls. Thus, despite our efforts, there is a risk that in the future we will not be able to conclude that our internal control over financial reporting is effective as required by Section 404. Any failure to maintain the adequacy of our internal controls, consequent inability to produce accurate financial statements on a timely basis, or identification and failure to remediate one or more material weaknesses could result in an adverse reaction in the financial markets due to a loss of confidence in the reliability of our financial statements and make it more difficult for us to market and sell our solutions to new and existing subscribers.

Certain of our stockholders have the right to engage or invest in the same or similar businesses as us.

Investment funds and entities affiliated with either Warburg Pincus or Goldman Sachs, together, hold a controlling interest in our company. Warburg Pincus, Goldman Sachs and their respective affiliates have other investments and business activities in addition to their ownership of our company. Warburg Pincus, Goldman Sachs and their respective affiliates have the right, and have no duty to abstain from exercising the right, to engage or invest in the same or similar businesses as us. To the fullest extent permitted by law, we have, on behalf of ourselves, our subsidiaries and our and their respective stockholders, renounced any interest or expectancy in, or in being offered an opportunity to participate in, any business opportunity that may be presented to Warburg Pincus, Goldman Sachs or any of their respective affiliates, partners, principals, directors, officers, members, managers, employees or other representatives, and no such person has any duty to communicate or offer such business opportunity to us or any of our subsidiaries or shall be liable to us or any of our subsidiaries or any of our or its stockholders for breach of any duty, as a director or officer or otherwise, by reason of the fact that such person pursues or acquires such business opportunity, directs such business opportunity to another person or fails to present such business opportunity, or information regarding such business opportunity, to us or our subsidiaries, unless, in the case of any such person who is a director or officer of ours, such business opportunity is expressly offered to such director or officer in writing solely in his or her capacity as a director or officer of ours.

We may not pay any dividends on our common stock for the foreseeable future.

We do not currently anticipate that we will pay any cash dividends to holders of our common stock in the foreseeable future. Instead, we expect to retain any earnings to maintain and expand our existing operations, including through mergers and acquisitions, and to invest in the growth of our business. In addition, our ability to pay cash dividends is currently limited by the terms of our Senior Credit Facilities and the indenture governing the Notes, and any future credit agreement may contain terms prohibiting or limiting the amount of dividends that may be declared or paid on our common stock. Accordingly, investors must rely on sales of their common stock after price appreciation, which may never occur, to realize any return on their investment.

 

ITEM 5. OTHER INFORMATION

Disclosures of Iranian Activities under Section 13(r) of the Exchange Act

Pursuant to Section 219 of the Iran Threat Reduction and Syria Human Rights Act of 2012, or ITRA, which added Section 13(r) to the Exchange Act, we are required to disclose in our annual or quarterly reports, as applicable, whether we or any of our affiliates knowingly engaged in certain activities, transactions or dealings relating to Iran or with individuals or entities that are subject to sanctions under U.S. law. Disclosure is generally required even where the activities, transactions or dealings were conducted in compliance with applicable law.

 

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Warburg Pincus LLC, or WP LLC, affiliates of which (i) beneficially own more than 10% of our outstanding common stock and/or are members of our board of directors and (ii) beneficially own more than 10% of the equity interests of, and have the right to designate members of the board of directors of, Santander Asset Management Investment Holdings Limited, or SAMIH, has informed us that, during the reporting period, Santander UK plc, or Santander UK, and Santander ISA Managers Limited, or SIML, each of which are affiliates of SAMIH and WP LLC, engaged in activities subject to disclosure pursuant to Section 219 of ITRA and Section 13(r) of the Exchange Act. As a result, we are required to provide disclosure as set forth below pursuant to Section 219 of ITRA and Section 13(r) of the Exchange Act. WP LLC has informed us that SAMIH has provided WP LLC with the information below relevant to Section 219 of ITRA and Section 13(r) of the Exchange Act.

At the time of the events described below, SAMIH and its affiliates, including Santander UK and SIML, may have been deemed to be under common control with us, but this statement is not meant to be an admission that common control existed or exists. We have no control over or involvement in the activities of SAMIH or its affiliates, including Santander UK and SIML, or any of its subsidiaries or predecessor companies, and we were not involved in the preparation of, nor have we independently verified, the information provided by SAMIH to WP LLC. The disclosure below does not relate to any activities conducted by us and does not involve us or our management. The disclosure relates solely to activities conducted by SAMIH and its affiliates, including Santander UK and SIML. We are not representing to the accuracy or completeness of the disclosure below, and we undertake no obligation to correct or update this information.

We understand that SAMIH’s affiliates intend to disclose in their next annual or quarterly report that Santander UK holds two frozen savings accounts and two frozen current accounts for three customers resident in the United Kingdom who are currently designated by the United States under the Specially Designated Global Terrorist, or SDGT, sanctions program. The accounts held by each customer were blocked after the customer’s designation and have remained blocked and dormant through the first quarter of 2016. Revenue generated by Santander UK on these accounts in the first quarter of 2016 was £3.67 while net profits in the first quarter of 2016 were negligible relative to the overall profits of Banco Santander, S.A.

We also understand that SAMIH’s affiliates intend to disclose in their next annual or quarterly report that an Iranian national, resident in the United Kingdom, who is currently designated by the United States under the Iran Financial Sanctions Regulations, or IFSR, and the Weapons of Mass Destruction Proliferators Sanctions Regulations, holds a mortgage with Santander UK that was issued prior to any such designation. No further drawdown has been made or would be allowed under this mortgage although Santander UK continues to receive repayment installments. In the first quarter of 2016, total revenue generated by Santander UK in connection with the mortgage was £201.22 while net profits were negligible relative to the overall profits of Banco Santander, S.A. Santander UK does not intend to enter into any new relationships with this customer, and any disbursements will only be made in accordance with applicable sanctions. The same Iranian national also holds two investment accounts with SIML. The funds within both accounts are invested in the same portfolio fund. The accounts have remained frozen during the first quarter of 2016. The investment returns are being automatically reinvested, and no disbursements have been made to the customer. Total revenue in the first quarter of 2016 generated by Santander UK in connection with the investment accounts was £4.89 while net profits in the first quarter of 2016 were negligible relative to the overall profits of Banco Santander, S.A.

We also understand that SAMIH’s affiliates intend to disclose in their next annual or quarterly report that a United Kingdom national designated by the United States under the SDGT sanctions program holds a Santander UK current account. The account remained in arrears through the first quarter of 2016 (£1,344.01 in debit) and is currently being managed by Santander UK Collections & Recoveries department.

We also understand that SAMIH’s affiliates intend to disclose in their next annual or quarterly report that, during the first quarter of 2016, Santander UK identified an Office of Foreign Assets Control name match on a power of attorney account. A party listed on the account is currently designated by the United States under the SDGT sanctions program and the IFSR. During the first quarter of 2016, related revenue generated by Santander UK was £73.81 while net profits in the first quarter of 2016 were negligible relative to the overall profits of Banco Santander, S.A.

 

ITEM 6. EXHIBITS

See the Exhibit Index immediately following the signature page of this Quarterly Report on Form 10-Q, which is incorporated herein by reference.

 

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

    ENDURANCE INTERNATIONAL GROUP HOLDINGS, INC.
Date: May 9, 2016     By:  

/s/ Marc Montagner

      Marc Montagner
     

Chief Financial Officer

(Principal Financial Officer)

 

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EXHIBIT INDEX

 

Exhibit

Number

   Description of Exhibit    Incorporated by Reference     

Filed

Herewith

      Form    File Number    Date of Filing   

Exhibit

Number

    
    2.1    Agreement and Plan of Merger, dated October 30, 2015, by and among Constant Contact, Inc., the Registrant, and Paintbrush Acquisition Corporation*    8-K    001-36131    November 2, 2015      2.1      
    3.1    Restated Certificate of Incorporation of the Registrant    S-1/A    333-191061    October 23, 2013      3.3      
    3.2    Amended and Restated Bylaws of the Registrant    S-1/A    333-191061    October 23, 2013      3.5      
    4.1    Specimen certificate evidencing shares of common stock of the Registrant    S-1/A    333-191061    October 8, 2013      4.1      
    4.2    Second Amended and Restated Registration Rights Agreement, dated as of October 24, 2013, by and among the Registrant and the other parties thereto    10-Q    001-36131    November 7, 2014      4.2      
    4.3    Stockholders Agreement, dated as of October 24, 2013, by and among the Registrant and certain holders of the Registrant’s common stock    10-Q    001-36131    November 7, 2014      4.3      
    4.4    Indenture (including form of Note), dated as of February 9, 2016, among EIG Investors Corp., the Registrant, the Endurance Guarantors party thereto and Wilmington Trust, National Association, as trustee    8-K    001-36131    February 10, 2016      4.1      
    4.5    Purchase Agreement, dated as of February 8, 2016, among EIG Investors Corp., the Registrant, the Endurance Guarantors party thereto, Goldman, Sachs & Co., Credit Suisse Securities (USA) LLC and Jefferies LLC                X
    4.6    Exchange and Registration Rights Agreement, dated as of February 9, 2016, among EIG Investors Corp., the Registrant, the Endurance Guarantors party thereto, Goldman, Sachs & Co., Credit Suisse Securities (USA) LLC and Jefferies LLC                X
  10.1    Revolving Facility Amendment to Third Amended and Restated Credit Agreement, dated as of February 9, 2016, among EIG Investors Corp., the Registrant, the other Loan Parties party thereto, the lenders party thereto and Credit Suisse AG, Cayman Islands Branch, as administrative agent and issuing bank    8-K    001-36131    February 10, 2016      10.1      
  10.2    Incremental Term Loan Amendment to Third Amended and Restated Credit Agreement, dated as of February 9, 2016, among EIG Investors Corp., the Registrant, the other Loan Parties party thereto, the lenders party thereto and Credit Suisse AG, Cayman Islands Branch, as administrative agent and issuing bank    8-K    001-36131    February 10, 2016      10.2      
  10.3    Constant Contact, Inc. Second Amended and Restated 2011 Stock Incentive Plan    S-8    333-209680    February 24, 2016      99.1      
  10.4    Form of Incentive Stock Option Agreement under the 2011 Stock Incentive Plan                X

 

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Exhibit

Number

   Description of Exhibit    Incorporated by Reference   

Filed

Herewith

      Form    File Number    Date of Filing   

Exhibit

Number

  
  10.5    Form of Non-Statutory Stock Option Agreement under the 2011 Stock Incentive Plan                X
  10.6    Form of Restricted Stock Unit Agreement under the 2011 Stock Incentive Plan                X
  10.7#    Employment Agreement, dated as of February 22, 2016, by and between the Registrant and Ronald LaSalvia                X
  10.8#    Employment Agreement, dated as of March 7, 2016, by and between the Registrant and Katherine Andreasen                X
  10.9#    Employment Agreement, dated as of March 7, 2016, by and between the Registrant and David Bryson                X
  10.10#    Form of Performance-Based Restricted Stock Agreement under the 2013 Stock Incentive Plan (CTCT integration)                X
  10.11    Turn Key Datacenter Lease dated as of December 31, 2010 between Digital Alfred, LLC and Constant Contact, Inc., as amended by the First Amendment to Turn Key Datacenter Lease dated as of March 1, 2011 and the Second Amendment to Turnkey Datacenter Lease dated as of December 15, 2011                X
  10.12    Datacenter Lease dated as of January 1, 2011 between Digital 55 Middlesex, LLC and Constant Contact, Inc., as amended by the First Amendment to Datacenter Lease dated as of May 11, 2012, the 55 Middlesex Turnpike Office Space Rider dated as of May 11, 2012 and the Second Amendment to Datacenter Lease dated February 26, 2016                X
  10.13    Supplement No. 1 to Amended and Restated Collateral Agreement, dated as of February 9, 2016, by and among the Registrant, EIG Investors Corp., the other guarantors party thereto, and Credit Suisse AG, as Administrative Agent                X
  10.14    Supplement No. 1 to Amended and Restated Master Guarantee Agreement, dated as of February 9, 2016, by and among the Registrant, EIG Investors Corp., the other guarantors party thereto, and Credit Suisse AG, as Administrative Agent                X
  31.1    Certification of Principal Executive Officer Pursuant to Rule 13a-14(a)/15d-14(a) of the Securities Exchange Act of 1934, as amended                X
  31.2    Certification of Principal Financial Officer Pursuant to Rule 13a-14(a)/15d-14(a) of the Securities Exchange Act of 1934, as amended                X
  32.1    Certification of Principal Executive Officer Pursuant to 18 U.S.C. § 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002                X
  32.2    Certification of Principal Financial Officer Pursuant to 18 U.S.C. § 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002                X

 

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Exhibit

Number

   Description of Exhibit    Incorporated by Reference   

Filed

Herewith

      Form    File Number    Date of Filing   

Exhibit

Number

  
101.INS    XBRL Instance Document                X
101.SCH    XBRL Taxonomy Extension Schema Document                X
101.CAL    XBRL Taxonomy Extension Calculation Linkbase Document                X
101.DEF    XBRL Taxonomy Extension Definition Linkbase Document                X
101.LAB    XBRL Taxonomy Extension Label Linkbase Document                X
101.PRE    XBRL Taxonomy Extension Presentation Linkbase Document                X

 

* Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. Endurance agrees to furnish supplementally to the Securities and Exchange Commission a copy of any omitted schedule or exhibit upon request.
# Management contract or any compensatory plan, contract or agreement.

 

85

EXECUTION VERSION

Exhibit 4.5

$350,000,000

EIG INVESTORS CORP.

10.875% SENIOR NOTES DUE 2024

PURCHASE AGREEMENT

February 8, 2016

Goldman, Sachs & Co.

Credit Suisse Securities (USA) LLC

Jefferies LLC

As Representatives of the several Initial Purchasers listed in Schedule I hereto

c/o Goldman, Sachs & Co.

200 West Street

New York, New York 10282

Ladies and Gentlemen:

EIG Investors Corp., a Delaware corporation (the “ Issuer ”), proposes, upon the terms and conditions set forth in this purchase agreement (this “ Agreement ”), to issue and sell to the initial purchasers named in Schedule I attached hereto (the “ Initial Purchasers ”), $350,000,000 in aggregate principal amount of its 10.875% Senior Notes due 2024 (the “ Notes ”). Goldman, Sachs & Co. (“ Goldman Sachs ”), Credit Suisse Securities (USA) LLC (“ Credit Suisse ”) and Jefferies LLC (“ Jefferies ”) have agreed to act as the representatives of the several Initial Purchasers (collectively, the “ Representatives ”) in connection with the offering and sale of the Notes.

References to the “Endurance Guarantors” refer to each entity set forth on Part A of Schedule II attached hereto. References to “Constant Contact Guarantors” refer to each entity set forth on Part B of Schedule II attached hereto. References to the “Guarantors” refer to each of the Endurance Guarantors and Constant Contact Guarantors (each a “ Guarantor ” and collectively, the “ Guarantors ”).

The Notes will (i) have terms and provisions that are summarized in the Pricing Disclosure Package and the Final Offering Memorandum (each as defined below), and (ii) are to be issued pursuant to an indenture (the “ Indenture ”) to be entered into among the Issuer, the Endurance Guarantors and Wilmington Trust, National Association, as trustee (the “ Trustee ”). The obligations of the Issuer, including the due and punctual payment of interest on the Notes, will be fully, irrevocably, and unconditionally guaranteed on a senior unsecured basis, jointly and

 

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severally (the “ Guarantees ”), by (x) the Endurance Guarantors, (y) after the Acquisition (as defined below) on the Closing Date (as defined below), the Constant Contact Guarantors and (z) any domestic subsidiary of the Issuer, acquired or organized after the Closing Date that is required to execute a supplemental indenture to provide a guarantee in accordance with the terms of the Indenture, and their respective successors and assigns. As used herein, the term “Notes” shall include the Guarantees, unless the context otherwise requires. This Agreement is to confirm the agreement concerning the purchase of the Notes from the Issuer by the Initial Purchasers.

The Notes are being offered and sold by the Issuer, a wholly-owned subsidiary of Endurance International Group Holdings, Inc., a Delaware corporation (“ Holdings ”), in connection with the acquisition of all of the outstanding equity interests of Constant Contact, Inc., a Delaware corporation (the “ Company ”), pursuant to the Acquisition Agreement (as defined below). On or before the Closing Date:

 

  (i) the Issuer will obtain a $40,000,000 senior secured incremental revolving facility (the “ Incremental Revolving Facility ”), which will be provided in the form of a Revolving Commitment Increase as defined in, and pursuant to, that certain Third Amended and Restated Credit Agreement dated as of November 25, 2013 (as amended, restated, supplemented or otherwise modified from time to time, including on the Closing Date, the “ Senior Secured Credit Agreement ”), entered into among Holdings, the Issuer, the lenders from time to time party thereto and Credit Suisse AG, Cayman Islands Branch, as administrative agent;

 

  (ii) immediately following the incurrence of the Incremental Revolving Facility, the Issuer will obtain a $165,000,000 senior secured refinancing revolving facility (the “ Refinancing Revolving Facility ”), which will be provided in the form of Other Revolving Commitments as defined in, and pursuant to, the Senior Secured Credit Agreement and will be used to replace all outstanding revolving commitments and revolving loans under the Senior Secured Credit Agreement (including the Incremental Revolving Facility);

 

  (iii) promptly following the incurrence of the Refinancing Revolving Facility, the Issuer will obtain a senior secured incremental term loan facility in an aggregate principal amount equal to $735,000,000 (the “ Incremental Term Facility ”) which will be provided in the form of Incremental Term Loans as defined in, and pursuant to, the Senior Secured Credit Agreement;

 

  (iv) the Issuer will issue and sell the Notes;

 

  (v) the proceeds of the Incremental Term Facility and the Notes issued on the Closing Date and cash on hand of the Company and Holdings and their respective subsidiaries, if applicable, will be applied (a) to pay the consideration in connection with the Acquisition and any other payments required under the Acquisition Agreement, (b) to refinance revolving loans outstanding under the Senior Secured Credit Agreement and (c) to pay the fees and expenses incurred in connection with the Transactions (as defined below); and

 

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  (vi) Paintbrush Acquisition Corporation, a Delaware corporation and an indirect wholly owned subsidiary of the Issuer (“ Merger Sub ”), will merge with and into the Company, with the Company continuing as the surviving corporation (the “ Acquisition ”), pursuant to the Agreement and Plan of Merger, dated as of October 30, 2015 (together with all exhibits, schedules, annexes and disclosure schedules thereto, collectively, the “ Acquisition Agreement ”), entered into among Holdings, Merger Sub and the Company.

 

       The foregoing transactions described in clauses (i) through (vi) above are collectively referred to in this Agreement as the “ Transactions .”

After the Acquisition on the Closing Date, the Issuer will cause each of the Constant Contact Guarantors to become parties to this Agreement by executing a joinder substantially in the form attached hereto as Exhibit A (the “ Purchase Agreement Joinder ”), to guarantee the Notes by executing a supplement to the Indenture (the “ Supplemental Indenture ”) and to join the Registration Rights Agreement (as defined below) by executing a joinder thereto (the “ Registration Rights Agreement Joinder ”). Notwithstanding anything to the contrary contained in this Agreement, the representations, warranties and agreements of the Constant Contact Guarantors contained herein shall not become effective until the execution and delivery by the Constant Contact Guarantors of the Purchase Agreement Joinder and until such time the Constant Contact Guarantors shall not have any rights or obligations under this Agreement.

The term “ Transaction Agreements ” refers to this Agreement, the Notes, the Indenture (including the Guarantees contained therein), the Registration Rights Agreement, the Purchase Agreement Joinder, the Supplemental Indenture and the Registration Rights Agreement Joinder.

Capitalized terms used but not defined herein shall have the meanings given to such terms in the Pricing Disclosure Package and the Final Offering Memorandum.

For purposes of this Agreement, references to subsidiaries and affiliates of the Issuer shall be deemed to include the Company and its direct and indirect subsidiaries and each of their respective affiliates. Any representations and warranties made prior to the execution and delivery of the Purchase Agreement Joinder with respect to the Company and its subsidiaries, including the Constant Contact Guarantors, are made to the knowledge of the Issuer, after due inquiry.

1. Purchase and Resale of the Notes . The Notes will be offered and sold to the Initial Purchasers without registration under the Securities Act of 1933, as amended (the “ Securities Act ”), in reliance on an exemption pursuant to Section 4(a)(2) under the Securities Act. The Issuer has prepared a preliminary offering memorandum, dated January 27, 2016 (the “ Preliminary Offering Memorandum ”), a pricing term sheet substantially in the form attached hereto as Schedule III (the “ Pricing Term Sheet ”) setting forth the terms of the Notes omitted from the Preliminary Offering Memorandum and an offering memorandum, dated February 8, 2016 (the “ Final Offering Memorandum ”), setting forth information regarding the Issuer, the

 

3


Guarantors and the Notes. The Preliminary Offering Memorandum, together with the Pricing Term Sheet and any of the documents listed on Schedule IV(A) hereto, are collectively referred to as the “ Pricing Disclosure Package . ” The Issuer and the Guarantors hereby confirm that they have authorized the use of the Pricing Disclosure Package and the Final Offering Memorandum in connection with the offering and resale of the Notes by the Initial Purchasers. “ Applicable Time ” means 5:00 p.m. (New York City time) on the date of this Agreement.

All references herein to the terms “ Pricing Disclosure Package ” and “ Final Offering Memorandum ” shall be deemed to include all information filed under the Securities Exchange Act of 1934 (as amended, the “ Exchange Act, ” which term, as used herein, includes the rules and regulations of the Securities and Exchange Commission (the “ Commission ”) promulgated thereunder) prior to the Applicable Time and incorporated by reference in the Pricing Disclosure Package or the Final Offering Memorandum (as the case may be), and all references herein to the terms “ amend ,” “ amendment ” or “ supplement ” with respect to the Final Offering Memorandum shall be deemed to include all information filed under the Exchange Act after the Applicable Time and incorporated by reference in the Final Offering Memorandum.

You have advised the Issuer that you will offer and resell (the “ Exempt Resales ”) the Notes purchased by you hereunder on the terms set forth in each of the Pricing Disclosure Package and the Final Offering Memorandum, as amended or supplemented, solely to (i) persons whom you reasonably believe to be “qualified institutional buyers” as defined in Rule 144A under the Securities Act (“ QIBs ”), and (ii) outside the United States to certain persons who are not U.S. Persons (as defined in Regulation S under the Securities Act (“ Regulation S ”)) (such persons, “ Non-U.S. Persons ”) in offshore transactions in reliance on Regulation S. As used herein, the terms “offshore transaction” and “United States” have the meanings assigned to them in Regulation S. Those persons specified in clauses (i) and (ii) are referred to herein as “ Eligible Purchasers .”

The Issuer acknowledges and agrees that the Initial Purchasers may offer and sell Notes to or through any affiliate of an Initial Purchaser and that any such affiliate may offer and sell Notes purchased by it to or through any Initial Purchaser or any affiliate thereof.

2. Representations, Warranties and Agreements of the Issuer and the Guarantors . As of the Applicable Time and the Closing Date, each of the Issuer, the Endurance Guarantors, and, upon execution and delivery of the Purchase Agreement Joinder, each of the Constant Contact Guarantors, jointly and severally, represents, warrants and covenants to each Initial Purchaser as follows:

(a) When the Notes, including the Guarantees, are issued and delivered pursuant to this Agreement, such Notes and Guarantees will not be of the same class (within the meaning of Rule 144A under the Securities Act) as any securities of the Issuer or the Guarantors that are listed on a national securities exchange registered under Section 6 of the Exchange Act.

(b) Assuming the accuracy of your representations and warranties in Section 3(b), the purchase and resale of the Notes pursuant hereto (including pursuant to the Exempt Resales) are exempt from the registration requirements of the Securities Act.

 

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(c) No form of “general solicitation” or “general advertising” within the meaning of Regulation D under the Securities Act (including, but not limited to, advertisements, articles, notices or other communications published in any newspaper, magazine or similar medium or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising) was used by the Issuer, the Guarantors or any of their respective affiliates or any of their respective representatives or any person acting on their behalf (other than the Initial Purchasers, as to whom the Issuer and the Guarantors make no representation) in connection with the offer and sale of the Notes and the Guarantees.

(d) No “directed selling efforts” within the meaning of Rule 902 under the Securities Act were used by the Issuer, the Guarantors or any of their respective affiliates or any of their respective representatives or any person acting on their behalf (other than the Initial Purchasers, as to whom the Issuer and the Guarantors make no representation) with respect to Notes sold outside the United States to Non-U.S. Persons, and each of the Issuer, the Guarantors, any of their respective affiliates, any of their respective representatives or any person acting on its or their behalf (other than the Initial Purchasers, as to whom the Issuer and the Guarantors make no representation) has complied with and will implement the “offering restrictions” required by Rule 902 under the Securities Act.

(e) Each of the Preliminary Offering Memorandum, the Pricing Disclosure Package and the Final Offering Memorandum, each as of its respective date, contains all the information specified in, and meeting the requirements of, Rule 144A(d)(4) under the Securities Act.

(f) None of the Issuer, any Guarantor, any of their respective affiliates or any of their respective representatives nor any other person acting on behalf of the Issuer or any Guarantor has sold or issued any securities that would be integrated with the offering of the Notes contemplated by this Agreement pursuant to the Securities Act, the rules and regulations thereunder or the interpretations thereof by the Commission.

(g) The Preliminary Offering Memorandum, the Pricing Disclosure Package, the Final Offering Memorandum and any Free Writing Offering Document (as defined below) have been prepared by the Issuer for use by the Initial Purchasers in connection with the Exempt Resales. No order or decree preventing the use of the Preliminary Offering Memorandum, the Pricing Disclosure Package, the Final Offering Memorandum or any Free Writing Offering Document, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Securities Act has been issued, and no proceeding for that purpose has commenced or is pending or, to the knowledge of the Issuer or any of the Guarantors, is contemplated.

(h) The Final Offering Memorandum will not, as of its date or as of the Closing Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Final Offering Memorandum in reliance upon and in conformity with written information furnished to the Issuer through the Representatives by or on behalf of any Initial Purchaser specifically for inclusion therein, which information is specified in
Section 8(e).

 

5


(i) The Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Pricing Disclosure Package in reliance upon and in conformity with written information furnished to the Issuer through the Representatives by or on behalf of any Initial Purchaser specifically for inclusion therein, which information is specified in Section 8(e).

(j) As of the Applicable Time and as of the Closing Date, the Recorded Road Show (as defined below), when taken together with the Pricing Disclosure Package (as of the Applicable Time and Closing Date) and the Final Offering Memorandum (as of the Closing Date) did not include any untrue statements of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

(k) None of Holdings, the Issuer or any of the Issuer’s subsidiaries or affiliates (other than the Initial Purchasers, as to which no representation is given) has made any offer to sell or solicitation of an offer to buy the Notes that would constitute a “free writing prospectus” (if the offering of the Notes were made pursuant to a registered offering under the Securities Act), as defined in Rule 405 under the Securities Act (a “ Free Writing Offering Document ”) without the prior consent of the Representatives; any such Free Writing Offering Document the use of which has been previously consented to by the Initial Purchasers is listed on Schedule IV(B) hereto. As of the Applicable Time and as of the Closing Date, each Free Writing Offering Document included on Schedule IV(B), when taken together with the Pricing Disclosure Package (as of the Applicable Time and Closing Date) and the Final Offering Memorandum (as of the Closing Date) did not include any untrue statements of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Holdings’ Annual Report on Form 10-K most recently filed with the Commission and all reports for periods or dates subsequent to the periods covered in such Annual Report on Form 10-K, when they were filed with the Commission conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission.

(l) Each of Holdings, the Issuer and the Issuer’s subsidiaries has been duly organized, is validly existing and in good standing as a corporation or other business entity under the laws of its jurisdiction of organization and is duly qualified to do business and in good standing as a foreign corporation or other business entity in each jurisdiction in which its ownership or lease of property or the conduct of its businesses requires such qualification, except where the failure to be so qualified or in good standing could not, in the aggregate, reasonably be expected to have a material adverse effect on the condition (financial or otherwise), results of operations or business of Holdings, the Issuer and the Issuer’s subsidiaries taken as a whole (a “ Material Adverse Effect ”). Each of Holdings, the Issuer and the Issuer’s subsidiaries has all requisite corporate and other organizational power and authority necessary

 

6


to own or hold its properties and to conduct the businesses in which it is engaged except as would not reasonably be expected to have a Material Adverse Effect. The Issuer does not own or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries listed on Schedule V attached hereto.

(m) Holdings has an authorized capitalization as set forth in each of the Pricing Disclosure Package and the Final Offering Memorandum, and all of the issued shares of capital stock of each of Holdings and the Issuer have been duly authorized and validly issued and are fully paid and non-assessable. All of the issued shares of capital stock or other ownership interests of each subsidiary of the Issuer have been duly authorized and validly issued, are fully paid and non-assessable and all such shares or other ownership interests owned directly or indirectly by the Issuer are free and clear of all liens, encumbrances, equities or claims, except for such liens, encumbrances, equities or claims as could not, in the aggregate, reasonably be expected to have a Material Adverse Effect or as incurred in connection with the Refinancing Revolving Facility and the Incremental Term Facility.

(n) Each of the Issuer and the Endurance Guarantors has all requisite corporate or other organizational power and authority to execute, deliver and perform its obligations under the Indenture. The Indenture has been duly and validly authorized by the Issuer and the Endurance Guarantors and upon its execution and delivery and, assuming due authorization, execution and delivery thereof by the Trustee, will constitute the valid and binding agreement of the Issuer and the Endurance Guarantors, enforceable against the Issuer and the Endurance Guarantors in accordance with its terms, except as such enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). No qualification of the Indenture under the Trust Indenture Act of 1939 (the “ Trust Indenture Act ”) is required in connection with the offer and sale of the Notes contemplated hereby or in connection with the Exempt Resales. The Indenture will conform in all material respects to the description thereof in each of the Pricing Disclosure Package and the Final Offering Memorandum.

(o) The Issuer has all requisite corporate power and authority to execute, deliver and perform its obligations under and issue and sell the Notes. As of the Closing Date, the Notes will have been duly authorized by the Issuer and, when duly executed by the Issuer in accordance with the terms of the Indenture, assuming due authentication of the Notes by the Trustee, upon delivery to the Initial Purchasers against payment therefor in accordance with the terms hereof, will be validly issued and delivered and will constitute valid and binding obligations of the Issuer entitled to the benefits of the Indenture, enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). The Notes will conform in all material respects to the description thereof in each of the Pricing Disclosure Package and the Final Offering Memorandum.

 

7


(p) Each Endurance Guarantor has all requisite corporate or other organizational power and authority to issue and perform its obligations under the Guarantees. On or prior to the Closing Date, the Guarantees will have been duly and validly authorized by the Endurance Guarantors and when the Indenture is duly executed and delivered by the Endurance Guarantors in accordance with its terms and upon the due execution, authentication and delivery of the Notes in accordance with the Indenture, and the issuance of the Notes in the sale to the Initial Purchasers contemplated by this Agreement, will constitute valid and binding obligations of the Endurance Guarantors, entitled to the benefits of the Indenture and enforceable against the Endurance Guarantors in accordance with their terms, except as such enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law).

(q) Each of the Issuer and the Endurance Guarantors has all the requisite corporate or other organizational power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement to be dated as of the Closing Date (the “ Registration Rights Agreement ”), which will be substantially in the form previously delivered to you. The Registration Rights Agreement has been duly authorized by the Issuer and the Endurance Guarantors, and upon its execution and delivery will constitute the valid and binding agreement of the Issuer and the Endurance Guarantors in accordance with its terms, except as such enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except that no representation is given with respect to Section 5 of the Registration Rights Agreement providing for indemnification and contribution.

(r) The Issuer has all the requisite corporate power and authority to execute, deliver and perform its obligations under the Exchange Notes (as defined in the Registration Rights Agreement) and each of the Endurance Guarantors has all the requisite corporate power and authority to perform its obligations under the related guarantees, and the Exchange Notes have been duly authorized by the Issuer and the related guarantees have been duly authorized by the Endurance Guarantors and the Exchange Notes if and when issued and authenticated in accordance with the terms of the Indenture and delivered in accordance with the exchange offer provided for in the Registration Rights Agreement (the “ Exchange Offer ”), will be validly issued and delivered and will constitute valid and binding obligations of the Issuer and the related guarantees performed in accordance with the terms of the Indenture, will constitute valid and binding obligations of the Endurance Guarantors , each enforceable against the Issuer and the Endurance Guarantors, as applicable, in accordance with their terms, except as such enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law), and will be entitled to the benefits of the Indenture.

(s) Each of the Issuer and the Endurance Guarantors has all requisite corporate or other organizational power and authority to execute, deliver and perform its obligations under the Senior Secured Credit Agreement and the other applicable Loan

 

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Documents (as defined in, and pursuant to, the Senior Secured Credit Agreement), as the case may be. On the Closing Date, the Senior Secured Credit Agreement and the other applicable Loan Documents (as defined in, and pursuant to, the Senior Secured Credit Agreement), as the case may be, will have been duly authorized, executed and delivered by the Issuer and each of the Endurance Guarantors and will constitute a valid and legally binding agreement of the Issuer and each of the Endurance Guarantors, enforceable against the Issuer and each of the Endurance Guarantors in accordance with its terms except as such enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). The Senior Secured Credit Agreement and the other Loan Documents will conform in all material respects to the description thereof in each of the Pricing Disclosure Package and the Final Offering Memorandum.

(t) After the Acquisition on the Closing Date, each of the Constant Contact Guarantors will have all requisite corporate or other organizational power to execute, deliver and perform the obligations under the Purchase Agreement, the Purchase Agreement Joinder, the Indenture, the Supplemental Indenture, the Registration Rights Agreement, the Registration Rights Agreement Joinder, guarantees related to the Exchange Notes and other applicable Loan Documents and each of the Purchase Agreement, the Purchase Agreement Joinder, the Indenture, the Supplemental Indenture, the Registration Rights Agreement, the Registration Rights Agreement Joinder, guarantees related to the Exchange Notes and other applicable Loan Documents will have been duly authorized by each of the Constant Contact Guarantors on the Closing Date, and constitute a valid and legally binding agreement of each of the Constant Contact Guarantors, enforceable against each of the Constant Contact guarantors in accordance with its terms, except as such enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except that no representation is given with respect to Section 5 of the Registration Rights Agreement providing for Indemnification and Contribution.

(u) Each of the Issuer and the Endurance Guarantors has all requisite corporate or other organizational power and authority to execute, deliver and perform its obligations under this Agreement, and this Agreement has been duly and validly authorized, executed and delivered by the Issuer and the Guarantors.

(v) The issue and sale of the Notes and the Guarantees, the execution, delivery and performance by the Issuer and the Guarantors of the Transaction Agreements, as applicable, and the consummation of the transactions contemplated hereby and thereby and by the Pricing Disclosure Package and Final Offering Memorandum, will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, impose any lien, charge or encumbrance upon any property or assets of the Issuer, the Guarantors or their respective subsidiaries (except for liens, charges or encumbrances upon any property or assets incurred in connection with transactions undertaken pursuant to the Senior Secured Credit Agreement and the other Loan Documents), or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Issuer or any of its

 

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subsidiaries is a party or by which the Issuer or any of its subsidiaries is bound or to which any of the property or assets of the Issuer, the Guarantors or any of their respective subsidiaries is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Issuer, the Guarantors or any of their respective subsidiaries, or (iii) result in any violation of any statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over the Issuer, the Guarantors or any of their respective subsidiaries or any of their properties or assets, except, with respect to clauses (i) and (iii), as would not reasonably be expected to have a Material Adverse Effect.

(w) No consent, approval, authorization or order of, or filing, registration or qualification with any U.S. court or governmental agency or body, or to the knowledge of the Issuer or the Guarantors, any non-U.S. court or governmental agency or body, having jurisdiction over Holdings, the Issuer, any of the subsidiaries of the Issuer or any of their respective properties or assets is required for the issue and sale of the Notes and the Guarantees, the execution, delivery and performance by the Issuer and the Guarantors of the Transaction Agreements and the consummation of the transactions contemplated hereby and thereby, except for (i) such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Initial Purchasers and (ii) as shall have been obtained or made on or prior to the Closing Date.

(x) The historical financial statements (including the related notes and supporting schedules) and the other financial data included or incorporated by reference in the Pricing Disclosure Package and the Final Offering Memorandum present fairly in all material respects the financial condition, results of operations and cash flows of the entities purported to be shown thereby, at the dates and for the periods indicated, and have been prepared in conformity with accounting principles generally accepted in the United States) applied on a consistent basis throughout the periods involved, except as otherwise stated therein; the other financial information included in each of the Pricing Disclosure Package and the Final Offering Memorandum has been derived from the accounting records of Holdings and its consolidated subsidiaries and presents fairly the information shown thereby in all material respects; and the pro forma financial information and the related notes thereto included in each of the Pricing Disclosure Package and the Final Offering Memorandum has been prepared in accordance with the Commission’s rules and guidance with respect to pro forma financial information, and the assumptions underlying such pro forma financial information are reasonable and are fairly summarized in each of the Pricing Disclosure Package and the Final Offering Memorandum in all material respects.

(y) BDO USA, LLP, who have certified certain financial statements of Holdings, whose reports are included or incorporated by reference in the Pricing Disclosure Package and the Final Offering Memorandum and who have delivered the initial letter referred to in Section 8(f) hereof, are independent registered public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (the “ PCAOB ”).

(z) PricewaterhouseCoopers LLP, who have certified certain financial statements of the Company, whose reports are included in the Pricing Disclosure Package and

 

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the Final Offering Memorandum and who have delivered the initial letter referred to in Section 8(f) hereof, are independent registered public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the Commission and the PCAOB.

(aa) Each of Holdings and the Company and their respective officers and directors are in compliance with the applicable provisions of the Sarbanes-Oxley Act of 2002 (the “ Sarbanes-Oxley Act ,” which term, as used herein, includes the rules and regulations of the Commission promulgated thereunder).

(bb) Each of Holdings and the Company maintains a system of internal control over financial reporting that is in compliance with the Sarbanes-Oxley Act and is sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization, (ii) transactions are recorded as necessary to permit preparation of the financial statements of Holdings and the Company in conformity with accounting principles generally accepted in the United States and to maintain accountability for its assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets of Holdings and the Company is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The interactive data in eXtensible Business Reporting Language incorporated by reference in the Pricing Disclosure Package and the Final Offering Memorandum fairly present the information called for in all material respects and in accordance with the rules of the Commission and guidelines applicable thereto.

(cc) (i) Each of Holdings and the Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act), (ii) such disclosure controls and procedures are designed to ensure that the information required to be disclosed by Holdings in the reports it files or submits under the Exchange Act is accumulated and communicated to management of Holdings, including its principal executive officer and principal financial officer, as appropriate, to allow timely decisions regarding required disclosure to be made; and (iii) such disclosure controls and procedures are effective in all material respects to perform the functions for which they were established.

(dd) Since the date of the latest audited financial statements incorporated by reference in the Pricing Disclosure Package and the Final Offering Memorandum, there has not been any material adverse change, or any development that could reasonably be expected to result in a material adverse change, in the condition (financial or otherwise), results of operations or business of Holdings, the Issuer and the Issuer’s subsidiaries, taken as a whole.

(ee) The Issuer, the Guarantors and each of the Issuer’s subsidiaries own or lease all such real and personal property necessary to the conduct of their respective businesses, except as would not reasonably be expected to have a Material Adverse Effect.

(ff) Each of Holdings, the Issuer and the Issuer’s subsidiaries have such permits, licenses, approvals, consents, franchises, certificates of need and other approvals or authorizations of governmental or regulatory authorities (“ Permits ”) as are necessary under applicable law to own their properties and conduct their businesses in the manner described in the Pricing Disclosure Package and the Final Offering Memorandum, except for any of the

 

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foregoing that could not, in the aggregate, reasonably be expected to have a Material Adverse Effect or except as described in the Pricing Disclosure Package and the Final Offering Memorandum. None of Holdings, the Issuer or any of the Issuer’s subsidiaries has received notice of any proceedings related to the revocation or modification of any such Permits that, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse Effect.

(gg) Except as set forth in the Pricing Disclosure Package and Final Offering Memorandum and as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, Holdings, the Issuer and each of the Issuer’s subsidiaries (i) own or otherwise possess adequate rights to use all material patents, trademarks, service marks, trade names, domain names, copyrights and registrations and applications thereof, and software (including trade secrets) necessary for the conduct of their respective businesses as conducted as of the Applicable Time, (ii) have no reason to believe that the conduct of their respective businesses as conducted as of the Applicable Time will infringe, violate or conflict with any such right of others and (iii) have not received any material written notice of any claim of infringement, violation or conflict with, any such rights of others.

(hh) Except as set forth in the Pricing Disclosure Package and the Final Offering Memorandum, there are no legal or governmental proceedings pending to which Holdings, the Issuer or any of the Issuer’s subsidiaries is a party or of which any property or assets of Holdings, the Issuer or any of the Issuer’s subsidiaries is the subject that could, in the aggregate, reasonably be expected to have a Material Adverse Effect or could, in the aggregate, reasonably be expected to have a material adverse effect on the performance by the Issuer and the Guarantors of the performance of this Agreement, the Indenture, the Notes, the Guarantees, the Registration Rights Agreement, the Exchange Securities (including the related guarantees) or the consummation of any of the transactions contemplated hereby. To the Issuer’s and each Guarantor’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or others.

(ii) Holdings, the Issuer and the Issuer’s subsidiaries, taken as a whole, are insured against such losses and risks and in such amounts as are reasonable and customary in the businesses in which they are engaged or as required by law.

(jj) Except as would not have a Material Adverse Effect, no labor disturbance by or dispute with the employees of the Issuer or any of its subsidiaries exists or, to the knowledge of the Issuer or any Guarantor, is imminent.

(kk) (i) Holdings, the Issuer and the Issuer’s subsidiaries (x) are, and, to the knowledge of the Issuer and the Guarantors, at all prior times were, in compliance with any and all applicable U.S. federal, state, local and non-U.S. laws, rules, regulations, requirements, decisions and orders relating to the protection of human health or safety, the environment, natural resources, or the use, transport, manufacture, treatment, storage, disposal or release of hazardous, toxic or radioactive materials, substances or wastes, pollutants or contaminants (collectively, “ Environmental Laws ”), (y) have received and are in compliance with all permits, licenses, certificates or other authorizations or approvals, and have obtained all financial assurances, required of them under applicable Environmental Laws to conduct their

 

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respective businesses, and (z) have not received notice of any actual or potential liability under or relating to any Environmental Laws, including for the investigation or remediation of any disposal or release of hazardous, toxic or radioactive materials, substances or wastes, pollutants or contaminants, and have no knowledge that any such notice is threatened, and (ii) to the knowledge of the Issuer and the Guarantors, there are no costs or liabilities associated with Environmental Laws of or relating to Holdings, the Issuer or the Issuer’s subsidiaries or the conduct their respective businesses, except in the case of each of (i) and (ii) above, for any such failure to comply, or failure to receive, or cost or liability, as would not, individually or in the aggregate, have a Material Adverse Effect; and (iii) except as described in each of the Pricing Disclosure Package and the Final Offering Memorandum, (x) there are no proceedings that are pending, or that are known to be contemplated, against Holdings, the Issuer or the Issuer’s subsidiaries under any Environmental Laws in which a governmental entity is also a party, other than such proceedings regarding which it is reasonably believed no monetary sanctions of $100,000 or more will be imposed, and (y) none of Holdings, the Issuer or the Issuer’s subsidiaries is aware of any issues regarding compliance with Environmental Laws, or liabilities or other obligations under Environmental Laws or concerning hazardous, toxic or radioactive materials, substances or wastes, pollutants or contaminants, in each case of clause (x) and (y) that could reasonably be expected to have a Material Adverse Effect.

(ll) Except, in each case, as would not have a Material Adverse Effect, the Issuer, the Guarantors and the Issuer’s subsidiaries have filed all federal, state, local and foreign tax returns required to be filed through the date hereof, subject to permitted extensions, and have paid all taxes due, except for items being contested in good faith for which adequate reserves for taxes have been established in accordance with generally accepted accounting principles, and no tax deficiency has been determined adversely to Holdings, the Issuer or the Issuer’s subsidiaries, nor does the Issuer or any Guarantor have any knowledge of any tax deficiencies that have been, or could reasonably be expected to be asserted against Holdings, the Issuer or the Issuer’s subsidiaries.

(mm) Except, in each case, as would not have a Material Adverse Effect, (i) each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Security Act of 1974, as amended (“ ERISA ”)) for which the Issuer or any member of its “Controlled Group” (defined as any organization which is a member of a controlled group of corporations within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended (the “ Code ”)) would have any liability (each a “ Plan ”) has been maintained in compliance with its terms and with the requirements of all applicable statutes, rules and regulations including ERISA and the Code; (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan excluding transactions effected pursuant to a statutory or administrative exemption; (iii) with respect to each Plan subject to Title IV of ERISA (A) no “reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur, (B) no “accumulated funding deficiency” (within the meaning of Section 302 of ERISA or Section 412 of the Code), whether or not waived, has occurred or is reasonably expected to occur, (C) the fair market value of the assets under each Plan exceeds the present value of all benefits accrued under such Plan (determined based on those assumptions used to fund such Plan), and (D) neither the Issuer nor any member of its Controlled Group has incurred, or reasonably expects to incur, any liability under Title IV of ERISA (other than contributions to the Plan or premiums

 

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to the Pension Benefit Guaranty Corporation in the ordinary course and without default) in respect of a Plan (including a “multiemployer plan”, within the meaning of Section 4001(c)(3) of ERISA); and (iv) each Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification.

(nn) Except as may be limited by applicable state corporation law or comparable laws or the Senior Secured Credit Agreement, no subsidiary of the Issuer is currently prohibited, directly or indirectly, from paying any dividends to the Issuer, from making any other distribution on such subsidiary’s capital stock, from repaying to the Issuer any loans or advances to such subsidiary from the Issuer or from transferring any of such subsidiary’s property or assets to the Issuer or any other subsidiary of the Issuer, except as described in the Pricing Disclosure Package and the Final Offering Memorandum.

(oo) Neither the Issuer nor any of the Guarantors is, and after giving effect to the offer and sale of the Notes and the application of the proceeds therefrom as described under “Use of Proceeds” in each of the Pricing Disclosure Package and the Final Offering Memorandum will be, required to be registered as an “investment company” under the Investment Company Act of 1940, as amended.

(pp) Immediately after the consummation of the Transactions and the other transactions contemplated by this Agreement, (i) the fair value and present fair saleable value of the assets of Holdings, the Issuer and the Issuer’s subsidiaries taken as a whole on a consolidated basis will exceed the sum of their stated liabilities and identified contingent liabilities taken as a whole; and (ii) Holdings, the Issuer and the Issuer’s subsidiaries on a going-concern basis will not be (a) left with unreasonably small capital with which to carry on their business as it is proposed to be conducted, (b) unable to pay their debts (contingent or otherwise) as they will mature or (c) otherwise insolvent.

(qq) None of Holdings, the Issuer or the Issuer’s subsidiaries is a party to any contract, agreement or understanding with any person (other than this Agreement) that could give rise to a valid claim against any of them or the Initial Purchasers for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Notes.

(rr) None of the transactions contemplated by this Agreement (including, without limitation, the use of the proceeds from the sale of the Notes), will violate or result in a violation of Section 7 of the Exchange Act, or any regulation promulgated thereunder, including, without limitation, Regulations T, U and X of the Board of Governors of the Federal Reserve System.

(ss) Neither the Issuer nor its affiliates has taken or will take, directly or indirectly, any action designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Issuer or the Guarantors in connection with the offering of the Notes.

(tt) None of the Issuer, any of the Guarantors or any of their respective subsidiaries or, to the knowledge of the Issuer or the Guarantors, any director, officer, agent,

 

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employee or any other person duly authorized to act and acting on behalf of the Issuer or any of the Guarantors or any of their respective subsidiaries has, in connection with the Issuer or the Guarantors or any of their respective subsidiaries, (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect material, unlawful payment to any foreign or domestic government official or employee from corporate funds, (iii) made any material bribe or kickback or other unlawful payment, or (iv) taken any action, directly or indirectly, that would constitute or result in (A) a violation by such person of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (“ FCPA ”) or the U.K. Bribery Act 2010 or (B) a material violation by such person of any other applicable anti-corruption or anti-bribery statute or regulation (collectively, the “ Anti-Corruption Laws ”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office. Holdings, the Issuer and the Issuer’s subsidiaries have instituted, and maintain and enforce, policies and procedures designed to promote and achieve continued compliance with the Anti-Corruption Laws.

(uu) The operations of the Issuer and the Guarantors and their respective subsidiaries are and have been conducted at all times in material compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “ Money Laundering Laws ”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer or any of the Guarantors or any of their respective subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Issuer or the Guarantors, threatened.

(vv) None of the Issuer or any of the Guarantors or any of their respective subsidiaries or, to the knowledge of the Issuer or the Guarantors, any director, officer, agent, employee or affiliate (other than the Initial Purchasers, as to whom the Issuer and the Guarantors make no representation) or any other person acting on behalf of the Issuer or any of the Guarantors or any of their respective subsidiaries is (i) currently a person with whom dealings are prohibited under any sanctions administered or enforced by the United States, including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (“ OFAC ”) and the U.S. Department of State, the United Nations Security Council, the European Union, the United Kingdom, including Her Majesty’s Treasury, Canada, Mexico, Belgium or Italy (collectively, “ Sanctions ” and any such person, a “ Sanctioned Person ”) or (ii) located, organized or resident in a country or territory that is the subject or target of Sanctions that broadly prohibit dealings with such country or territory (currently, Cuba, Iran, North Korea, Sudan, Syria and Crimea) (each, a “ Sanctioned Jurisdiction ”). The Issuer will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, (i) for the purpose of financing any dealings with or the activities of any person that is, at the time of such financing, a Sanctioned Person or is located, organized or resident in a Sanctioned Jurisdiction, or (ii) in

 

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any other manner, in each case, as would constitute or give rise to a violation by any person (including any person participating in the offering, whether as underwriter, advisor, investor or otherwise) of Sanctions. The Issuer, the Guarantors and their respective subsidiaries have instituted, and maintain and enforce, policies and procedures designed to promote and achieve continued compliance with Sanctions.

Any certificate signed by any officer of the Issuer or the Guarantors and delivered to the Representatives or counsel for the Initial Purchasers in connection with the offering of the Notes shall be deemed a representation and warranty by the Issuer or such Guarantor, jointly and severally, as to matters covered thereby, to each Initial Purchaser.

3. Purchase of the Notes by the Initial Purchasers, Agreements to Sell, Purchase and Resell.

(a) The Issuer agrees, on the basis of the representations, warranties, covenants and agreements of the Initial Purchasers contained herein and subject to all the terms and conditions set forth herein, to issue and sell to the Initial Purchasers and, upon the basis of the representations, warranties and agreements of the Issuer, the Endurance Guarantors and, upon execution and delivery of the Purchase Agreement Joinder, of each of the Constant Contact Guarantors, herein contained and subject to all the terms and conditions set forth herein, each Initial Purchaser agrees, severally and not jointly, to purchase from the Issuer, at a purchase price of 93.7525% of the principal amount thereof, the principal amount of Notes set forth opposite the name of such Initial Purchaser in Schedule I attached hereto. The Issuer shall not be obligated to deliver any of the securities to be delivered hereunder except upon payment for all of the securities to be purchased as provided herein.

(b) Each of the Initial Purchasers, severally and not jointly hereby represents and warrants to the Issuer that it will offer the Notes for resale upon the terms and conditions set forth in this Agreement and in the Pricing Disclosure Package. Each of the Initial Purchasers, severally and not jointly, hereby represents and warrants to, and agrees with, the Issuer, on the basis of the representations, warranties and agreements of the Issuer and the Guarantors, that such Initial Purchaser: (i) is a QIB with such knowledge and experience in financial and business matters as are necessary in order to evaluate the merits and risks of an investment in the Notes; (ii) in connection with the Exempt Resales, will solicit offers to buy the Notes only from, and will offer to sell the Notes only to, the Eligible Purchasers in accordance with this Agreement and on the terms contemplated by the Pricing Disclosure Package; and (iii) will not offer or sell the Notes, nor has it offered or sold the Notes by, or otherwise engaged in, any form of general solicitation or general advertising (within the meaning of Regulation D, including, but not limited to, advertisements, articles, notices or other communications published in any newspaper, magazine, or similar medium or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising) and will not engage in any directed selling efforts within the meaning of Rule 902 under the Securities Act, in connection with the offering of the Notes.

(c) The Initial Purchasers have not nor, prior to the later to occur of (A) the Closing Date and (B) completion of the distribution of the Notes, will not, use, authorize use of, refer to or distribute any material in connection with the offering and sale of the Notes other than

 

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(i) the Preliminary Offering Memorandum, the Pricing Disclosure Package or the Final Offering Memorandum, (ii) any written communication prepared by such Initial Purchaser and approved by the Issuer in writing, or (iii) any written communication relating to or that contains the preliminary or final terms of the Notes and Guarantees or their offering and/or other information that was included (including through incorporation by reference) in the Pricing Disclosure Package or the Final Offering Memorandum.

(d) Each of the Initial Purchasers hereby acknowledges that upon original issuance thereof, and until such time as the same is no longer required under the applicable requirements of the Securities Act, the Notes (and all securities issued in exchange therefore or in substitution thereof) shall bear legends substantially in the forms as set forth in the “Notice to Investors” section of the Pricing Disclosure Package and Final Offering Memorandum (along with such other legends as the Issuer and its counsel deem necessary).

Each of the Initial Purchasers understands that the Issuer and, for purposes of the opinions to be delivered to the Initial Purchasers pursuant to Sections 8(b) and 8(d) hereof, counsel to the Issuer and counsel to the Initial Purchasers, will rely upon the accuracy and truth of the foregoing representations, warranties and agreements, and the Initial Purchasers hereby consent to such reliance.

4. Delivery of the Notes and Payment Therefor . Delivery to the Initial Purchasers of and payment for the Notes shall be made at the office of Milbank, Tweed, Hadley & McCloy LLP, 28 Liberty Street, New York, New York 10005 at 10:30 a.m., New York City time, on February 9, 2016 (the “ Closing Date ”). The place of closing for the Notes and the Closing Date may be varied by agreement between the Initial Purchasers and the Issuer.

The Notes will be delivered to the Initial Purchasers, or the Trustee, as custodian for The Depository Trust Company (“ DTC ”), against payment by or on behalf of the Initial Purchasers of the purchase price therefor by wire transfer in immediately available funds, by causing DTC to credit the Notes to the account of the Initial Purchasers at DTC. The Notes will be evidenced by one or more global securities in definitive form (the “ Global Notes ”) and will be registered, in the case of the Global Notes, in the name of Cede & Co. as nominee of DTC, and in the other cases, in such names and in such denominations as the Initial Purchasers shall request prior to 10:30 a.m., New York City time, on the second business day preceding the Closing Date. The Notes to be delivered to the Initial Purchasers, or the Trustee, as custodian for DTC shall be made available to the Initial Purchasers in New York City for inspection and packaging not later than 10:30 a.m., New York City time, on the business day next preceding the Closing Date.

5. Agreements of the Issuer and the Guarantors . The Issuer, the Endurance Guarantors, and upon execution and delivery of the Purchase Agreement Joinder, each of the Constant Contact Guarantors, jointly and severally, agree with each of the Initial Purchasers as follows:

(a) The Issuer will promptly furnish to the Initial Purchasers, without charge, such number of copies of the Final Offering Memorandum as may then be amended or supplemented as they may reasonably request.

 

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(b) The Issuer and the Endurance Guarantors will prepare the Final Offering Memorandum in a form approved by the Representatives and will not make any amendment or supplement to the Pricing Disclosure Package or to the Final Offering Memorandum of which the Representatives shall not previously have been advised or to which the Representatives shall reasonably object after being so advised.

(c) Each of the Issuer and the Guarantors consents to the use of the Pricing Disclosure Package and the Final Offering Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.

(d) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event occurs or information becomes known that, in the judgment of the Issuer or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Final Offering Memorandum so that the Pricing Disclosure Package or the Final Offering Memorandum, as then amended or supplemented, does not include any untrue statement of material fact, or omit to state a material fact, necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Pricing Disclosure Package or the Final Offering Memorandum in order to comply with any law, the Issuer and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Initial Purchasers a reasonable number of copies thereof.

(e) None of Holdings, the Issuer or any of the Issuer’s subsidiaries will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representatives, which consent shall not be unreasonably withheld or delayed.

(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith neither the Issuer nor any Guarantor shall be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.

(g) For a period commencing on the date hereof and ending on the 60th day after the date of the Final Offering Memorandum, each of the Issuer and the Guarantors agrees not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed, or would be expected, to result in the disposition by any person at any time in the future of) any capital markets debt securities of the Issuer substantially similar to the Notes (other than the issuance of Exchange Securities pursuant to, or the filing of a registration statement pursuant to, the Registration Rights Agreement) or securities convertible into or exchangeable for such debt securities of the Issuer, or sell or grant options, rights or

 

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warrants with respect to such debt securities of the Issuer or securities convertible into or exchangeable for such debt securities of the Issuer, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Issuer, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Issuer or other securities, in cash or otherwise, or (iii) publicly announce an offering of any debt securities of the Issuer substantially similar to the Notes (other than the issuance of Exchange Securities pursuant to, or the filing of a registration statement pursuant to, the Registration Rights Agreement) or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representatives on behalf of the Initial Purchasers.

(h) At any time when Holdings is not subject to Section 13 or 15(d) of the Exchange Act, for the benefit of holders from time to time of Notes, it will furnish at its expense, on behalf of the Issuer, upon request, to holders of Notes and prospective purchasers of Notes, information satisfying the requirements of Rule 144A(d)(4) under the Securities Act.

(i) The Issuer will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Final Offering Memorandum under the caption “Use of Proceeds.”

(j) The Issuer will use its best efforts to permit the Notes to be eligible for clearance and settlement through DTC.

(k) During the period from the Closing Date until one year after the Closing Date, the Issuer will not, and will not permit any of its subsidiaries to, resell any Notes that have been acquired by any of them except for Notes resold in a transaction that complies with applicable securities laws.

(l) The Issuer and the Guarantors will not and will cause their affiliates (other than the Initial Purchasers, as to which no agreement is made) not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes. The Issuer and the Guarantors will take reasonable precautions designed to ensure that any offer or sale, direct or indirect, in the United States or to any U.S. person (as defined in Rule 902 under the Securities Act), of any Notes or any substantially similar security issued by the Issuer or any Guarantor, within six months subsequent to the date on which the distribution of the Notes has been completed (as notified to the Issuer by the Initial Purchasers), is made under restrictions and other circumstances reasonably designed not to affect the status of the offer and sale of the Notes in the United States and to U.S. persons contemplated by this Agreement as transactions exempt from the registration provisions of the Securities Act, including any sales pursuant to Rule 144A under, or Regulations D or S of, the Securities Act.

(m) None of the Issuer or the Guarantors, or any of their affiliates or any other person acting on their behalf (other than the Initial Purchasers, as to which no covenant is given) will (i) solicit offers for, or offer or sell, the Notes by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D or in any manner

 

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involving a public offering within the meaning of Section 4(a)(2) of the Securities Act or (ii) engage in any directed selling efforts within the meaning of Regulation S, and all such persons will comply with the offering restrictions requirement of Regulation S.

(n) The Issuer and Holdings will cause each of the Constant Contact Guarantors to execute and deliver to the Initial Purchasers the Purchase Agreement Joinder after the Acquisition on the Closing Date.

(o) The Issuer and Holdings will cause each of the Constant Contact Guarantors to execute and deliver to the Initial Purchasers the Registration Rights Agreement Joinder after the Acquisition on the Closing Date.

(p) The Issuer and Holdings will cause the written opinion of Cleary Gottlieb Steen & Hamilton LLP, as counsel to the Issuer and the Guarantors, addressed to the Initial Purchasers and dated the Closing Date, substantially in the form of Exhibit D hereto, to be furnished to the Initial Purchasers.

6. Agreement to Cooperate. The Issuer and Holdings hereby covenant and agree with the Initial Purchasers as follows:

 

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(a) After the Closing Date and until such time as the Initial Purchasers have completed the distribution of the Notes to Eligible Purchasers or any affiliate of the Initial Purchasers that holds Notes no longer holds any Notes (the “ Cooperation Period ”), at any time and from time to time (but not more than three (3) times), upon a written request (a “ Demand Notice ”) from the Initial Purchasers to the Issuer to assist the Initial Purchasers in connection with an offer and resale of the Notes, the Issuer and Holdings shall use their commercially reasonable efforts to furnish, within 15 Business Days following receipt of a Demand Notice, to the Initial Purchasers or any of their affiliates that hold any Notes, as may be set forth in the Demand Notice, printed or electronic copies of an offering memorandum (the “ Demand Offering Memorandum ”), substantially similar to the Final Offering Memorandum, with such necessary amendments or supplements thereto (which amendments and supplements may not be made solely through incorporation by reference without the consent of the Initial Purchasers, such consent not to be unreasonably withheld) and suitable for the contemplated offering, so that the Demand Offering Memorandum, including the documents incorporated by reference therein, would not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

(b) In connection with any such Demand Notice, the Initial Purchasers shall specify a sale date (a “ Sale Date ”), which shall not be earlier than 15 Business Days following the Issuer’s receipt of the related Demand Notice, and the Issuer and Holdings and the Initial Purchasers shall mutually determine the related settlement date (a “ Settlement Date ”).

(c) Upon request by the Initial Purchasers, the Issuer and Holdings shall use their commercially reasonable efforts, on or prior to the Sale Date or the Settlement Date, as applicable, to:

 

  (i) deliver or cause to be delivered to the Initial Purchasers opinions and negative assurance letters dated as of such Settlement Date and addressed to the Initial Purchasers, in customary form and substantially consistent with those provided pursuant to Sections 8(b) and 8(c) of this Agreement;

 

  (ii) deliver or cause to be delivered to the Initial Purchasers accountants’ “comfort” letters dated such Sale Date and “bring-down” comfort letters dated such Settlement Date and addressed to the Initial Purchasers with respect to the Demand Offering Memorandum and the documents incorporated by reference therein from BDO USA, LLP and PricewaterhouseCoopers LLP, in customary form and substantially consistent with those provided pursuant to Sections 8(e) and 8(f) of this Agreement;

 

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  (iii) deliver or cause to be delivered to the Initial Purchasers a certificate of the Chief Executive Officer and Chief Financial Officer of the Issuer and Holdings, or other officers satisfactory to the Initial Purchasers, dated such Settlement Date and addressed to the Initial Purchasers, substantially consistent with that provided pursuant to Section 8(h) of this Agreement;

 

  (iv) use their commercially reasonable efforts to assist the Initial Purchasers in their marketing efforts for the resale of the Notes in connection with a Demand Notice by (A) providing to the Initial Purchasers and their counsel all information they reasonably request to update due diligence (including by way of conference calls) to each Sale Date and each Settlement Date, (B) causing senior management of Holdings to be available to participate in a reasonable number of conference calls to be scheduled by the Initial Purchasers with prospective investors and in a customary “road show” for debt securities on no more than three occasions that shall not, in each case, exceed five Business Days (unless otherwise agreed by the Issuer and Holdings) and (C) cooperate with the Initial Purchasers in the preparation of an updated investor presentation;

 

  (v) furnish to the Initial Purchasers and to counsel for the Initial Purchasers, without charge, as many copies of each Final Offering Memorandum and any amendments and supplements thereto as they may reasonably request;

 

  (vi) inform the Initial Purchasers promptly if at any time the Issuer or Holdings becomes aware that the Demand Offering Memorandum contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and as promptly as reasonably practicable, prepare and furnish to the Initial Purchasers an amendment or supplement to the Demand Offering Memorandum that corrects such misstatement or omission;

 

  (vii) not make any amendment or supplement to the Demand Offering Memorandum (other than as a result of the filing of reports required to be filed under the Exchange Act) or otherwise distribute any Free Writing Offering Document without the prior consent of the Initial Purchasers, which consent shall not be unreasonably withheld, after reasonable notice thereof; and

 

  (viii) maintain a rating for the Notes from S&P and Moody’s

 

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(d) The Issuer and Holdings shall pay or cause to be paid all expenses, costs, fees and taxes incident to and in connection with the Issuer’s and Holdings’ performance of its obligations under this Section 6 on the same basis, mutatis mutandis , as set forth in Section 7 hereof.

(e) The Issuer and Holdings may, for a period (a “ Blackout Period ”) of up to 60 days in any three-month period, not to exceed 90 days in any twelve-month period, suspend its obligations under this Section 6 if the Board of Directors of Holdings reasonably determines that a Demand Offering Memorandum is not or will not be usable under circumstances relating to corporate developments, public filings with the SEC and similar events (including the period prior to the filing of any Form 10-K or Form 10-Q in which the financial statements are considered “stale” for purposes of obtaining accountant “comfort” letters).

7. Expenses . Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Issuer and the Guarantors jointly and severally agree to pay all expenses, costs, fees and taxes incident to and in connection with: (a) the preparation, printing, filing and distribution of the Pricing Disclosure Package and the Final Offering Memorandum (including, without limitation, financial statements and exhibits) and all amendments and supplements thereto (including the fees, disbursements and expenses of the Issuer’s and the Guarantors’ accountants and counsel, but not, however, legal fees and expenses of the Initial Purchasers’ counsel incurred in connection therewith); (b) the preparation, printing (including, without limitation, word processing and duplication costs) and delivery of this Agreement, the Indenture, the Registration Rights Agreement, all Blue Sky memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection therewith and with the Exempt Resales (but not, however, legal fees and expenses of the Initial Purchasers’ counsel incurred in connection with any of the foregoing other than fees of such counsel plus reasonable disbursements incurred in connection with the preparation, printing and delivery of such Blue Sky memoranda); (c) the issuance and delivery by the Issuer of the Notes and by the Guarantors of the Guarantees and any taxes payable in connection therewith; (d) the qualification of the Notes for offer and sale under the securities or Blue Sky laws of the several states and any foreign jurisdictions as the Initial Purchasers may reasonably designate (including, without limitation, the reasonable fees and disbursements of the Initial Purchasers’ counsel relating to such registration or qualification); (e) the furnishing of such copies of the Pricing Disclosure Package and the Final Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with the Exempt Resales; (f) the preparation of certificates for the Notes (including, without limitation, printing and engraving thereof); (g) the approval of the Notes by DTC for “book-entry” transfer (including fees and expenses of counsel for the Initial Purchasers); (h) the rating of the Notes; (i) the obligations of the Trustee, any agent of the Trustee and the counsel for the Trustee in connection with the Indenture and theNotes; (j) the performance by the Issuer and the

 

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Guarantors of their other obligations under this Agreement; (k) the travel expenses incurred by or on behalf of representatives of the Issuer in connection with attending or hosting meetings with prospective purchasers of the Notes, and expenses associated with any electronic road show (it being understood that the Initial Purchasers, collectively, shall bear one-half of the costs associated with any chartered aircraft and that the Issuer and the Initial Purchasers will each pay their own costs associated with hotel accommodations) and (l) any other expenses of each Initial Purchaser and the Issuer incident to the performance by the Issuer of its obligations hereunder; provided , however , that except as specifically provided in this Section 7 and in Section 12, the Initial Purchasers shall pay their own costs and expenses in connection with their legal counsel and presentations for prospective purchasers of the Notes.

8. Conditions to Initial Purchasers Obligations . The respective obligations of the Initial Purchasers hereunder are subject to the accuracy in all material respects (except to the extent already qualified by materiality, in which case such obligations shall be subject to the accuracy in all respects), when made and on and as of the Closing Date, of the representations and warranties of the Issuer and the Guarantors contained herein, to the performance by the Issuer and the Guarantors of their respective obligations hereunder in all material respects, and to each of the following additional terms and conditions:

(a) All corporate proceedings and other legal matters incident to authorization, form and validity of the Transaction Agreements, the Pricing Disclosure Package and the Final Offering Memorandum shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Issuer and the Guarantors shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.

(b) Cleary Gottlieb Steen & Hamilton LLP shall have furnished to the Initial Purchasers its written opinion and negative assurance letter, as counsel to the Issuer and the Endurance Guarantors, addressed to the Initial Purchasers and dated the Closing Date, substantially in the form of Exhibit B and Exhibit C hereto.

(c) The Representatives shall have received from Morris, Nichols, Arsht & Tunnell LLP, special Delaware counsel to the Issuer, Durham, Jones & Pinegar, P.C., special Utah counsel to the Issuer, Troutman Sanders LLP, special Georgia counsel to the Issuer, and Locke Lord LLP, special Florida counsel to the Issuer, such opinions, dated the Closing Date and addressed to the Initial Purchasers, substantially in the Form of Exhibit E-1 through E-5 hereto.

(d) The Initial Purchasers shall have received from Milbank, Tweed, Hadley & McCloy LLP, counsel for the Initial Purchasers, such opinion and negative assurance letter, dated the Closing Date, with respect to the issuance and sale of the Notes, the Pricing Disclosure Package, the Final Offering Memorandum and other related matters as the Initial Purchasers may reasonably require, and the Issuer and the Guarantors shall have furnished to such counsel such documents and information as such counsel reasonably requests for the purpose of enabling them to pass upon such matters.

 

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(e) At the time of execution of this Agreement, the Initial Purchasers shall have received from BDO USA, LLP and PricewaterhouseCoopers LLP letters, in form and substance satisfactory to the Initial Purchasers, addressed to the Initial Purchasers and dated the date hereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the Commission and the PCAOB and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure Package, as of a date not more than two business days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and (iii) covering such other matters as are ordinarily covered by accountants’ “comfort letters” to initial purchasers.

(f) With respect to the letters of BDO USA, LLP and PricewaterhouseCoopers LLP referred to in the preceding paragraph and delivered to the Initial Purchasers concurrently with the execution of this Agreement (each, an “ initial letter ”), the Issuer and the Company shall have furnished to the Initial Purchasers “bring-down letters” of such accountants, addressed to the Initial Purchasers and dated the Closing Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the Commission and the PCAOB, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in each of the Pricing Disclosure Package or the Final Offering Memorandum, as of a date not more than two business days prior to the Closing Date), the conclusions and findings of such firm with respect to the financial information and other matters covered by each initial letter and (iii) confirming in all material respects the conclusions and findings set forth in each initial letter.

(g) Since the dates as of which information is given in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto), there shall not have been, or reasonably expected to be, any change or development in the condition (financial or otherwise), business or results of operations of Holdings, the Issuer and the Issuer’s subsidiaries, taken as a whole and after giving effect to the Transactions, except as set forth in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto), the effect of which is, or would reasonably be expected to become, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto).

(h) The Issuer and each Guarantor shall have furnished or caused to be furnished to the Initial Purchasers dated as of the Closing Date a certificate of the Chief Executive Officer and Chief Financial Officer of the Issuer and each Guarantor, or other officers satisfactory to the Initial Purchasers, containing a statement that:

(i) The representations and warranties of each of the Issuer and the Guarantors in Section 2 are true and correct on and as of the Closing Date, and each of the Issuer and the Guarantors have complied with all its respective agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and

 

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(ii) They have examined the Pricing Disclosure Package and the Final Offering Memorandum, and, in their opinion, (A) the Pricing Disclosure Package, as of the Applicable Time, and the Final Offering Memorandum, as of the date of the Final Offering Memorandum and as of the Closing Date, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (B) since the date of the Pricing Disclosure Package and the Final Offering Memorandum, no event has occurred which should have been set forth in a supplement or amendment to the Pricing Disclosure Package and the Final Offering Memorandum that was not set forth in a supplement or amendment.

(i) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Issuer’s debt securities by any “nationally recognized statistical rating organization”, as that term is defined by the Commission in Section 15E of the Exchange Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Issuer’s debt securities.

(j) The Issuer shall have taken all acts reasonably required to be taken by it to have the Notes be eligible for clearance and settlement through DTC.

(k) The Initial Purchasers shall have received a counterpart of the Registration Rights Agreement that shall have been executed and delivered by duly authorized officers of the Issuer and each of the Endurance Guarantors.

(l) Each of the Issuer, the Endurance Guarantors and the Trustee shall have executed and delivered the Indenture (including the Guarantees contained therein), and the Initial Purchasers shall have received a copy thereof, duly executed by such parties.

(m) Each of the Issuer and the Trustee shall have executed and delivered the Notes, and the Initial Purchasers shall have received copies thereof, duly executed by such parties.

(n) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the NASDAQ or the NYSE Amex Equities or in the over-the-counter market shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a general moratorium on commercial banking activities shall have been declared by federal or state authorities, and (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis the effect of which on financial markets is such as to make it, in the judgment the Representatives, impractical or inadvisable to proceed with the offering, sale or delivery of the Notes as contemplated in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto) and the Final Offering Memorandum (exclusive of any amendment or supplement thereto).

 

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(o) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority or court that would, as of the Closing Date, prevent the issuance or sale of the Notes or the issuance of the Guarantees.

(p) The Representatives shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Issuer and the Guarantors in their respective jurisdictions of organization, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.

(q) Substantially concurrently with or prior to the issue and sale of the Notes by the Issuer, the Issuer shall have entered into the Refinancing Revolving Facility and the Incremental Term Facility (and such agreement shall be effective in accordance with its terms); the Representatives shall have received conformed counterparts of the Guarantors thereof and all other documents and agreements entered into and received thereunder in connection with the closing of the Refinancing Revolving Facility and the Incremental Term Facility in form and substance reasonably satisfactory to the Representatives.

(r) Substantially concurrently with or prior to the issuance and sale of the Notes by the Issuer, the Issuer shall have consummated the Transactions.

(s) All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Initial Purchasers.

9. Indemnification and Contribution .

(a) The Issuer, the Endurance Guarantors, and upon execution and delivery of the Purchase Agreement Joinder, each of the Constant Contact Guarantors, jointly and severally with the Issuer and the Endurance Guarantors, hereby agrees to indemnify and hold harmless each Initial Purchaser, its directors, officers and employees and each person, if any, who controls, as of the date hereof, any Initial Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of Notes), to which that Initial Purchaser, director, officer, employee or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained (A) in the Pricing Disclosure Package, the Final Offering Memorandum, or in any amendment or supplement thereto or (B) in any Free Writing Offering Document or in the recorded electronic roadshow made available to investors with the written approval of the Issuer (the “ Recorded Road Show ”), or (ii) the omission or alleged omission to state in the Pricing Disclosure Package, the Final Offering Memorandum, or in any amendment or supplement thereto or in any Free Writing Offering Document or in the Recorded Road Show, any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and shall reimburse each Initial Purchaser and each such director, officer,

 

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employee or controlling person promptly upon demand, for any legal or other expenses reasonably incurred by that Initial Purchaser, director, officer, employee or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred; provided, however , that the Issuer and the Guarantors shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in the Pricing Disclosure Package, the Final Offering Memorandum, or in any such amendment or supplement thereto or in any Free Writing Offering Document or in the Recorded Road Show, in reliance upon and in conformity with written information concerning such Initial Purchaser furnished to the Issuer through the Representatives by or on behalf of any Initial Purchaser specifically for inclusion therein, which information consists solely of the information specified in Section 9(e) with respect to the Preliminary Offering Memorandum and the Final Offering Memorandum. The foregoing indemnity agreement is in addition to any liability that the Issuer or the Guarantors may otherwise have to any Initial Purchaser or to any director, officer, employee or controlling person of that Initial Purchaser.

(b) Each Initial Purchaser, severally and not jointly, hereby agrees to indemnify and hold harmless as of the date hereof, the Issuer, the Endurance Guarantors, and upon execution and delivery of the Purchase Agreement Joinder, each of the Constant Contact Guarantors and their respective officers and employees, each of their respective directors, and each person, if any, who controls, as of the date hereof, the Issuer and each Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which, as of the date hereof, the Issuer, each Guarantor or any such director, officer, employee or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained (A) in the Pricing Disclosure Package or the Final Offering Memorandum or in any amendment or supplement thereto or (B) in any Free Writing Offering Document or in the Recorded Road Show, or (ii) the omission or alleged omission to state in the Pricing Disclosure Package or the Final Offering Memorandum, or in any amendment or supplement thereto or in any Free Writing Offering Document or in the Recorded Road Show, any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and shall reimburse the Issuer and the Guarantors and each such director, officer, employee or controlling person promptly upon demand, for any legal or other expenses reasonably incurred by that Initial Purchaser, director, officer, employee or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information concerning such Initial Purchaser furnished to the Issuer through the Representatives by or on behalf of that Initial Purchaser specifically for inclusion therein, which information is limited to the information set forth in Section 9(e). The foregoing indemnity agreement is in addition to any liability that any Initial Purchaser may otherwise have to the Issuer, any Guarantor or any such director, officer, employee or controlling person.

 

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(c) Promptly after receipt by an indemnified party under this Section 9 of notice of any claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under this Section 9, notify the indemnifying party in writing of the claim or the commencement of that action; provided , however , that the failure to notify the indemnifying party shall not relieve it from any liability that it may have under Sections 9(a) and (b) above except to the extent it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure and; provided, further, that the failure to notify the indemnifying party shall not relieve it from any liability that it may have to an indemnified party otherwise than under Sections 9(a) and (b) above. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under this Section 9 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided , however , that the indemnified party shall have the right to employ counsel to represent the indemnified party and such indemnified party’s respective directors, officers, employees and controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the indemnified party against the indemnifying party under this Section 9, if (i) the indemnifying party and the indemnified party shall have so mutually agreed; (ii) the indemnifying party fails within a reasonable time to retain counsel reasonably satisfactory to the indemnified party; (iii) the indemnified party and its respective directors, officers, employees and controlling persons shall have reasonably concluded, based on the advice of counsel, that there may be legal defenses available to them that are different from or in addition to those available to the indemnifying party; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the indemnifying party, on the one hand, and the indemnified party, on the other hand, and representation of both sets of parties by the same counsel would present a conflict due to actual or potential differing interests between them, and in any such event the fees and expenses of such separate counsel shall be paid by the indemnifying party. No indemnifying party shall (x) without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and does not include a statement as to, or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party, or (y) be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with the consent of the indemnifying party or if there be a final judgment of the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment.

 

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(d) If the indemnification provided for in this Section 9 shall for any reason be unavailable to or insufficient to hold harmless an indemnified party under Section 9(a) or 9(b) in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein (other than by virtue of the failure of an indemnified party to notify the indemnifying party of its right to indemnification pursuant to subsection (a) or (b) above, where such failure materially prejudices the indemnifying party (through the forfeiture of substantive rights or defenses)), then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received by the Issuer and each Guarantor, on the one hand, and the Initial Purchasers, on the other, from the offering of the Notes, or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Issuer and each Guarantor, on the one hand, and the Initial Purchasers, on the other, with respect to the statements or omissions that resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by the Issuer and each Guarantor, on the one hand, and the Initial Purchasers, on the other, with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Notes purchased under this Agreement (before deducting expenses) received by the Issuer and each Guarantor, on the one hand, and the total discounts and commissions received by the Initial Purchasers with respect to the Notes purchased under this Agreement, on the other hand, bear to the total gross proceeds from the offering of the Notes under this Agreement. The relative fault shall be determined by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuer and the Guarantors, on the one hand, or the Initial Purchasers on the other hand, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission and any other equitable considerations appropriate in the circumstances. The Issuer, each Guarantor and the Initial Purchasers agree that it would not be just and equitable if contributions pursuant to this Section 9(d) were to be determined by pro rata allocation (even if the Initial Purchasers were treated as one entity for such purpose) or by any other method of allocation that does not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Section 9(d) shall be deemed to include, for purposes of this Section 9(d), any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending or preparing to defend any such action or claim. Notwithstanding the provisions of this Section 9(d), no Initial Purchaser shall be required to contribute any amount in excess of the amount of discounts and commissions received by such Initial Purchaser with respect to the Notes purchased under this Agreement. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Initial Purchasers’ obligations to contribute as provided in this Section 9(d) are several in proportion to their respective purchase obligations and not joint. Notwithstanding the foregoing, none of the Constant Contact Guarantors shall have any rights or obligations pursuant to this Section 9(d) until such time as each of the Constant Contact Guarantors shall have executed and delivered the Purchase Agreement Joinder.

 

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(e) The Initial Purchasers severally confirm and the Issuer, the Endurance Guarantors, and upon the execution and delivery of the Purchase Agreement Joinder, each of the Constant Contact Guarantors acknowledge and agree that the statements with respect to the offering of the Notes by the Initial Purchasers set forth in the second sentence of the fourth paragraph, the second sentence of the seventh paragraph, the first and second sentences of the eighth paragraph and the second sentence of the twenty-second paragraph of the section entitled “Plan of Distribution” in the Pricing Disclosure Package and the Final Offering Memorandum are correct and constitute the only information concerning such Initial Purchasers furnished in writing to the Issuer or the Guarantors by or on behalf of the Initial Purchasers specifically for inclusion in the Pricing Disclosure Package and the Final Offering Memorandum or in any amendment or supplement thereto.

(f) The remedies provided for in this Section 9 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any indemnified party at law or in equity.

10. Defaulting Initial Purchasers .

(a) If, on the Closing Date, any Initial Purchaser defaults in its obligations to purchase the Notes that it has agreed to purchase under this Agreement, the remaining non-defaulting Initial Purchasers may in their discretion arrange for the purchase of such Notes by the non-defaulting Initial Purchasers or other persons satisfactory to the Issuer on the terms contained in this Agreement. If, within 36 hours after any such default by any Initial Purchaser, the non-defaulting Initial Purchasers do not arrange for the purchase of such Notes, then the Issuer shall be entitled to a further period of 36 hours within which to procure other persons reasonably satisfactory to the non-defaulting Initial Purchasers to purchase such Notes on such terms. In the event that within the respective prescribed periods, the non-defaulting Initial Purchasers notify the Issuer that they have so arranged for the purchase of such Notes, or the Issuer notifies the non-defaulting Initial Purchasers that it has so arranged for the purchase of such Notes, either the non-defaulting Initial Purchasers or the Issuer may postpone the Closing Date for up to seven full business days in order to effect any changes that in the opinion of counsel for the Issuer or counsel for the Initial Purchasers may be necessary in the Pricing Disclosure Package, the Final Offering Memorandum or in any other document or arrangement, and the Issuer agrees to promptly prepare any amendment or supplement to the Pricing Disclosure Package or the Final Offering Memorandum that effects any such changes. As used in this Agreement, the term “Initial Purchaser” includes, for all purposes of this Agreement unless the context requires otherwise, any party not listed in Schedule I attached hereto that, pursuant to this Section 10, purchases Notes that a defaulting Initial Purchaser agreed but failed to purchase.

(b) If, after giving effect to any arrangements for the purchase of the Notes of a defaulting Initial Purchaser or Initial Purchasers by the non-defaulting Initial Purchasers and the Issuer as provided in paragraph (a) above, the aggregate principal amount of such Notes that remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Notes, then the Issuer shall have the right to require each non-defaulting Initial Purchaser to purchase the principal amount of Notes that such Initial Purchaser agreed to purchase hereunder plus such Initial Purchaser’s pro rata share (based on the principal amount of Notes that such

 

31


Initial Purchaser agreed to purchase hereunder) of the Notes of such defaulting Initial Purchaser or Initial Purchasers for which such arrangements have not been made; provided that the non-defaulting Initial Purchasers shall not be obligated to purchase more than 110% of the aggregate principal amount of Notes that it agreed to purchase on the Closing Date pursuant to the terms of Section 3 hereof.

(c) If, after giving effect to any arrangements for the purchase of the Notes of a defaulting Initial Purchaser or Initial Purchasers by the non-defaulting Initial Purchasers and the Issuer as provided in paragraph (a) above, the aggregate principal amount of such Notes that remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the Notes, or if the Issuer shall not exercise the right described in paragraph (b) above, then this Agreement shall terminate without liability on the part of the non-defaulting Initial Purchasers. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of the Issuer or the Guarantors, except that the Issuer and each of the Guarantors will continue to be liable for the payment of expenses as set forth in Sections 7 and 12 hereof and except that the provisions of Section 9 hereof shall not terminate and shall remain in effect.

(d) Nothing contained herein shall relieve a defaulting Initial Purchaser of any liability it may have to the Issuer, the Guarantors or any non-defaulting Initial Purchaser for damages caused by its default.

11. Termination . The obligations of the Initial Purchasers hereunder may be terminated by the Initial Purchasers by notice given to and received by the Issuer prior to delivery of and payment for the Notes if, prior to that time, any of the events described in Sections 8(f), (h), (m) or (n) hereof shall have occurred or if the Initial Purchasers shall decline to purchase the Notes for any reason permitted under this Agreement.

12. Reimbursement of Initial Purchasers’ Expenses . If the sale of the Notes provided for herein is not consummated because any condition to the obligations of the Initial Purchasers set forth in Section 8 hereof is not satisfied, because of any termination pursuant to Section 11 hereof or because of any refusal, inability or failure on the part of the Issuer or the Guarantors to perform any agreement herein or to comply with any provision hereof, other than by reason of a default by any of the Initial Purchasers, including as described in Section 10 hereof, the Issuer will reimburse the Initial Purchasers through the Representatives on behalf of the Initial Purchasers on demand for all reasonable expenses (including reasonable fees and disbursements of Milbank, Tweed, Hadley & McCloy LLP) that shall have been incurred by them in connection with the proposed purchase and sale of the Notes.

13. Notices, etc . All statements, requests, notices and agreements hereunder shall be in writing, and:

(a) if to any Initial Purchaser, shall be delivered or sent by hand delivery, mail, telex, overnight courier or facsimile transmission to the Representatives c/o Goldman, Sachs & Co., 200 West Street, New York, New York 10282, Attention: Registration Department, c/o Credit Suisse Securities (USA) LLC, Eleven Madison Avenue, New York, New York 10010, Attention: LCD-IBCM (Fax: 212-325-4296) and c/o Jefferies LLC, 520 Madison Avenue, New York, New York 10022, Attention: General Counsel and with a copy to Milbank, Tweed, Hadley & McCloy LLP, 28 Liberty Street, New York, New York 10005, Attention: Rod Miller (Fax: 212-822-5022);

 

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(b) if to the Issuer or any Guarantor, shall be delivered or sent by mail, telex, overnight courier or facsimile transmission to EIG Investors Corp., c/o Endurance International Group Holdings, Inc., 10 Corporate Drive, Burlington, MA 01803, Attention: General Counsel, with a copy to Cleary Gottlieb Steen & Hamilton LLP, One Liberty Plaza, New York, New York 10006, Attention: Sandra L. Flow, Esq. (Fax: 212-225-3999);

provided , however , that any notice to an Initial Purchaser pursuant to Section 9(c) shall be delivered or sent by hand delivery, mail, telex or facsimile or electronic transmission to such Initial Purchaser at its address set forth in its acceptance telex to the Representatives, which address will be supplied to any other party hereto by the Representatives upon request. Any such statements, requests, notices or agreements shall take effect at the time of receipt thereof. The Issuer shall be entitled to act and rely upon any request, consent, notice or agreement given or made on behalf of the Initial Purchasers by the Representatives.

14. USA PATRIOT Act . In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Initial Purchasers are required to obtain, verify and record information that identifies their respective clients, including the Issuer, which information may include the name and address of their respective clients, as well as other information that will allow the Initial Purchasers to properly identify their respective clients.

15. Persons Entitled to Benefit of Agreement . This Agreement shall inure to the benefit of and be binding upon the Initial Purchasers, the Issuer, the Endurance Guarantors, and upon execution and delivery of the Purchase Agreement Joinder, each of the Constant Contact Guarantors and their respective successors, directors, officers and each person or persons, if any, controlling any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act. This Agreement and the terms and provisions hereof are for the sole benefit of only those persons, except that the representations, warranties, indemnities and agreements of the Issuer and the Guarantors contained in this Agreement shall also be deemed to be for the benefit of directors, officers and employees of the Initial Purchasers and each person or persons, if any, controlling any Initial Purchaser within the meaning of Section 15 of the Securities Act. Nothing in this Agreement is intended or shall be construed to give any person, other than the persons referred to in this Section 15, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein.

16. Survival . The respective indemnities, rights of contribution, representations, warranties and agreements of the Initial Purchasers, the Issuer, the Endurance Guarantors, and upon execution and delivery of the Purchase Agreement Joinder, each of the Constant Contact Guarantors contained in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall survive the delivery of and payment for the Notes and shall remain in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of any of them or any person controlling any of them.

 

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17. Definition of the Terms “Business Day”, “Affiliate”, and “Subsidiary” . For purposes of this Agreement, (a) “business day” means any day on which the New York Stock Exchange, Inc. is open for trading, and (b) “affiliate” and “subsidiary” have the meanings set forth in Rule 405 under the Securities Act.

18. Authority of the Representatives. Any action by the Initial Purchasers hereunder may be taken by Goldman Sachs, Credit Suisse and Jefferies, on behalf of the Initial Purchasers, and any such action taken by Goldman Sachs, Credit Suisse and Jefferies shall be binding upon the Initial Purchasers.

19. Governing Law & Venue . This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by and construed in accordance with the laws of the State of New York. Each of the Issuer, the Guarantors and the Initial Purchasers agrees that any suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in any State or U.S. federal court in The City of New York and County of New York, and waives any objection that such party may now or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the exclusive jurisdiction of such courts in any suit, action or proceeding.

20. Waiver of Jury Trial . Each of the Initial Purchasers, the Issuer, the Endurance Guarantors, and upon execution and delivery of the Purchase Agreement Joinder, each of the Constant Contact Guarantors hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.

21. No Fiduciary Duty . The Issuer, the Endurance Guarantors, and upon execution and delivery of the Purchase Agreement Joinder, each of the Constant Contact Guarantors acknowledges and agrees that in connection with this offering, or any other services the Initial Purchasers may be deemed to be providing hereunder, notwithstanding any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances previously or subsequently made by the Initial Purchasers: (a) no fiduciary or agency relationship between the Issuer, any Guarantor and any other person, on the one hand, and the Initial Purchasers, on the other, exists; (b) the Initial Purchasers are not acting as advisors, expert or otherwise, to the Issuer or the Guarantors, including, without limitation, with respect to the determination of the purchase price of the Notes, and such relationship between the Issuer and the Guarantors, on the one hand, and the Initial Purchasers, on the other, is entirely and solely commercial, based on arms-length negotiations; (c) none of the Representatives nor any other Initial Purchaser is advising the Issuer, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction; (d) any duties and obligations that the Initial Purchasers may have to the Issuer and the Guarantors shall be limited to those duties and obligations specifically stated herein; (e) the Initial Purchasers and their respective affiliates may have interests that differ from those of the Issuer and the Guarantors; and (f) the Issuer and the Guarantors have consulted their own legal and financial advisors to the extent they deemed appropriate. Each of the Issuer and the Guarantors hereby waives any claims that the Issuer and the Guarantors may have against the Initial Purchasers with respect to any breach of fiduciary duty in connection with the Notes.

 

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22. Counterparts . This Agreement may be executed in one or more counterparts, and if executed in more than one counterpart, the executed counterparts shall each be deemed to be an original but all such counterparts shall together constitute one and the same instrument.

23. Headings . The headings herein are inserted for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.

[ Remainder of Page Intentionally Left Blank ]

 

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EXECUTION VERSION

If the foregoing correctly sets forth the agreement between the Issuer and the Initial Purchasers, please indicate your acceptance in the space provided for that purpose below.

 

Very truly yours,
EIG INVESTORS CORP.
  By:   /s/ Hari Ravichandran
    Name: Hari Ravichandran
    Title: Chief Executive Officer
ENDURANCE INTERNATIONAL GROUP HOLDINGS, INC.
  By:   /s/ Hari Ravichandran
    Name: Hari Ravichandran
    Title: Chief Executive Officer

 

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THE ENDURANCE INTERNATIONAL GROUP, INC.

DOMAIN NAME HOLDING COMPANY, INC.

ENDURANCE INTERNATIONAL GROUP – WEST, INC.

HOSTGATOR.COM LLC

A SMALL ORANGE, LLC

BLUEHOST INC.

FASTDOMAIN INC

By:   /s/ Hari Ravichandran
 

Name: Hari Ravichandran

Title: Chief Executive Officer

 

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Accepted:

 

GOLDMAN, SACHS & CO.

CREDIT SUISSE SECURITIES (USA) LLC

JEFFERIES LLC

GOLDMAN, SACHS & CO.
By:   /s/ Ariel Fox
  By: Ariel Fox
  Name: Vice President
CREDIT SUISSE SECURITIES (USA) LLC
By:   /s/ Edward Lee
  Name: Edward Lee
  Title: Director
JEFFERIES LLC
By:   /s/ John C. Duggan
  Name: John. C. Duggan
  Title: Managing Director

Acting for themselves and the other several Initial Purchasers named in Schedule I hereto.

 

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Exhibit 4.6

EXECUTION VERSION

EIG Investors Corp.

10.875% Senior Notes Due 2024

Exchange and Registration Rights Agreement

February 9, 2016

Goldman, Sachs & Co.,

Credit Suisse Securities (USA) LLC

Jefferies LLC

As representatives of the several Initial Purchasers

named in Schedule I to the Purchase Agreement

c/o Goldman, Sachs & Co.

200 West Street

New York, New York 10282-2198

Ladies and Gentlemen:

THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT (this “ Agreement ”) is made and entered into as of February 9, 2016, among EIG Investors Corp. (the “ Issuer ”), a Delaware corporation and a wholly owned subsidiary of Endurance International Group Holdings, Inc., a Delaware corporation (“ Holdings ”), the guarantors listed in Part A of Schedule II to the Purchase Agreement (as defined below) (the “ Endurance Guarantors ”) and Goldman, Sachs & Co., Credit Suisse Securities (USA) LLC and Jefferies LLC, as the representatives (the “ Representatives ”) of the several initial purchasers (the “ Initial Purchasers ”) set forth in Schedule I to the Purchase Agreement (as defined below). Upon consummation of the merger of Constant Contact, Inc., a Delaware corporation (“ Constant Contact ”), with and into Paintbrush Acquisition Corporation, a wholly owned subsidiary of the Issuer (“ Merger Sub ”), with Constant Contact continuing as the surviving corporation (the “ Acquisition ”), the Issuer will cause each of the guarantors listed in Part B of Schedule II to the Purchase Agreement (the “ Constant Contact Guarantors ” and together with the Endurance Guarantors, the “ Guarantors ”) to execute and deliver a joinder agreement hereto substantially in the form attached as Annex A hereto (the “ Registration Rights Agreement Joinder ”) and to thereby join and become bound by the terms, conditions and other provisions of this Agreement.

This Agreement is made pursuant to the Purchase Agreement, dated February 8, 2016 (the “ Purchase Agreement ”), by and among the Issuer, the Endurance Guarantors and the Representatives, and, after giving effect to the Purchase Agreement Joinder referred to therein, the Constant Contact Guarantors, which provides for the sale by the Issuer to the Initial Purchasers of $350,000,000 aggregate principal amount of the Issuer’s 10.875% Senior Notes due 2024 (the “ Notes ”). Pursuant to the Purchase Agreement and the Indenture (as defined below), the Guarantors (as defined below) are required to guarantee (collectively, the “ Guarantees ,” and together with the Notes, the


Securities ”) on a senior unsecured basis the Issuer’s obligations under the Notes and the Indenture. As an inducement to the Initial Purchasers to enter into the Purchase Agreement, the Issuer has agreed to provide to the Initial Purchasers and their direct and indirect transferees the registration rights set forth in this Agreement. The execution and delivery of this Agreement is a condition to the closing under the Purchase Agreement.

In consideration of the foregoing, the parties hereto hereby agree as follows:

1. Definitions . As used in this Agreement, the following terms shall have the following meanings:

Additional Guarantor ” shall mean any domestic subsidiary of the Issuer, as acquired or organized after the Closing Date (as defined below), that is required to execute a supplemental indenture to the Indenture to provide a Guarantee, and its respective successors and assigns.

Blackout Period ” shall have the meaning set forth in Section 2(b) hereof.

Business Day ” shall mean any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed.

Closing Date ” shall have the meaning ascribed to it in the Purchase Agreement.

Constant Contact Guarantors ” shall have the meaning set forth in the preamble.

Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended from time to time.

Exchange Dates ” shall have the meaning set forth in Section 2(a)(ii) hereof.

Exchange Guarantees ” shall mean the guarantees on a senior unsecured basis of the Exchange Notes by the Guarantors.

Exchange Notes ” shall mean senior notes issued by the Issuer containing terms identical to the Notes (except that the Exchange Notes will not be subject to restrictions on transfer or to any increase in annual interest rate for failure to comply with this Agreement).

Exchange Offer ” shall mean the offer by the Issuer to exchange Exchange Securities for Registrable Securities pursuant to Section 2(a) hereof.

Exchange Offer Registration ” shall mean a registration under the Securities Act effected pursuant to Section 2(a) hereof.

Exchange Offer Registration Statement ” shall mean an exchange offer registration statement on Form S-4 (or, if applicable, on another appropriate form) and all amendments and supplements to such registration statement, in each case including the Prospectus contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.

 

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Exchange Securities ” shall mean the Exchange Notes together with the Exchange Guarantees.

FINRA ” shall mean the Financial Industry Regulatory Authority, Inc.

Free Writing Prospectus ” shall mean each free writing prospectus (as defined in Rule 405 under the Securities Act) prepared by or on behalf of the Issuer or used or referred to by the Issuer in connection with the sale of the Securities or the Exchange Securities.

Guarantees ” shall have the meaning set forth in the preamble.

Guarantors ” shall have the meaning set forth in the preamble and shall also include any Additional Guarantors.

Holders ” shall mean the Initial Purchasers, for so long as they own any Registrable Securities, and each of their successors, assigns and direct and indirect transferees who become owners of Registrable Securities under the Indenture; provided that, for purposes of Section 4 and Section 5 hereof, the term “Holders” shall include Participating Broker-Dealers.

Indemnified Person ” shall have the meaning set forth in Section 5(c) hereof.

Indemnifying Person ” shall have the meaning set forth in Section 5(c) hereof.

Indenture ” shall mean the Indenture relating to the Securities, dated as of February 9, 2016, between the Issuer, the Guarantors and Wilmington Trust, National Association, as trustee, and as the same may be amended from time to time in accordance with the terms thereof.

Initial Purchasers ” shall have the meaning set forth in the preamble.

Inspector ” shall have the meaning set forth in Section 3(a)(xiv) hereof.

Issuer ” shall have the meaning set forth in the preamble and shall also include the Issuer’s successors.

Issuer Information ” shall have the meaning set forth in Section 5(a) hereof.

Majority Holders ” shall mean the Holders of a majority of the aggregate principal amount of the outstanding Registrable Securities; provided that whenever the consent or approval of Holders of a specified percentage of Registrable Securities is required hereunder, any Registrable Securities owned directly or indirectly by the Issuer or any of its “affiliates” (within the meaning of Rule 405 under the Securities Act) shall not be counted in determining whether such consent or approval was given by the

 

3


Holders of such required percentage or amount; and provided , further , that if the Issuer shall issue any additional Securities under the Indenture prior to consummation of the Exchange Offer or, if applicable, the effectiveness of any Shelf Registration Statement, such additional Securities and the Registrable Securities to which this Agreement relates shall be treated together as one class for purposes of determining whether the consent or approval of Holders of a specified percentage of Registrable Securities has been obtained.

Market Maker ” shall mean Goldman, Sachs & Co. and its affiliates (as defined under the rules and regulations of the SEC).

Market-Making Conditions ” shall have the meaning set forth in Section 2(d).

Market-Making Registration ” shall have the meaning set forth in Section 2(d).

Market-Making Registration Statement ” shall mean a “shelf” registration statement of the Issuer and the Guarantors (which may be the Exchange Offer Registration Statement or the Shelf Registration Statement) that covers any of the Registrable Securities or the Exchange Securities pursuant to the provisions of this Agreement on an appropriate form under Rule 415 under the Securities Act, or any similar rule that may be adopted by the SEC, and all amendments and supplements to such registration statement including post-effective amendments in each case including the Prospectus contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.

Notes ” shall have the meaning set forth in the preamble.

Notice and Questionnaire ” shall mean a notice of registration statement and selling security holder questionnaire distributed to a Holder by the Issuer upon receipt of a Shelf Request from such Holder.

Participating Broker-Dealer ” shall have the meaning set forth in Section 4(a) hereof.

Participating Holder ” shall mean any Holder of Registrable Securities that has returned a completed and signed Notice and Questionnaire to the Issuer in accordance with Section 3(b) hereof.

Person ” shall mean an individual, partnership, limited liability company, corporation, trust or unincorporated organization, or a government or agency or political subdivision thereof.

Prospectus ” shall mean the prospectus included in, or, pursuant to the rules and regulations of the Securities Act, deemed a part of, a Registration Statement, including any preliminary prospectus, and any such prospectus as amended or supplemented by any prospectus supplement, including a prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities or Exchange Securities covered by a Registration Statement, and by all other amendments and supplements to such prospectus, and in each case including any document incorporated by reference therein.

 

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Purchase Agreement ” shall have the meaning set forth in the preamble.

Purchase Agreement Joinder ” shall have the meaning set forth in the preamble.

Registrable Securities ” shall mean the Securities; provided that the Securities shall cease to be Registrable Securities (i) when a Registration Statement with respect to such Securities has become effective under the Securities Act and such Securities have been exchanged or disposed of pursuant to such Registration Statement, (ii) when such Securities cease to be outstanding, (iii) except in the case of Securities that otherwise remain Registrable Securities, are held by an Initial Purchaser and are ineligible to be exchanged in the Exchange Offer, when the Exchange Offer is consummated or (iv) such Securities may be resold without restriction pursuant to Rule 144 (as amended or replaced) under the Securities Act.

Registration Default ” shall mean the occurrence of any of the following: (i) if required pursuant to Section 2(a) hereof, the Exchange Offer is not completed on or prior to the Target Registration Date, (ii) the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or Section 2(b)(ii) hereof, has not become effective on or prior to the Target Registration Date, (iii) if the Issuer receives a Shelf Request pursuant to Section 2(b)(iii), the Shelf Registration Statement required to be filed thereby has not become effective by the later of (a) the Target Registration Date and (b) 90 days after delivery of such Shelf Request or (iv) the Shelf Registration Statement, if required by this Agreement, has become effective and, subject to any Blackout Period, thereafter ceases to be effective, whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and, subject to any Blackout Period, such failure to remain effective exists for more than 30 days (whether or not consecutive) in any 12-month period.

Registration Expenses ” shall mean any and all expenses incident to performance of or compliance by the Issuer and the Guarantors with this Agreement, including without limitation: (i) all SEC, stock exchange or FINRA registration, listing and filing fees, (ii) all fees and expenses incurred in connection with compliance with state securities or blue sky laws (including reasonable fees and disbursements of counsel for any Underwriters, Holders or the Market Maker in connection with blue sky qualification of any Exchange Securities or Registrable Securities), (iii) all expenses of any Persons in preparing or assisting in preparing, word processing, printing and distributing any Registration Statement, any Prospectus, any Free Writing Prospectus and any amendments or supplements thereto, any underwriting agreements, securities sales agreements or other similar agreements and any other documents relating to the performance of and compliance with this Agreement, (iv) all rating agency fees, (v) all fees and disbursements relating to the qualification of the Indenture under applicable securities laws and the Trust Indenture Act, (vi) the reasonable fees and disbursements of the Trustee and its counsel, (vii) the fees and disbursements of counsel for the Issuer and the Guarantors and in the case of a Shelf Registration Statement, the reasonable fees and disbursements of one counsel for the Participating Holders (which counsel shall be selected by the Participating Holders holding a majority of the aggregate principal amount of Registrable Securities held by such Participating Holders and which counsel may also be counsel for the Initial Purchasers or the Market Maker) and (viii) the fees

 

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and disbursements of the independent registered public accountants of Holdings, including the expenses of any special audits or “comfort” letters required by or incident to the performance of and compliance with this Agreement, but excluding fees and expenses of counsel to the Underwriters (other than fees and expenses set forth in clause (ii) above) or the Holders and underwriting discounts and commissions, brokerage commissions and transfer taxes, if any, relating to the sale or disposition of Registrable Securities by a Holder.

Registration Rights Agreement Joinder ” shall have the meaning set forth in the preamble.

Registration Statement ” shall mean any registration statement of the Issuer and the Guarantors that covers any of the Exchange Securities or Registrable Securities pursuant to the provisions of this Agreement and all amendments and supplements to any such registration statement, including post-effective amendments, in each case including the Prospectus contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.

SEC ” shall mean the United States Securities and Exchange Commission.

Securities ” shall have the meaning set forth in the preamble.

Securities Act ” shall mean the Securities Act of 1933, as amended from time to time.

Shelf Effectiveness Period ” shall have the meaning set forth in Section 2(b) hereof.

Shelf Registration ” shall mean a registration effected pursuant to Section 2(b) hereof.

Shelf Registration Statement ” shall mean a “shelf” registration statement of the Issuer and the Guarantors that covers all or a portion of the Registrable Securities on an appropriate form under Rule 415 under the Securities Act, or any similar rule that may be adopted by the SEC, and all amendments and supplements to such registration statement, including post-effective amendments, in each case including the Prospectus contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.

Shelf Request ” shall have the meaning set forth in Section 2(b) hereof.

Staff ” shall mean the staff of the SEC.

Target Registration Date ” shall mean the 365th day after the Closing Date (or, if the 365th day is not a Business Day, the next succeeding Business Day).

Trust Indenture Act ” shall mean the Trust Indenture Act of 1939, as amended from time to time.

 

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Trustee ” shall mean the trustee with respect to the Securities under the Indenture.

Underwriter ” shall have the meaning set forth in Section 3(e) hereof.

Underwritten Offering ” shall mean an offering in which Registrable Securities are sold to an Underwriter for reoffering to the public.

2. Registration Under the Securities Act . (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, unless there are no Registrable Securities outstanding, the Issuer and the Guarantors shall use their commercially reasonable efforts to (1) file with the SEC an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (2) have such Registration Statement become effective for use by one or more Participating Broker-Dealers, (3) commence the Exchange Offer promptly after the Exchange Offer Registration Statement becomes effective and (4) issue Exchange Securities in exchange for all Registrable Securities tendered in the Exchange Offer on or prior to the Target Registration Date.

The Issuer shall commence the Exchange Offer by sending the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:

(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for exchange;

(ii) the dates of acceptance for exchange (which shall be a period of at least 20 Business Days from the date such notice is sent (or longer if required by applicable law)) (the “ Exchange Dates ”);

(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein;

(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and

(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) sending to the institution and at the address specified in the notice, a telegram, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities.

 

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As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Issuer and the Guarantors that (1) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (2) at the time of the commencement of the Exchange Offer, it is not engaged in, and does not intend to engage in, and it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Issuer or any Guarantor, (4) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities (other than Securities acquired directly from the Issuer or any of its affiliates), then such Holder will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) and (5) it is not acting on behalf of any person who could not truthfully and completely make the representations contained in the foregoing subclauses (1) through (4).

As soon as practicable after the last Exchange Date, the Issuer and the Guarantors shall:

 

(I) accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and

 

(II) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Securities tendered by such Holder; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement.

The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter.

Interest on each Exchange Security issued pursuant to the Exchange Offer will accrue from the last interest payment date on which interest was paid on the Securities surrendered in exchange therefor or, if no interest has been paid on the Securities, from the date of original issue of the Securities.

 

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The Issuer and the Guarantors shall use their commercially reasonable efforts to complete the Exchange Offer as provided above and shall comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall be conducted in accordance with the terms of this Agreement and shall not be subject to any conditions, except that the Issuer and the Guarantors shall not be required to conduct the Exchange Offer if (i) doing so would violate any applicable law or applicable interpretations of the Staff, (ii) any action or proceeding is instituted in or threatened in any court or by or before any governmental agency with respect to the Exchange Offer that, in the reasonable judgment of the Issuer and the Guarantors, might materially impair the ability of the Issuer and the Guarantors to proceed with the Exchange Offer or (iii) any government or regulatory approval to conduct the Exchange Offer has not been obtained that, in the reasonable judgment of the Issuer and the Guarantors, is necessary for the consummation of the Exchange Offer.

(b) In the event that (i) the Issuer and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) hereof is not available or the Exchange Offer may not be completed as soon as practicable after the last Exchange Date because it would violate an applicable law or applicable interpretations of the Staff, (ii) the Exchange Offer, for any other reason, is not completed by the Target Registration Date or (iii) upon receipt of a written request (a “ Shelf Request ”) within 30 days after the consummation of the Exchange Offer from any Initial Purchaser representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, or (iv) any Holder is not eligible to participate in the Exchange Offer pursuant to Section 2(a) or, in the case of a Holder who does participate in the Exchange Offer, does not receive freely tradeable Exchange Securities and so notifies the Issuer within 30 days after such Holder first becomes aware of such restrictions, the Issuer and the Guarantors shall use their commercially reasonable efforts to file with the SEC as soon as practicable after such determination, notification or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and use their commercially reasonable efforts to have such Shelf Registration Statement become effective; provided that no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Issuer as is contemplated by Section 3(b) hereof.

In the event that the Issuer and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding paragraph, the Issuer and the Guarantors shall use their commercially reasonable efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer.

 

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The Issuer and the Guarantors agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until the earlier of the (1) one-year anniversary of the effectiveness of the Shelf Registration Statement and (2) date when the Securities cease to be Registrable Securities (the “ Shelf Effectiveness Period ”); provided that the Issuer and the Guarantors may, for a period (a “ Blackout Period ”) of up to 60 days in any three-month period, not to exceed 90 days in any twelve-month period, suspend the use of the Prospectus contained in the Shelf Registration Statement if the Board of Directors of Holdings reasonably determines that the Shelf Registration Statement is not usable under circumstances relating to corporate developments, public filings with the SEC and similar events.

The Issuer and the Guarantors further agree to supplement or amend the Shelf Registration Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Issuer for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by the Holders of a majority in aggregate principal amount of the Registrable Securities with respect to information relating to one or more of such Holders, and to use their commercially reasonable efforts to cause any such amendment to become effective, if required. The Issuer and the Guarantors agree to furnish to the Participating Holders copies of any such supplement or amendment promptly after its being used or filed with the SEC.

(c) The Issuer and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. Each Holder shall pay all underwriting discounts and commissions, brokerage commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.

The Issuer and the Initial Purchasers agree that the Holders will suffer damages if the Issuer fails to fulfill its obligations under Section 2 or Section 3 hereof and that it would not be feasible to ascertain the extent of such damages with precision. Accordingly, the Issuer and the Guarantors agree to pay, jointly and severally, as liquidated damages and the sole remedy for monetary damages in connection with a Registration Default, additional interest on the outstanding Registrable Securities if a Registration Default occurs. The interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following such Registration Default and (ii) an additional 0.25% per annum with respect to the subsequent 90-day period, in each case to but excluding the date such Registration Default ends. A Registration Default ends when the Securities cease to be Registrable Securities or, if earlier, (1) in the case of a Registration Default under clause (i) of the definition thereof, when the Exchange Offer is completed, (2) in the case of a Registration Default under clause (ii) or clause (iii) of the definition thereof, when the Shelf Registration Statement becomes effective or (3) in the case of a Registration Default under clause (iv) of the definition thereof, subject to any Blackout Period, when the Shelf Registration Statement again becomes effective. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no Registration Default.

 

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(d) So long as (x) any of the Securities (whether Registrable Securities, Exchange Securities or otherwise) are outstanding, (y) the Market Maker proposes to make a market in the Registrable Securities or the Exchange Securities as part of its business in the ordinary course and (z) in the reasonable opinion of Goldman, Sachs & Co., it would be necessary under applicable laws, rules and regulations for the Market Maker to deliver a Prospectus in connection with market-making activities with respect to the Registrable Securities or the Exchange Securities (clauses (x) through (z) collectively, the “ Market-Making Conditions ”), the following provisions of this Section 2(d) shall apply for the sole benefit of the Market Maker (it being understood that only a person for whom the Market-Making Conditions apply at the applicable time shall be entitled to the use of the Market-Making Registration Statement and related provisions of this Agreement at any time). The Issuer and the Guarantors shall use their commercially reasonable efforts to file with the SEC, a Market-Making Registration Statement providing for the registration, and the sale on a continuous or delayed basis in secondary transactions by the Market Maker, of Registrable Securities or Exchange Securities (such filing, a “ Market-Making Registration ”. The Issuer and the Guarantors agree to use their commercially reasonable efforts (i) to have such Market-Making Registration Statement become effective on or prior to (x) the date the Exchange Offer is completed pursuant to Section 2(a) above or (y) the date the Shelf Registration becomes effective pursuant to Section 2(b) above, and (ii) to keep such Market-Making Registration Statement continuously effective for so long as the Market-Making Conditions continue to be satisfied; provided , that the Issuer and the Guarantors may suspend the use of the Prospectus contained in the Market-Making Registration Statement for one or more Blackout Periods if the Board of Directors of Holdings reasonably determines that the Market-Making Registration Statement is not usable under circumstances relating to corporate developments, public filings with the SEC and similar events; provided , that the Issuer and the Guarantors shall promptly notify the Market Maker when the Market-Making Registration Statement may once again be used; provided , further, that any such Blackout Periods shall not be limited in frequency or duration.

3. Registration Procedures . (a) In connection with their obligations pursuant to Sections 2(a), 2(b) and 2(d) hereof, the Issuer and the Guarantors shall, as soon as reasonably practicable:

(i) prepare and file with the SEC a Registration Statement on the appropriate form under the Securities Act, which form (A) shall be selected by the Issuer, (B) shall, in the case of a Shelf Registration, be available for the sale of the Registrable Securities by the Holders thereof, and in the case of a Market-Making Registration, be available for the sale of Registrable Securities or Exchange Securities, as the case may be, by the Market Maker, (C) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC to be filed therewith, and (D) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the

 

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statements therein, in the light of the circumstances under which they were made, not misleading; and use their commercially reasonable efforts to cause such Registration Statement to become effective, and, subject to any Blackout Period, remain effective for the applicable period in accordance with Section 2 hereof;

(ii) subject to any Blackout Period, prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement effective for the applicable period in accordance with Section 2 hereof and cause each Prospectus to be supplemented by any required prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424 under the Securities Act; and keep each Prospectus current during the period described in Section 4(a)(3) of, and Rule 174 under, the Securities Act that is applicable to transactions by brokers or dealers with respect to the Registrable Securities or Exchange Securities;

(iii) to the extent any Free Writing Prospectus is used, file with the SEC any Free Writing Prospectus that is required to be filed by the Issuer or the Guarantors with the SEC in accordance with the Securities Act and to retain any Free Writing Prospectus not required to be filed;

(iv) in the case of a Shelf Registration, furnish to each Participating Holder, to counsel for the Initial Purchasers, to counsel for such Participating Holders and to each Underwriter of an Underwritten Offering of Registrable Securities, if any, and in the case of a Market-Making Registration, furnish to the Market Maker and its counsel, without charge, an executed or conformed copy of the applicable Registration Statement and as many copies of each Prospectus, preliminary prospectus or Free Writing Prospectus, and any amendment or supplement thereto, as such Participating Holder, counsel, Underwriter or Market Maker may reasonably request in order to facilitate the sale or other disposition of the Registrable Securities or Exchange Securities, as the case may be, thereunder; and, subject to Section 3(c) hereof, the Issuer and the Guarantors consent to the use of such Prospectus, preliminary prospectus or such Free Writing Prospectus and any amendment or supplement thereto in accordance with applicable law by each of the Participating Holders, any such Underwriters and the Market Maker in connection with the offering and sale of the Registrable Securities or Exchange Securities, as the case may be, covered by and in the manner described in such Prospectus, preliminary prospectus or such Free Writing Prospectus or any amendment or supplement thereto in accordance with applicable law;

(v) use their commercially reasonable efforts to register or qualify the Registrable Securities or Exchange Securities, as the case may be, under all applicable state securities or blue sky laws of such jurisdictions as any Participating Holder or the Market Maker shall reasonably request in writing by the time the applicable Registration Statement becomes effective; reasonably cooperate with such Participating Holders and the Market Maker in connection with any filings required to be made with FINRA; and do any and all other acts and things (including by way of obtaining any necessary governmental consents or approvals, if any) that may be reasonably necessary or advisable to enable each Participating Holder and the Market Maker to complete the

 

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disposition in each such jurisdiction of the Registrable Securities owned by such Participating Holder and the transactions in the Registrable Securities and Exchange Securities by the Market Maker; provided that neither the Issuer nor any Guarantor shall be required to (1) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (2) file any general consent to service of process in any such jurisdiction or (3) subject itself to taxation in any such jurisdiction if it is not so subject;

(vi) notify counsel for the Initial Purchasers and, in the case of a Shelf Registration, notify each Participating Holder and counsel for such Participating Holders and, in the case of a Market-Making Registration, notify the Market Maker and counsel for the Market Maker promptly and, if requested by any such Participating Holder, Market Maker or counsel, as the case may be, confirm such advice in writing (1) when a Registration Statement has been filed and become effective, when any post-effective amendment thereto has been filed and becomes effective, when any Free Writing Prospectus has been filed or any amendment or supplement to the Prospectus or any Free Writing Prospectus has been filed, (2) of any comments or request by the SEC or any state securities authority for amendments and supplements to a Registration Statement, Prospectus or any Free Writing Prospectus or for additional information after the Registration Statement has become effective, (3) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, including the receipt by the Issuer of any notice of objection of the SEC to the use of a Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act, or the happening of any event that causes the Issuer to become an “ineligible issuer” as defined in Rule 405 under the Securities Act, (4) if, between the applicable effective date of a Shelf Registration Statement and the closing of any sale of Registrable Securities covered thereby, the representations and warranties of the Issuer or any Guarantor contained in any underwriting agreement, securities sales agreement or other similar agreement, if any, relating to an offering of such Registrable Securities cease to be true and correct in all material respects, (5) if, between the applicable effective date of a Shelf Registration Statement and the closing of any sale of Registrable Securities covered thereby or during the effectiveness of a Market-Making Registration Statement pursuant to Section 2(d) hereof, the Issuer or any Guarantor receives any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose, (6) of the happening of any event during the period a Registration Statement is effective that makes any statement made in such Registration Statement or the related Prospectus or any Free Writing Prospectus untrue in any material respect or that requires the making of any changes in such Registration Statement or Prospectus or any Free Writing Prospectus in order to make the statements therein not misleading and (7) of any determination by the Issuer or any Guarantor that a post-effective amendment to a Registration Statement or any amendment or supplement to the Prospectus or any Free Writing Prospectus would be appropriate;

 

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(vii) use their commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement or, in the case of a Shelf Registration or Market-Making Registration, the resolution of any objection of the SEC pursuant to Rule 401(g)(2) under the Securities Act, including by filing an amendment to such Registration Statement on the proper form, as soon as practicable and provide immediate notice to each Holder, Participating Holder or Market Maker, as the case may be, of the withdrawal of any such order or such resolution;

(viii) in the case of a Shelf Registration or a Market-Making Registration, to the extent the Registrable Securities or Exchange Securities are certificated, reasonably cooperate with the Participating Holders or the Market Maker, as the case may be, to facilitate the timely preparation and delivery of certificates representing Registrable Securities or Exchange Securities to be sold and not bearing any restrictive legends and enable such Registrable Securities or Exchange Securities to be issued in such denominations and registered in such names (consistent with the provisions of the Indenture) as such Participating Holders or the Market Maker may reasonably request at least one Business Day prior to the closing of any sale of Registrable Securities or Exchange Securities;

(ix) subject to any Blackout Period, upon the occurrence of any event contemplated by Section 3(a)(vi)(5) hereof, use their commercially reasonable efforts to prepare and file with the SEC a supplement or post-effective amendment to the applicable Registration Statement or the related Prospectus or any Free Writing Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered (or, to the extent permitted by law, made available) to purchasers of the Registrable Securities or Exchange Securities, as the case may be, such Prospectus or Free Writing Prospectus, as the case may be, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and the Issuer shall notify the Participating Holders (in the case of a Shelf Registration Statement), the Initial Purchasers and any Participating Broker-Dealers known to the Issuer (in the case of an Exchange Offer Registration Statement) and the Market Maker (in the case of a Market-Making Registration Statement) to suspend use of the Prospectus or any Free Writing Prospectus as promptly as practicable after the occurrence of such an event, and such Participating Holders, such Participating Broker-Dealers, the Initial Purchasers and the Market Maker, as applicable, hereby agree to suspend use of the Prospectus or any Free Writing Prospectus, as the case may be, until the Issuer and the Guarantors have amended or supplemented the Prospectus or the Free Writing Prospectus, as the case may be, to correct such misstatement or omission;

(x) a reasonable time prior to the filing of any Registration Statement, any Prospectus, Free Writing Prospectus or amendment of or supplement to a Registration Statement or a Prospectus or Free Writing Prospectus (excluding any document that is to be incorporated by reference into a Registration Statement, Prospectus or Free Writing Prospectus), provide copies of such document to the Initial Purchasers and their counsel (and, in the case of a Shelf Registration Statement, to the Participating Holders and their counsel) or in the case of a Market-Making Registration Statement, to the Market Maker and its counsel, and make such of the representatives of the Issuer and Holdings as shall be reasonably requested by the Initial Purchasers or their counsel (and, in the case of a

 

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Shelf Registration Statement, the Participating Holders or their counsel) or in the case of a Market-Making Registration Statement, the Market Maker or its counsel, available for discussion of such document; and the Issuer and the Guarantors shall not, at any time after initial filing of a Registration Statement, use or file any Prospectus, Free Writing Prospectus or amendment of or supplement to a Registration Statement or a Prospectus or Free Writing Prospectus (excluding any document that is to be incorporated by reference into a Registration Statement, Prospectus or Free Writing Prospectus) of which the Initial Purchasers and their counsel (and, in the case of a Shelf Registration Statement, the Participating Holders and their counsel) or in the case of a Market-Making Registration Statement, the Market Maker and its counsel, shall not have previously been advised and furnished a copy or to which the Initial Purchasers or their counsel (and, in the case of a Shelf Registration Statement, the Participating Holders or their counsel) or in the case of a Market-Making Registration Statement, the Market Maker and its counsel, shall reasonably object;

(xi) use their commercially reasonable efforts to obtain a CUSIP number for all Exchange Securities or Registrable Securities, as the case may be, not later than the initial effective date of a Registration Statement;

(xii) use their commercially reasonable efforts to cause the Indenture to be qualified under the Trust Indenture Act in connection with the registration of the Exchange Securities or Registrable Securities, as the case may be; reasonably cooperate with the Trustee and the Holders to effect such changes to the Indenture as may be required for the Indenture to be so qualified in accordance with the terms of the Trust Indenture Act; and execute, and use their commercially reasonable efforts to cause the Trustee to execute, all documents as may be required to effect such changes and all other forms and documents required to be filed with the SEC to enable the Indenture to be so qualified in a timely manner;

(xiii) in the event that the filing of a Registration Statement requires the appointment of a new trustee under the Indenture, appoint a new trustee thereunder pursuant to the applicable provisions of the Indenture;

(xiv) in the case of a Shelf Registration or a Market-Making Registration, make available for inspection by a representative of the Participating Holders (an “ Inspector ”), any Underwriter participating in any disposition pursuant to such Shelf Registration Statement, the Market Maker (in the case of a Market-Making Registration), any attorneys and accountants designated by a majority in aggregate principal amount of the Notes held by the Participating Holders, any attorneys and accountants designated by such Underwriter, and any attorneys and accountants designated by the Market Maker, as the case may be, at reasonable times and in a reasonable manner, all pertinent financial and other records, documents and properties of Holdings and the Guarantors, and cause the respective officers, directors and employees of Holdings and the Guarantors to supply all information reasonably requested by any such Inspector, Underwriter, Market Maker, attorney or accountant, as the case may be, in connection with such Shelf Registration Statement or Market-Making Registration Statement; provided that if any such information is identified by Holdings or any Guarantor as being confidential or

 

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proprietary, each Person receiving such information shall take such actions as are reasonably necessary to protect the confidentiality of such information to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of any such Inspector, Holder, Underwriter or Market Maker;

(xv) in the case of a Shelf Registration, use their commercially reasonable efforts to cause all Registrable Securities to be listed on any securities exchange or any automated quotation system on which similar securities issued or guaranteed by the Issuer or any Guarantor are then listed if requested by the Majority Holders, to the extent such Registrable Securities satisfy applicable listing requirements;

(xvi) if reasonably requested by any Participating Holder or the Market Maker, promptly include in a Prospectus supplement or post-effective amendment such information with respect to such Participating Holder or Market Maker, as such Participating Holder or Market Maker, as the case may be, reasonably requests to be included therein and make all required filings of such Prospectus supplement or such post-effective amendment as soon as the Issuer has received notification of the matters to be so included in such filing;

(xvii) in the case of a Shelf Registration or Market-Making Registration, enter into such customary agreements and take all such other actions in connection therewith (including those requested by the Holders of a majority in principal amount of the Registrable Securities covered by the Shelf Registration Statement) in order to expedite or facilitate the disposition of such Registrable Securities or Exchange Securities, as the case may be, including (in the case of a Shelf Registration), but not limited to, an Underwritten Offering and in connection therewith, (1) to the extent possible, agree to customary indemnity and contribution provisions and make such representations and warranties to the Participating Holders and any Underwriters of such Registrable Securities with respect to the business of the Issuer, Holdings and the Issuer’s subsidiaries and the Registration Statement, Prospectus, any Free Writing Prospectus and documents incorporated by reference or deemed incorporated by reference therein, if any, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings and confirm the same if and when requested, (2) solely with respect to an Underwritten Offering, obtain opinions of counsel to the Issuer and the Guarantors (which counsel and opinions, in form, scope and substance, shall be reasonably satisfactory to the Participating Holders, such Underwriters and their respective counsel) addressed to each Participating Holder and Underwriter of Registrable Securities, covering the matters customarily covered in opinions requested in underwritten offerings, (3) solely with respect to an Underwritten Offering, obtain “comfort” letters from the independent registered public accountants of Holdings (and, if necessary, any other registered public accountant of any subsidiary of the Issuer, including Constant Contact, or of any other business acquired by the Issuer for which financial statements and financial data are or are required to be included in the Registration Statement) addressed to each Participating Holder (to the extent permitted by applicable professional standards) and Underwriter of Registrable Securities, such letters to be in customary form and covering matters of the type customarily covered in “comfort” letters in connection with underwritten offerings, including but not limited to

 

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financial information contained in any preliminary prospectus, Prospectus or Free Writing Prospectus and (4) deliver such documents and certificates as may be reasonably requested by the Holders of a majority in principal amount of the Registrable Securities being sold or the Underwriters, and which are customarily delivered in underwritten offerings, to evidence the continued validity of the representations and warranties of the Issuer and the Guarantors made pursuant to clause (1) above and to evidence compliance with any customary conditions contained in an underwriting agreement;

(xviii) make generally available to each Participating Holder no later than eighteen months after the effective date of a Registration Statement, an “earning statement” of Holdings complying with Section 11(a) of the Securities Act (including, at the option of the Issuer, Rule 158 thereunder); and

(xix) so long as any Registrable Securities remain outstanding, cause each Additional Guarantor upon the creation or acquisition by the Issuer of such Additional Guarantor, to execute a counterpart to this Agreement in the form attached hereto as Annex B and to deliver such counterpart, together with an opinion of counsel as to the enforceability thereof against such entity, to the Initial Purchasers no later than five Business Days following the execution thereof.

(b) In the case of a Shelf Registration Statement, the Issuer may require each Holder of Registrable Securities to furnish to the Issuer a Notice and Questionnaire and such other information regarding such Holder and the proposed disposition by such Holder of such Registrable Securities as the Issuer may from time to time reasonably request in writing.

(c) Each Participating Holder and the Market Maker agree that, upon receipt of any notice from the Issuer of the occurrence of any event of the kind described in Section 3(a)(vi)(3) or Section 3(a)(vi)(5) hereof or of a Blackout Period, such Participating Holder or the Market Maker, as the case may be, will forthwith discontinue disposition of Registrable Securities or Exchange Securities, as the case may be, pursuant to the applicable Registration Statement until such Participating Holder’s or the Market Maker’s receipt of the copies of the supplemented or amended Prospectus and any related Free Writing Prospectus or notice that the Blackout Period has terminated and, if so directed by the Issuer, such Participating Holder or Market Maker, as the case may be, will deliver to the Issuer all copies in its possession, other than permanent file copies then in such Participating Holder’s or the Market Maker’s possession, of the Prospectus and any Free Writing Prospectus covering such Registrable Securities or Exchange Securities that is current at the time of receipt of such notice.

(d) If the Issuer shall give any notice to suspend the disposition of Registrable Securities pursuant to an Exchange Offer Registration Statement or a Shelf Registration Statement or of any Blackout Period with respect thereto, the Issuer and the Guarantors shall extend the period during which such Registration Statement shall be maintained effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such notice to and including the date when the Holders of such Registrable Securities shall have received copies of the supplemented or amended Prospectus or any Free Writing Prospectus or any other notice necessary to resume such dispositions.

 

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(e) The Participating Holders who desire to do so may sell Registrable Securities in an Underwritten Offering. In any such Underwritten Offering, the investment bank or investment banks and manager or managers (each an “ Underwriter ”) that will administer the offering will be selected by the Holders of a majority in principal amount of the Registrable Securities included in such offering.

(f) Each Participating Holder and the Market Maker will furnish to the Issuer and the Guarantors such information regarding such Participating Holder or the Market Maker, as the case may be, and the distribution of such Registrable Securities or Exchange Securities as the Issuer may from time to time reasonably request in writing. Each Participating Holder and the Market Maker agree to notify the Issuer and the Guarantors as promptly as practicable of any inaccuracy or change in information previously furnished by such Participating Holder or the Market Maker, as the case may be, to the Issuer and the Guarantors or of the happening of any event, in either case as a result of which any Prospectus relating to such registration contains an untrue statement of a material fact regarding such Participating Holder or the Market Maker or the distribution of such Registrable Securities or Exchange Securities or omits to state any material fact regarding such Participating Holder or the Market Maker or the distribution of such Registrable Securities or Exchange Securities required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and to furnish to the Issuer and the Guarantors promptly any additional information required to correct and update any previously furnished information or required such that such Prospectus shall not contain, with respect to such Participating Holder or the Market Maker or the distribution of such Registrable Securities or Exchange Securities, an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.

4. Participation of Broker-Dealers in Exchange Offer . (a) The Staff has taken the position that any broker-dealer that receives Exchange Securities for its own account in the Exchange Offer in exchange for Securities that were acquired by such broker-dealer as a result of market-making or other trading activities (a “ Participating Broker-Dealer ”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Securities.

The Issuer and the Guarantors understand that it is the Staff’s position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Securities, without naming the Participating Broker-Dealers or specifying the amount of Exchange Securities owned by them, such Prospectus may be delivered by Participating Broker-Dealers (or, to the extent permitted by law, made available to purchasers) to satisfy their prospectus delivery obligation under the Securities Act in connection with resales of Exchange Securities for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act.

 

18


(b) In light of the above, and notwithstanding the other provisions of this Agreement, the Issuer and the Guarantors agree to amend or supplement the Prospectus contained in the Exchange Offer Registration Statement for a period of up to 180 days after the Exchange Offer Registration Statement becomes effective (as such period may be extended pursuant to Section 3(c) hereof), in order to expedite or facilitate the disposition of any Exchange Securities by Participating Broker-Dealers consistent with the positions of the Staff recited in Section 4(a) above. The Issuer and the Guarantors further agree that Participating Broker-Dealers shall be authorized to deliver such Prospectus (or, to the extent permitted by law, make available) during such period in connection with the resales contemplated by this Section 4.

(c) The Initial Purchasers shall have no liability to the Issuer, any Guarantor or any Holder with respect to any request that they may make pursuant to Section 4(b) hereof.

5. Indemnification and Contribution . (a) Each of the Issuer, the Endurance Guarantors, and upon execution and delivery of the Registration Rights Agreement Joinder, each of the Constant Contact Guarantors, jointly and severally with the Issuer and each of the Endurance Guarantors, hereby agrees to indemnify and hold harmless each of the Participating Holders as holders of Registrable Securities included in an Exchange Offer Registration Statement and, each of the Participating Holders as holders of Registrable Securities included in a Shelf Registration Statement and the Market Maker as a holder of Registrable Securities or Exchange Securities included in a Market-Making Registration Statement from and against any loss, claim, damage or liability, joint or several, to which such Participating Holder or the Market Maker may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) an untrue statement or alleged untrue statement of a material fact contained in any Registration Statement under which such Registrable Securities or Exchange Securities were registered under the Securities Act, or any Prospectus or Free Writing Prospectus contained therein or furnished by the Issuer to any such Participating Holder or the Market Maker, or (ii) the omission or alleged omission to state therein any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and shall reimburse each such Participating Holder and the Market Maker promptly upon demand, for any legal or other expenses reasonably incurred by them in connection with investigating or defending or preparing to defend against any such loss, claim damage, liability or action as such expenses are incurred; provided, however , that the Issuer and the Guarantors shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, Prospectus or Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Issuer by such person specifically for inclusion therein. The foregoing indemnity agreement is in addition to any liability that the Issuer or the Guarantors may otherwise have to each such Participating Holder and the Market Maker.

 

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(b) Each Holder, severally and not jointly, hereby agrees to indemnify and hold harmless, the Issuer, the Initial Purchasers, the Market Maker and the other selling Holders, the Endurance Guarantors, and upon execution and delivery of the Registration Rights Agreement Joinder, each of the Constant Contact Guarantors and their respective officers, each of their respective directors, each of their respective officers who signed the Registration Statement and each Person, if any, who controls, as of the date hereof, the Issuer and each Guarantor, any Initial Purchaser, the Market Maker and any other selling Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information concerning such Holder furnished to the Issuer and the Guarantors by or behalf of that Holder specifically for inclusion in any Registration Statement, any Prospectus and any Free Writing Prospectus. The foregoing indemnity agreement is in addition to any liability that any Holder may otherwise have to the Issuer, any Guarantor or any such director, officer or controlling person.

(c) Promptly after receipt by an indemnified party under either paragraph (a) or (b) above (such party, an “ Indemnified Person ”) of notice of claim or commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against the indemnifying party under either paragraph (a) or (b) above, notify the Person against whom such indemnification may be sought (the “ Indemnifying Person ”) in writing of the claim or the commencement of that action; provided, however , that the failure to so notify the Indemnifying Person shall not relieve it from any liability that it may have under paragraph (a) or (b) above except to the extent it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure and; provided, further , that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b) above. If any such claim or action shall be brought against an Indemnified Person, and it shall notify the Indemnifying Person thereof, the Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified Indemnifying Person, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from the Indemnifying Person to the Indemnified Person of its election to assume the defense of such claim or action, the Indemnifying Person shall not be liable to the Indemnified Person under this Section 5 for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof other than reasonable costs of investigation; provided, however , that the Indemnified Person shall have the right to employ counsel to represent the Indemnified Person and such Indemnified Person’s respective directors, officers and controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Indemnified Person against the Indemnifying Person under this Section 5, if (i) the Indemnifying Person and the Indemnified Person shall have so mutually agreed; (ii) the Indemnifying Person fails within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person and its respective directors, officers and controlling persons shall have reasonably concluded, based on the

 

20


advice of counsel, that there may be legal defenses available to them that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person, on the one hand, and the Indemnified Person, on the other hand, and representation of both sets of parties by the same counsel would present a conflict due to actual or potential differing interests between them, and in any such event the fees and expenses of such separate counsel shall be paid by the Indemnifying Person. No Indemnifying Person shall (x) without the prior written consent of the Indemnified Persons (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the Indemnified Persons are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each Indemnified Person from all liability arising out of such claim, action, suit or proceeding and does not include a statement as to, or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person, or (y) be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with the consent of the Indemnifying Person or if there be a final judgment of the plaintiff in any such action, the Indemnifying Person agrees to indemnify and hold harmless any Indemnified Person from and against any loss or liability by reason of such settlement or judgment.

(d) If the indemnification provided for in this Section 5 shall for any reason be unavailable to or insufficient to hold harmless an Indemnified Person under paragraph (a) or (b) above in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein (other than by virtue of the failure of an Indemnified Person to notify the Indemnifying Person of its right to indemnification pursuant to paragraph (a) or (b) above, where such failure materially prejudices the Indemnifying Person (through the forfeiture of substantive rights or defenses)), then each Indemnifying Person shall, in lieu of indemnifying such Indemnified Person, contribute to the amount paid or payable by such Indemnified Person as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received by the Indemnifying Person, on the one hand, and the Indemnified Person, on the other, from the offering of the Securities or the Exchange Securities, or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Indemnifying Person, on the one hand, and the Indemnified Person, on the other, with respect to the statements or omissions that resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by the Issuer and the Guarantors, on the one hand, and the Holders on the other, with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Securities (before deducting expenses) received by the Issuer and the Guarantors, on the one hand, and the total discounts and commissions received by the Holders with respect to the Securities, on the other hand, bear to the total gross proceeds from the offering of the Securities. The relative fault shall be determined by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission

 

21


to state a material fact relates to information supplied by the Issuer and the Guarantors, on the one hand, or the Holders on the other hand, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission and any other equitable considerations appropriate in the circumstances. The Issuer, each Guarantor and the Holders agree that it would not be just and equitable if contributions pursuant to this Section 5(d) were to be determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation that does not take into account the equitable considerations referred to herein. The amount paid or payable by an Indemnified Person as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Section 5(d) shall be deemed to include, for purposes of this Section 5(d), any legal or other expenses reasonably incurred by such Indemnified Person in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5(d), no Holder shall be required to contribute any amount in excess of the amount of discounts and commissions received by such Holder with respect to the Securities. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ obligations to contribute as provided in this Section 5(d) are several in proportion to their respective purchase obligations and not joint. Notwithstanding the foregoing, none of the Constant Contact Guarantors shall have any rights or obligations pursuant to this Section 5(d) until such time as each of the Constant Contact Guarantors shall have executed and delivered the Registration Rights Agreement Joinder.

(e) The remedies provided for in this Section 5 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.

(f) The indemnity and contribution provisions contained in this Section 5 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the Initial Purchasers or the Market Maker or any Holder or any Person controlling any Initial Purchaser, the Market Maker or any Holder, or by or on behalf of the Issuer or the Guarantors or the officers or directors of or any Person controlling the Issuer or the Guarantors, (iii) acceptance of any of the Exchange Securities and (iv) any sale of Registrable Securities pursuant to a Shelf Registration Statement.

6. General .

(a) No Inconsistent Agreements . The Issuer and the Guarantors represent, warrant and agree that (i) the rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted to the holders of any other outstanding securities issued or guaranteed by the Issuer or any Guarantor, as applicable, under any other agreement and (ii) neither the Issuer nor any Guarantor has entered into, or on or after the date of this Agreement will enter into, any agreement that is inconsistent with the rights granted to the Holders of Registrable Securities in this Agreement or otherwise conflicts with the provisions hereof.

 

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(b) Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given unless the Issuer and the Guarantors have obtained the written consent of Holders of at least a majority in aggregate principal amount of the outstanding Registrable Securities affected by such amendment, modification, supplement, waiver or consent; provided that no amendment, modification, supplement, waiver or consent to any departure from the provisions of Section 6 hereof shall be effective as against any Holder of Registrable Securities unless consented to in writing by such Holder. Any amendments, modifications, supplements, waivers or consents pursuant to this Section 6(b) shall be in writing and executed by each of the parties hereto.

(c) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, registered first-class mail, facsimile, or any courier guaranteeing overnight delivery (i) if to a Holder, at the most current address given by such Holder to the Issuer by means of a notice given in accordance with the provisions of this Section 6(c), which address initially is, with respect to each Initial Purchaser, its address set forth in the Purchase Agreement; (ii) if to the Issuer and the Guarantors, initially at the Issuer’s address set forth in the Purchase Agreement and thereafter at such other address, notice of which is given in accordance with the provisions of this Section 6(c); and (iii) to such other persons at their respective addresses as provided in the Purchase Agreement and thereafter at such other address, notice of which is given in accordance with the provisions of this Section 6(c). All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged, if sent by facsimile; and on the next Business Day if timely delivered to an air courier guaranteeing overnight delivery. Copies of all such notices, demands or other communications shall be concurrently delivered by the Person giving the same to the Trustee, at the address specified in the Indenture.

(d) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors, assigns and transferees of each of the parties, including, without limitation and without the need for an express assignment, subsequent Holders; provided that nothing herein shall be deemed to permit any assignment, transfer or other disposition of Registrable Securities in violation of the terms of the Purchase Agreement or the Indenture. If any transferee of any Holder shall acquire Registrable Securities in any manner, whether by operation of law or otherwise, such Registrable Securities shall be held subject to all the terms of this Agreement, and by taking and holding such Registrable Securities such Person shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement and such Person shall be entitled to receive the benefits hereof. The Initial Purchasers (in their capacity as Initial Purchasers) shall have no liability or obligation to the Issuer or the Guarantors with respect to any failure by a Holder to comply with, or any breach by any Holder of, any of the obligations of such Holder under this Agreement.

 

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(e) Third Party Beneficiaries. Each Holder shall be a third party beneficiary to the agreements made hereunder between the Issuer and the Guarantors, on the one hand, and the Initial Purchasers, on the other hand, and shall have the right to enforce such agreements directly to the extent it deems such enforcement necessary or advisable to protect its rights or the rights of other Holders hereunder.

(f) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

(g) Headings. The headings in this Agreement are for convenience of reference only, are not a part of this Agreement and shall not limit or otherwise affect the meaning hereof.

(h) Governing Law. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT GIVING EFFECT TO ANY PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW.

(i) Entire Agreement; Severability. This Agreement contains the entire agreement between the parties relating to the subject matter hereof and supersedes all oral statements and prior writings with respect thereto. If any term, provision, covenant or restriction contained in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable or against public policy, the remainder of the terms, provisions, covenants and restrictions contained herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated. The Issuer, the Guarantors and the Initial Purchasers shall endeavor in good faith negotiations to replace the invalid, void or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, void or unenforceable provisions.

[Remainder of page intentionally left blank ]

 

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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

 

EIG INVESTORS CORP.
  By:   /s/ Hari Ravichandran
  Name: Hari Ravichandran
  Title: Chief Executive Officer and President

 

ENDURANCE INTERNATIONAL GROUP

HOLDINGS, INC.

THE ENDURANCE INTERNATIONAL

GROUP, INC.

ENDURANCE INTERNATIONAL GROUP –

WEST, INC.

DOMAIN NAME HOLDING COMPANY, INC.

HOSTGATOR.COM LLC

A SMALL ORANGE, LLC

BLUEHOST INC.

FASTDOMAIN INC

  By:   /s/ Hari Ravichandran
 

Name: Hari Ravichandran

Title: Chief Executive Officer and President

[ Signature Page to Registration Rights Agreement ]


Confirmed and accepted as of the date first above written:

 

For themselves and on behalf of the

several Initial Purchasers

 

GOLDMAN, SACHS & CO.

By   /s/ Michael Hickey
Name: Michael Hickey
Title: Managing Director

 

CREDIT SUISSE SECURITIES (USA) LLC
By   /s/ Hayes Smith
Name: Hayes Smith
Title: Managing Director

 

JEFFERIES LLC
By   /s/ John C. Duggan
Name: John C. Duggan
Title: Managing Director

[ Signature Page to Registration Rights Agreement ]


Annex A

JOINDER AGREEMENT TO EXCHANGE AND REGISTRATION RIGHTS AGREEMENT [            ], 2016

Reference is hereby made to the Exchange and Registration Rights Agreement, dated as of February 9, 2016 (the “ Registration Rights Agreement ”), by and among EIG INVESTORS CORP. (the “ Issuer ”), the guarantors listed in Part A of Schedule II to the Purchase Agreement (as defined in the Registration Rights Agreement) and GOLDMAN, SACHS & CO., CREDIT SUISSE SECURITIES (USA) LLC and JEFFERIES LLC, as the representatives of the several Initial Purchasers. Unless otherwise defined herein, terms defined in the Registration Rights Agreement and used herein shall have the meanings given to them in the Registration Rights Agreement.

1. Joinder of the Guarantor . Each other signatory hereto (each, a “ Guarantor ”), hereby agrees to become bound by the terms, conditions and other provisions of the Registration Rights Agreement with all attendant rights, duties and obligations stated therein, with the same force and effect as if originally named as “Guarantor” therein and as if such Guarantor executed the Registration Rights Agreement on the date thereof.

2. Governing Law . This Registration Rights Agreement Joinder, and any claim, controversy or dispute arising under or related to this Registration Rights Agreement Joinder, shall be governed by and construed in accordance with the laws of the State of New York.

3. Counterparts . This agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.

4. Amendments . No amendment or waiver of any provision of this Registration Rights Agreement Joinder, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.

5. Headings . The headings in this Registration Rights Agreement Joinder are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.

[Signature Page Follows]


IN WITNESS WHEREOF, the undersigned have executed this Registration Rights Agreement Joinder as of the date first written above.

 

CONSTANT CONTACT, INC.
By:    
Name:
Title:

 

CARDSTAR, INC.
By:    
Name:
Title:

 

SINGLEPLATFORM, LLC
By:    
Name:
Title:

 

CARDSTAR PUBLISHING, LLC
By:    
Name:
Title:


Annex B

Counterpart to Exchange and Registration Rights Agreement

The undersigned hereby absolutely, unconditionally and irrevocably agrees as a Guarantor (as defined in the Exchange and Registration Rights Agreement, dated as of February 9, 2016, by and between EIG Investors Corp., a Delaware corporation, the guarantors listed in Part A of Schedule II to the Purchase Agreement (as defined in the Registration Rights Agreement) and Goldman, Sachs & Co., Credit Suisse Securities (USA) LLC and Jefferies LLC, as the representatives of the several Initial Purchasers) to be bound by the terms and provisions of such Registration Rights Agreement.

IN WITNESS WHEREOF, the undersigned has executed this counterpart as of                          .

 

[NAME]
By:    
  Name:
  Title:

 

Annex B-1

Exhibit 10.4

ENDURANCE INTERNATIONAL GROUP HOLDINGS, INC.

Form of Incentive Stock Option Agreement

Constant Contact, Inc. Second Amended and Restated 2011 Stock Incentive Plan

 

1. Grant of Option .

This agreement (the “Agreement”) evidences the grant by Endurance International Group Holdings, Inc., a Delaware corporation (the “Company”), on [            ], 20[    ] (the “Grant Date”) to [                        ] (the “Participant”) of an option to purchase, in whole or in part, on the terms provided herein and in the Constant Contact, Inc. Second Amended and Restated 2011 Stock Incentive Plan (the “Plan”), a total of [            ] shares (the “Shares”) of common stock, $0.0001 par value per share, of the Company (“Common Stock”) at $[            ] per Share. Unless earlier terminated, this option shall expire at 5:00 p.m., Eastern time, on [            ] (the “Final Exercise Date”).

It is intended that the option evidenced by this Agreement shall be an incentive stock option as defined in Section 422 of the Internal Revenue Code of 1986, as amended, and any regulations promulgated thereunder (the “Code”), to the fullest extent permitted thereby. In the event any or all of this option shall not qualify as an incentive stock option, the portion that is not so qualified shall be deemed a non-incentive stock option. Except as otherwise indicated by the context, the term “Participant”, as used in this option, shall be deemed to include any person who acquires the right to exercise this option validly under its terms.

 

2. Vesting Schedule .

This option will become exercisable (“vest”) as to 25% of the original number of Shares on [            ] (the “Vesting Commencement Date”) and as to an additional 2.0833% of the original number of Shares at the end of each successive one-month period following the Vesting Commencement Date until [            ].

The right of exercise shall be cumulative so that to the extent the option is not exercised in any period to the maximum extent permissible it shall continue to be exercisable, in whole or in part, with respect to all Shares for which it is vested until the earlier of the Final Exercise Date or the termination of this option under Section 3 hereof or the Plan.

 

3. Exercise of Option .

(a) Form of Exercise . Each election to exercise this option shall be in a form (which may be electronic) approved by the Company, and received by the Company or its designated third-party administrator, accompanied by this Agreement and payment in full in the manner provided in the Plan or transmitted or signified in such other manner as provided at the time of exercise by the Company or such administrator. For purposes hereof, “third-party administrator” means E*Trade Corporate Financial Services, Inc. or any successor third-party stock option administrator designated by the Company from time to time. The Participant may purchase less than the number of shares covered hereby, provided that no partial exercise of this option may be for any fractional share.


(b) Continuous Relationship with the Company Required . Except as otherwise provided in this Section 3, this option may not be exercised unless the Participant, at the time he or she exercises this option, is, and has been at all times since the Grant Date, an employee or officer of, or consultant or advisor to, the Company or any parent or subsidiary of the Company as defined in Section 424(e) or (f) of the Code (an “Eligible Participant”).

(c) Termination of Relationship with the Company . If the Participant ceases to be an Eligible Participant for any reason, then, except as provided in paragraphs (d) and (e) below, the right to exercise this option shall terminate three months after such cessation (but in no event after the Final Exercise Date), provided that this option shall be exercisable only to the extent that the Participant was entitled to exercise this option on the date of such cessation. Notwithstanding the foregoing, if the Participant, prior to the Final Exercise Date, violates the non-competition or confidentiality provisions of any employment contract, confidentiality and nondisclosure agreement or other agreement between the Participant and the Company, the right to exercise this option shall terminate immediately upon written notice to the Participant from the Company describing such violation.

(d) Exercise Period Upon Death or Disability . If the Participant dies or becomes disabled (within the meaning of Section 22(e)(3) of the Code) prior to the Final Exercise Date while he or she is an Eligible Participant and the Company has not terminated such relationship for “cause” as specified in paragraph (e) below, this option shall be exercisable, within the period of six months following the date of death or disability of the Participant, by the Participant (or in the case of death by an authorized transferee), provided that this option shall be exercisable only to the extent that this option was exercisable by the Participant on the date of his or her death or disability, and further provided that this option shall not be exercisable after the Final Exercise Date.

(e) Termination for Cause . If, prior to the Final Exercise Date, the Participant’s employment is terminated by the Company for Cause (as defined below), the right to exercise this option shall terminate immediately upon the effective date of such termination of employment. “Cause” shall mean: (1) if the Participant is party to an employment, service or severance agreement with the Company that contains a definition of “cause” for termination of employment or service, the meaning ascribed to such term in such agreement or (2) otherwise, any of (w) Participant’s willful failure substantially to perform his or her duties and responsibilities to the Company or deliberate violation of a Company policy; (x) Participant’s commission of any act of fraud, embezzlement, dishonesty or any other willful misconduct that has caused or is reasonably expected to result in material injury to the Company; (y) unauthorized use or disclosure by the Participant of any proprietary information or trade secrets of the Company or any other party to whom the Participant owes an obligation of nondisclosure as a result of his or her relationship with the Company; or (z) Participant’s willful breach of any of his or her obligations under any written agreement or covenant with the Company (including, without limitation, breach by the Participant of any provision of any employment, consulting, advisory, nondisclosure, non-competition or other similar agreement between the Participant and the Company), as determined by the Company, which determination shall be conclusive. The Participant’s employment shall be considered to have been terminated for Cause if the Company determines, within 30 days after the Participant’s resignation, that termination for Cause was warranted.

 

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4. Tax Matters .

(a) Withholding . No Shares will be issued pursuant to the exercise of this option unless and until the Participant pays to the Company, or makes provision satisfactory to the Company for payment of, any federal, state or local withholding taxes required by law to be withheld in respect of this option. Pursuant to Section 11(e) of the Plan, the Company shall determine, in its sole discretion, whether to allow the Participant to satisfy his or her tax withholding obligations through a broker-assisted cashless option exercise.

(b) Disqualifying Disposition . If the Participant disposes of Shares acquired upon exercise of any portion of this option which is qualified as an incentive stock option within two years from the Grant Date or one year after such Shares were acquired pursuant to exercise of this option, the Participant shall notify the Company in writing of such disposition.

 

5. Nontransferability of Option .

This option may not be sold, assigned, transferred, pledged or otherwise encumbered by the Participant, either voluntarily or by operation of law, except by will or the laws of descent and distribution, and, during the lifetime of the Participant, this option shall be exercisable only by the Participant. The terms of this Agreement shall be binding on the executors, administrators, heirs, successors and assigns of the Participant.

 

6. Miscellaneous

(a) No Rights to Service . The Participant acknowledges and agrees that the grant of this option pursuant to Section 1 and its vesting pursuant to Section 2 do not constitute an express or implied promise of continued service with the Company for the vesting period of the option, or for any period.

(b) Provisions of the Plan . This option is subject to the provisions of the Plan, a copy of which is furnished to the Participant with this Agreement.

(c) Severability . The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, and each other provision of this Agreement shall be severable and enforceable to the extent permitted by law.

(d) Waiver . Any provision for the benefit of the Company contained in this Agreement may be waived, either generally or in any particular instance, by the Board of Directors of the Company or the Committee (as defined in the Plan).

(e) Binding Effect . This Agreement shall be binding upon and inure to the benefit of the Company and the Participant and each of their respective heirs, executors, administrators, legal representatives, successors and assigns, subject to the restrictions on transfer set forth in Section 5 of this Agreement.

 

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(f) Notice . Except as provided in Section 6(i), all notices required or permitted hereunder shall be in writing or provided and deemed effectively given upon personal delivery or five calendar days after deposit in the United States Post Office, by registered or certified mail, postage prepaid, addressed to the other party hereto at, for the Company, its primary business address (attention: Chief Administrative Officer and, for the Participant, at the Participant’s home address as reflected in the records of the Company, or at such other address or addresses as either party shall designate to the other in accordance with this Section 6(f).

(g) Entire Agreement . This Agreement and the Plan constitute the entire agreement between the parties, and supersede all prior agreements and understandings, relating to the subject matter of this Agreement; provided that any separate employment or severance agreement between the Company and the Participant that includes terms relating to the acceleration of vesting of equity awards shall not be superseded by this Agreement. In the event of a conflict between the terms and provisions of the Plan and the terms and provisions of this Agreement, the Plan terms and provisions shall prevail.

(h) Governing Law . This Agreement shall be construed, interpreted and enforced in accordance with the internal laws of the State of Delaware, without regard to any applicable conflict of law principles.

(i) Electronic Delivery . The Company may, in its sole discretion, decide to deliver any documents related to participation in the Plan or awards granted under the Plan by electronic means or to request the Participant’s consent to participate in the Plan by electronic means or allow the Participant to provide notices by electronic means. The Participant hereby consents to receive such documents by electronic delivery and, if requested, the Participant agrees to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.

(j) Participant’s Acknowledgments . The Participant acknowledges that the Participant: (i) has read this Agreement; (ii) has been represented in the preparation, negotiation and execution of this Agreement by legal counsel of the Participant’s own choice or has voluntarily declined to seek such counsel; (iii) understands the terms and consequences of this Agreement; and (iv) is fully aware of the legal and binding effect of this Agreement.

[Signatures on Page Following]

 

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IN WITNESS WHEREOF, the Company has caused this option to be executed under its corporate seal by its duly authorized officer. This option shall take effect as a sealed instrument.

 

ENDURANCE INTERNATIONAL GROUP HOLDINGS, INC.
By:    
Name:    
Title:    

Dated:                                   

 

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PARTICIPANT’S ACCEPTANCE

By signing below (or by accepting the foregoing option through such other means as may be established by the Company or its third-party administrator from time to time), the Participant accepts the foregoing option and agrees to the terms and conditions thereof and acknowledges receipt of a copy of the Plan.

 

PARTICIPANT:
 

 

Address:    
   

Dated:                                   

 

6

Exhibit 10.5

ENDURANCE INTERNATIONAL GROUP HOLDINGS, INC.

Form of Nonstatutory Stock Option Agreement

Constant Contact, Inc. Second Amended and Restated 2011 Stock Incentive Plan

 

1. Grant of Option .

This agreement (the “Agreement”) evidences the grant by Endurance International Group Holdings, Inc., a Delaware corporation (the “Company”), on [            ], 20[    ] (the “Grant Date”) to [                        ] (the “Participant”) of an option to purchase, in whole or in part, on the terms provided herein and in the Constant Contact, Inc. Second Amended and Restated 2011 Stock Incentive Plan (the “Plan”), a total of [            ] shares (the “Shares”) of common stock, $0.0001 par value per share, of the Company (“Common Stock”) at $[            ] per Share. Unless earlier terminated, this option shall expire at 5:00 p.m., Eastern time, on [            ] (the “Final Exercise Date”).

It is intended that the option evidenced by this agreement shall not be an incentive stock option as defined in Section 422 of the Internal Revenue Code of 1986, as amended, and any regulations promulgated thereunder (the “Code”). Except as otherwise indicated by the context, the term “Participant”, as used in this option, shall be deemed to include any person who acquires the right to exercise this option validly under its terms.

 

2. Vesting Schedule .

This option will become exercisable (“vest”) as to 25% of the original number of Shares on [            ] (the “Vesting Commencement Date”) and as to an additional 2.0833% of the original number of Shares at the end of each successive one-month period following the Vesting Commencement Date until [            ].

The right of exercise shall be cumulative so that to the extent the option is not exercised in any period to the maximum extent permissible it shall continue to be exercisable, in whole or in part, with respect to all Shares for which it is vested until the earlier of the Final Exercise Date or the termination of this option under Section 3 hereof or the Plan.

 

3. Exercise of Option .

(a) Form of Exercise . Each election to exercise this option shall be in a form (which may be electronic) approved by the Company, and received by the Company or its designated third-party administrator, accompanied by this agreement and payment in full in the manner provided in the Plan or transmitted or signified in such other manner as provided at the time of exercise by the Company or such administrator. For purposes hereof, “third-party administrator” means E*Trade Corporate Financial Services, Inc. or any successor third-party stock option administrator designated by the Company from time to time. The Participant may purchase less than the number of shares covered hereby, provided that no partial exercise of this option may be for any fractional share.


(b) Continuous Relationship with the Company Required . Except as otherwise provided in this Section 3, this option may not be exercised unless the Participant, at the time he or she exercises this option, is, and has been at all times since the Grant Date, an employee, officer, or director of, or consultant or advisor to, the Company or any other entity the employees, officers, directors, consultants, or advisors of which are eligible to receive option grants under the Plan (an “Eligible Participant”)

(c) Termination of Relationship with the Company . If the Participant ceases to be an Eligible Participant for any reason, then, except as provided in paragraphs (d) and (e) below, the right to exercise this option shall terminate three months after such cessation (but in no event after the Final Exercise Date), provided that this option shall be exercisable only to the extent that the Participant was entitled to exercise this option on the date of such cessation. Notwithstanding the foregoing, if the Participant, prior to the Final Exercise Date, violates the non-competition or confidentiality provisions of any employment contract, confidentiality and nondisclosure agreement or other agreement between the Participant and the Company, the right to exercise this option shall terminate immediately upon written notice to the Participant from the Company describing such violation.

(d) Exercise Period Upon Death or Disability . If the Participant dies or becomes disabled (within the meaning of Section 22(e)(3) of the Code) prior to the Final Exercise Date while he or she is an Eligible Participant and the Company has not terminated such relationship for “cause” as specified in paragraph (e) below, this option shall be exercisable, within the period of six months following the date of death or disability of the Participant, by the Participant (or in the case of death by an authorized transferee), provided that this option shall be exercisable only to the extent that this option was exercisable by the Participant on the date of his or her death or disability, and further provided that this option shall not be exercisable after the Final Exercise Date.

(e) Termination for Cause . If, prior to the Final Exercise Date, the Participant’s employment or other relationship with the Company is terminated by the Company for Cause (as defined below), the right to exercise this option shall terminate immediately upon the effective date of such termination of employment or other relationship. “Cause” shall mean: (1) if the Participant is party to an employment, consulting, service or severance agreement with the Company that contains a definition of “cause” for termination of employment or other relationship, the meaning ascribed to such term in such agreement or (2) otherwise, any of (w) Participant’s willful failure to substantially perform his or her duties and responsibilities to the Company or deliberate violation of a Company policy; (x) Participant’s commission of any act of fraud, embezzlement, dishonesty or any other willful misconduct that has caused or is reasonably expected to result in material injury to the company; (y) unauthorized use or disclosure by the Participant of any proprietary information or trade secrets of the Company or any other party to whom the Participant owes an obligation of nondisclosure as a result of his or her relationship with the Company; or (z) Participant’s willful breach of any of his or her obligations under any written agreement or covenant with the Company (including, without limitation, breach by the Participant of any provision of any employment, consulting, advisory, nondisclosure, non-competition or other similar agreement between the Participant and the Company), as determined by the Company, which determination shall be conclusive. The Participant shall be considered to have been terminated for Cause if the Company determines, within 30 days after the Participant’s resignation, that termination for Cause was warranted.

 

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4. Withholding .

No Shares will be issued pursuant to the exercise of this option unless and until the Participant pays to the Company, or makes provision satisfactory to the Company for payment of, any federal, state or local withholding taxes required by law to be withheld in respect of this option. Pursuant to Section 11(e) of the Plan, the Company shall determine, in its sole discretion, whether to allow the Participant to satisfy his or her tax withholding obligations through a broker-assisted cashless option exercise.

 

5. Nontransferability of Option .

This option may not be sold, assigned, transferred, pledged or otherwise encumbered by the Participant, either voluntarily or by operation of law, except by will or the laws of descent and distribution, and, during the lifetime of the Participant, this option shall be exercisable only by the Participant. The terms of this Agreement shall be binding on the executors, administrators, heirs, successors and assigns of the Participant.

 

6. Miscellaneous .

(a) No Rights to Service . The Participant acknowledges and agrees that the grant of this option pursuant to Section 1 and its vesting pursuant to Section 2 do not constitute an express or implied promise of continued service with the Company for the vesting period of the option, or for any period.

(b) Provisions of the Plan . This option is subject to the provisions of the Plan, a copy of which is furnished to the Participant with this Agreement.

(c) Severability . The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, and each other provision of this Agreement shall be severable and enforceable to the extent permitted by law.

(d) Waiver . Any provision for the benefit of the Company contained in this Agreement may be waived, either generally or in any particular instance, by the Board of Directors of the Company or the Committee (as defined in the Plan).

(e) Binding Effect . This Agreement shall be binding upon and inure to the benefit of the Company and the Participant and each of their respective heirs, executors, administrators, legal representatives, successors and assigns, subject to the restrictions on transfer set forth in Section 5 of this Agreement.

(f) Notice . Except as provided in Section 6(i), all notices required or permitted hereunder shall be in writing or provided and deemed effectively given upon personal delivery or five calendar days after deposit in the United States Post Office, by registered or certified mail, postage prepaid, addressed to the other party hereto at, for the Company, its primary business address (attention: Chief Administrative Officer and, for the Participant, at the Participant’s home address as reflected in the records of the Company, or at such other address or addresses as either party shall designate to the other in accordance with this Section 6(f).

 

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(g) Entire Agreement . This Agreement and the Plan constitute the entire agreement between the parties, and supersede all prior agreements and understandings, relating to the subject matter of this Agreement; provided that any separate employment or severance agreement between the Company and the Participant that includes terms relating to the acceleration of vesting of equity awards shall not be superseded by this Agreement. In the event of a conflict between the terms and provisions of the Plan and the terms and provisions of this Agreement, the Plan terms and provisions shall prevail.

(h) Governing Law . This Agreement shall be construed, interpreted and enforced in accordance with the internal laws of the State of Delaware, without regard to any applicable conflict of law principles.

(i) Electronic Delivery . The Company may, in its sole discretion, decide to deliver any documents related to participation in the Plan or awards granted under the Plan by electronic means or to request the Participant’s consent to participate in the Plan by electronic means or allow the Participant to provide notices by electronic means. The Participant hereby consents to receive such documents by electronic delivery and, if requested, the Participant agrees to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.

(j) Participant’s Acknowledgments . The Participant acknowledges that the Participant: (i) has read this Agreement; (ii) has been represented in the preparation, negotiation and execution of this Agreement by legal counsel of the Participant’s own choice or has voluntarily declined to seek such counsel; (iii) understands the terms and consequences of this Agreement; and (iv) is fully aware of the legal and binding effect of this Agreement.

[Signatures on Following Page]

 

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IN WITNESS WHEREOF, the Company has caused this option to be executed under its corporate seal by its duly authorized officer. This option shall take effect as a sealed instrument.

 

ENDURANCE INTERNATIONAL GROUP HOLDINGS, INC.
By:    
Name:    
Title:    

Dated:                                   

 

5


PARTICIPANT’S ACCEPTANCE

By signing below (or by accepting the foregoing option through such other means as may be established by the Company or its third-party administrator from time to time), the Participant accepts the foregoing option and agrees to the terms and conditions thereof and acknowledges receipt of a copy of the Plan.

 

PARTICIPANT:
 

 

Address:    
   

Dated:                                   

Exhibit 10.6

ENDURANCE INTERNATIONAL GROUP HOLDINGS, INC.

Form of Restricted Stock Unit Agreement

Constant Contact, Inc. Second Amended and Restated 2011 Stock Incentive Plan

AGREEMENT (the “Agreement”) made between Endurance International Group Holdings, Inc., a Delaware corporation (the “Company”), and [            ] (“you”).

For valuable consideration, receipt of which is acknowledged, the Company and you agree as follows:

 

1. Grant of RSUs .

On [                        ] (the “Grant Date”) and subject to the terms and conditions set forth in this Agreement and in the Constant Contact, Inc. Second Amended and Restated 2011 Stock Incentive Plan (the “Plan”), the Company has granted you Restricted Stock Units (“RSUs”) providing you with the right to receive [            ] shares of common stock (“Common Stock”), $0.0001 par value per share, of the Company (the “Shares”).

 

2. Vesting and Forfeiture .

(a) While you remain employed by, or engaged to provide services on an individual basis to, the Company, 25% of the RSUs will vest on the first anniversary of [            ], and 25% of the RSUs will vest at the end of each successive one-year period thereafter, such that 100% of the RSUs will be fully vested on [            ]. The date upon which any of the RSUs vest will be considered a “Vesting Date” for the RSUs that vest on that date. Any fractional Shares that would otherwise vest as of a particular date will be rounded down and carried forward to the next Vesting Date until a whole Share can be issued.

(b) Absent any contrary provision in the Plan or any other applicable plan or agreement, if you cease to be employed by, or engaged to provide services on an individual basis to, the Company for any reason or no reason, you will immediately and automatically forfeit all rights to any of your RSUs that have Vesting Dates after the date your employment or other service providing relationship with the Company ends.

 

3. Issuance of Shares .

Subject to the terms and conditions of this Agreement (including any Withholding Tax obligations), after each Vesting Date, the Company will issue to you (or your estate, or an account at a brokerage firm designated by the Company), within three (3) business days following such Vesting Date, one Share for each RSU that vested on such Vesting Date. Until each applicable Vesting Date, you will have no rights to any Shares, and until the Company delivers the Shares to you, you will not have any rights associated with such Shares, including without limitation voting rights, dividends or dividend equivalents.


4. Transferability .

The RSUs and Shares they represent may not be sold, assigned, transferred, pledged, hypothecated or otherwise disposed of (whether by operation of law or otherwise) (collectively, a “transfer”), except that this Agreement may be transferred by the laws of descent and distribution or as otherwise permitted under the Plan. You may only transfer the Shares that may be issued pursuant to this Agreement following their issuance to you.

 

5. Withholding Taxes .

(a) You acknowledge that you have reviewed with your own tax advisors the federal, state, local and foreign tax consequences of this investment and the actions contemplated by this Agreement. You affirm that you are relying solely on such advisors and not on any statements or representations of the Company or any of its agents.

(b) The Company’s obligation to deliver Shares to you upon or after the vesting of the RSUs shall be subject to your satisfaction of all income tax (including federal, state and local taxes), social insurance, payroll tax, payment on account or other tax related withholding requirements, as determined by the Company (“Withholding Taxes”).

(c) You acknowledge and agree that the Company has the right to deduct from payments of any kind otherwise due to you any Withholding Taxes to be withheld with respect to the actions contemplated by this Agreement.

(d) Without limiting the generality of the foregoing Section 5(c), except as provided in the next sentence, the Company shall withhold a number of Shares issuable in payment of any vested RSUs having a Fair Market Value, as of the Vesting Date of such RSUs, equal to the Withholding Taxes with respect to such RSUs. If the Company cannot (under applicable legal, regulatory, listing or other requirements, or otherwise) satisfy such Withholding Taxes in such method, the Company may satisfy such Withholding Taxes by any one or combination of the following methods: (i) by requiring you to pay such Withholding Taxes in cash or by check; (ii) by deducting such Withholding Taxes out of any other compensation otherwise payable to you by the Company; (iii) by allowing you to surrender shares of Common Stock which (x) in the case of shares initially acquired from the Company (upon exercise of a stock option or otherwise), have been owned by you for such period (if any) as may be required to avoid a charge to the Company’s earnings, and (y) have a Fair Market Value on the date of surrender equal to such Withholding Taxes; and/or (iv) by selling or arranging to sell such number of shares issuable in respect of any vested RSUs. The Company is hereby authorized to take such actions as are necessary to effect the withholding of any and all such Withholding Taxes in accordance with this Section 5(d).

 

6. Securities Laws .

Notwithstanding any other provision of the Plan or this Agreement, the Company will not be required to issue, and you may not sell, assign, transfer or otherwise dispose of, any shares of Common Stock received as payment of the RSUs, unless (a) there is in effect with respect to the shares of Common Stock received as payment of the RSUs a registration statement under the

 

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Securities Act of 1933, as amended, and any applicable state or foreign securities laws or an exemption from such registration, and (b) there has been obtained any other consent, approval or permit from any other regulatory body that the Compensation Committee (the “Committee”) of the Company’s Board of Directors, in its sole discretion, deems necessary or advisable. The Company may condition such issuance, sale or transfer upon the receipt of any representations or agreements from the parties involved, and the placement of any legends on certificates representing Common Stock received as payment of the RSUs, as may be deemed necessary or advisable by the Company to comply with such securities law or other restrictions.

 

7. Provisions of the Plan .

This Agreement is subject to the provisions of the Plan, a copy of which is furnished to you with this Agreement. Any capitalized terms used in this Agreement but not otherwise defined in the Agreement shall have the same meaning as in the Plan.

 

8. Miscellaneous .

(a) No Rights to Service . You acknowledge and agree that the grant of the RSUs pursuant to Section 1 and their vesting pursuant to Section 2 do not constitute an express or implied promise of continued service with the Company for the vesting period of the RSUs, or for any period.

(b) Provisions of the Plan . This RSUs are subject to the provisions of the Plan, a copy of which is furnished to you with this Agreement.

(c) Section 409A . This Agreement is intended to comply with the requirements of Section 409A and shall be construed consistently therewith. In any event, the Company makes no representation or warranty and will have no liability to you or any other person, other than with respect to payments made by the Company in violation of the provisions of this Agreement, if any provisions of or payments under this Agreement are determined to constitute deferred compensation subject to Section 409A but not to satisfy the conditions of that section.

(d) Unsecured Creditor . This Agreement shall create a contractual obligation on the part of Company to make payment of the RSUs credited to your account at the time provided for in this Agreement. Neither you nor any other party claiming an interest in the RSUs or related stock hereunder shall have any interest whatsoever in any specific assets of the Company. Your right to receive payments hereunder shall be that of an unsecured general creditor of Company.

(e) Severability . The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, and each other provision of this Agreement shall be severable and enforceable to the extent permitted by law.

(f) Waiver . Any provision for the benefit of the Company contained in this Agreement may be waived, either generally or in any particular instance, by the Board of Directors of the Company or the Committee.

 

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(g) Binding Effect . This Agreement shall be binding upon and inure to the benefit of the Company and you and its and your respective heirs, executors, administrators, legal representatives, successors and assigns, subject to the restrictions on transfer set forth in Section 4 of this Agreement.

(h) Notice . Except as provided in Section 8(k), all notices required or permitted hereunder shall be in writing or provided and deemed effectively given upon personal delivery or five calendar days after deposit in the United States Post Office, by registered or certified mail, postage prepaid, addressed to the other party hereto at, for the Company, its primary business address (attention: Chief Administrative Officer and, for you, at your home address as reflected in the records of the Company, or at such other address or addresses as either party shall designate to the other in accordance with this Section 8(h).

(i) Entire Agreement . This Agreement and the Plan constitute the entire agreement between the parties, and supersede all prior agreements and understandings, relating to the subject matter of this Agreement.

(j) Governing Law . This Agreement shall be construed, interpreted and enforced in accordance with the internal laws of the State of Delaware without regard to any applicable conflicts of laws.

(k) Electronic Delivery . The Company may, in its sole discretion, decide to deliver any documents related to participation in the Plan or awards granted under the Plan by electronic means or to request your consent to participate in the Plan by electronic means or allow you to provide notices by electronic means. You hereby consent to receive such documents by electronic delivery and, if requested, you agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.

(l) Your Acknowledgments . You acknowledge that you: (i) have read this Agreement; (ii) have been represented in the preparation, negotiation and execution of this Agreement by legal counsel of your own choice or have voluntarily declined to seek such counsel; (iii) understand the terms and consequences of this Agreement; and (iv) are fully aware of the legal and binding effect of this Agreement.

[Signatures on Page Following]

 

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IN WITNESS WHEREOF, the Company has caused this grant to be executed under its corporate seal by its duly authorized officer. This grant shall take effect as a sealed instrument.

 

ENDURANCE INTERNATIONAL GROUP HOLDINGS, INC.
By:    
Name:    
Title:    

Dated:                                   

 

5


PARTICIPANT’S ACCEPTANCE

By signing below (or by accepting the foregoing grant through such other means as may be established by the Company or its third-party administrator from time to time), I hereby accept the foregoing grant and agree to the terms and conditions thereof and acknowledge receipt of a copy of the Plan.

 

PARTICIPANT:
 

 

Address:    
   

Dated:                                   

 

6

Exhibit 10.7

EMPLOYMENT AGREEMENT

EMPLOYMENT AGREEMENT (the “ Agreement ”), made and entered into as of February 22, 2016 by and between Endurance International Group Holdings, Inc., a Delaware corporation (together with its successors and assigns permitted under this Agreement, the “ Company ”) and Ronald LaSalvia (the “ Executive ”).

W I T N E S S E T H:

WHEREAS, the Company desires to continue to employ the Executive as its President and Chief Operating Officer as of and following the Effective Date (as defined below) and desires to memorialize the terms and conditions of such employment in this Agreement;

NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and for other good and valuable consideration, the receipt of which is mutually acknowledged, the Parties agree as follows:

1. DEFINITIONS. As used in this Agreement, capitalized terms shall have the meanings set forth in this Agreement. The following capitalized terms shall have the following meanings:

(a) “ Affiliate ” of a Person shall mean a Person that directly or indirectly Controls, is Controlled by, or is under common Control with the Person specified.

(b) “ Annual Bonus ” shall mean the annual cash bonus, if any, payable to the Executive in respect of any given calendar year pursuant to Section 5 of this Agreement.

(c) “ Base Salary ” shall mean the annual rate of base salary provided for in Section 4 below or any increased annual rate of base salary granted to the Executive pursuant to Section 4 of this Agreement.

(d) “ Board ” shall mean the Board of Directors of the Company.

(e) “ Cause ” shall mean:

(i) a continued failure of the Executive to perform his duties and responsibilities (other than as a result of physical or mental illness or injury) after receipt of written notice from the Board of such failure, provided that the Executive shall have 30 calendar days after the date of receipt of such notice in which to cure such failure (to the extent cure is possible);

(ii) the Executive’s willful misconduct or gross negligence which is materially injurious to the Company or any of its Affiliates (whether financially, reputationally or otherwise);

(iii) a breach by the Executive of his fiduciary duty or duty of loyalty to the Company or its Affiliates which is materially injurious to the Company or any of its Affiliates (whether financially, reputationally or otherwise);

 

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(iv) the indictment of the Executive for any felony or other serious crime involving moral turpitude; or

(v) the Executive’s (A) breach of any restrictive covenant regarding competition or solicitation or (B) material breach of any other restrictive covenant (including, without limitation, non-disclosure of confidential information), in each case to which he is subject pursuant to this Agreement or any other agreement with the Company or any of its Affiliates (the “ Restrictive Covenants ”); provided that, in the case of a breach described in clause (v)(B) above, the Board shall provide the Executive with written notice of such breach and the Executive shall have 30 calendar days after the date of receipt of such notice in which to cure such failure (to the extent cure is possible).

If, within the three-month period immediately following the Termination Date, it is discovered that the Executive engaged in conduct which could have resulted in the Executive’s employment with the Company being terminated for Cause, as such term is defined above, the Participant’s employment shall, at the election of the Board, in its sole discretion, be deemed to have been terminated for Cause retroactively to the date the events giving rise to Cause occurred.

(f) A “ Change in Control ” shall mean the occurrence of one or more of the following events:

(i) the acquisition by an individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, and amended (the “ Exchange Act ”)) (a “ 13D Person ”) of beneficial ownership of any capital stock of the Company if, after such acquisition, such 13D Person beneficially owns (within the meaning of Rule 13d-3 under the Exchange Act) 50% or more of either (x) the then-outstanding shares of common stock of the Company (the “ Outstanding Company Common Stock ”) or (y) the combined voting power of the then-outstanding securities of the Company entitled to vote generally in the election of directors (the “ Outstanding Company Voting Securities ”); provided , however, that for purposes of this subsection (i), the following acquisitions shall not constitute a Change in Control: (I) any acquisition directly from the Company (excluding an acquisition pursuant to the exercise, conversion or exchange of any security exercisable for, convertible into or exchangeable for common stock or voting securities of the Company, unless the 13D Person exercising, converting or exchanging such security acquired such security directly from the Company or an underwriter or agent of the Company) or (II) any acquisition by any corporation pursuant to a Business Combination (as defined below) which complies with clauses (x) and (y) of subsection (iii) of this definition; or

(ii) a change in the composition of the Board that results in the Continuing Directors (as defined below) no longer constituting a majority of the Board (or, if applicable, the Board of Directors of a successor corporation to the Company), where the term “ Continuing Director ” means at any date a member of the Board (x) who was a member of the Board on the date of the initial adoption of this Agreement by the Board or (y) who was nominated or elected subsequent to such date by at least a majority of the directors who were Continuing Directors at the time of such nomination or election or whose election to the Board was recommended or endorsed by at least a majority of the directors who were Continuing

 

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Directors at the time of such nomination or election; provided , however, that there shall be excluded from this clause (y) any individual whose initial assumption of office occurred as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents, by or on behalf of a person other than the Board; or

(iii) the consummation of a merger, consolidation, reorganization, recapitalization or share exchange involving the Company or a sale or other disposition of all or substantially all of the assets of the Company (a “ Business Combination ”), unless, immediately following such Business Combination, each of the following two conditions is satisfied: (x) all or substantially all of the individuals and entities who were the beneficial owners of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then-outstanding shares of common stock and the combined voting power of the then-outstanding securities entitled to vote generally in the election of directors, respectively, of the resulting or acquiring corporation in such Business Combination (which shall include, without limitation, a corporation which as a result of such transaction owns the Company or substantially all of the Company’s assets either directly or through one or more subsidiaries) (such resulting or acquiring corporation is referred to herein as the “ Acquiring Corporation ”) in substantially the same proportions as their ownership of the Outstanding Company Common Stock and Outstanding Company Voting Securities, respectively, immediately prior to such Business Combination and (y) no 13D Person (excluding any employee benefit plan (or related trust) maintained or sponsored by the Company or by the Acquiring Corporation) beneficially owns, directly or indirectly, 50% or more of the then-outstanding shares of common stock of the Acquiring Corporation, or of the combined voting power of the then-outstanding securities of such corporation entitled to vote generally in the election of directors (except to the extent that such ownership existed prior to the Business Combination); or

(iv) the liquidation or dissolution of the Company;

provided, however, that to the extent required with respect to any payment hereunder that is subject to Section 409A of the Code, the Change in Control must be a “change in control event” within the meaning of Treasury Regulation Section 1.409A-3(i)(5)(i).

(g) “ Change in Control Period ” shall mean the period beginning on the date on which a Change in Control is consummated and ending on the one-year anniversary thereof.

(h) “ COBRA ” shall mean the Consolidated Omnibus Budget Reconciliation Act.

(i) “ Code ” shall mean the Internal Revenue Code of 1986, as amended, and all rules and regulations promulgated thereunder.

(j) “ Company Employee ” shall mean an employee, director or independent contractor of or for the Company or any of its Affiliates (to the extent such Affiliate is engaged in a Competing Business).

 

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(k) “ Competing Business ” shall mean any business engaged in a line of business in which the Company or its subsidiaries (i) is engaged as of the Termination Date, (ii) has memorialized plans (electronically or otherwise) to become engaged within the six-month period immediately following the Termination Date or (iii) has plans of which the Executive knows (or of which there is a reasonable expectation that the Executive should have known) to become engaged within the six-month period immediately following the Termination Date.

(l) “ Control ” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

(m) “ Effective Date ” shall mean the date specified in Section 2 below.

(n) “ Person ” shall mean an individual, partnership, corporation, limited liability company, unincorporated organization, trust or joint venture, or a governmental agency or political subdivision thereof.

(o) “ Restricted Period ” shall mean the period beginning on the Termination Date and ending eighteen months after the Termination Date.

(p) “ Stock Incentive Plan ” shall mean the Endurance International Group Holdings, Inc. 2013 Stock Incentive Plan (or its successor).

(q) “ Termination Date ” shall mean the date specified in Section 9(b).

(r) “ Term of Employment ” shall mean the period specified in Section 2 below (including any extension as provided therein).

(s) “ Work Product ” shall mean all ideas, works of authorship, inventions and other creations, whether or not patentable, copyrightable, or subject to other intellectual-property protection, that are made, conceived, developed or worked on in whole or in part by the Executive while employed by the Company and/or any of its Affiliates, that relate in any manner whatsoever to the business, existing or proposed, of the Company and/or any of its Affiliates, or any other business or research or development effort in which the Company and/or any of its Affiliates engages during the Term of Employment.

2. TERM OF EMPLOYMENT.

The Term of Employment shall begin on February 22, 2016 (the “ Effective Date ”). Subject to the terms hereof, the Term of Employment shall extend until the second anniversary of the Effective Date. Commencing on the second anniversary of the Effective Date and on each anniversary thereafter, the Term of Employment shall be renewed automatically for succeeding terms of (1) year, unless either Party gives written notice to the other Party at least ninety (90) days prior to the expiration of the then-current term of the intention not to renew (a “ Non-Renewal Notice ”). If a Non-Renewal Notice is provided by either Party, then the Executive’s employment with the Company shall cease as of the end of the then-current Term of Employment. Notwithstanding the foregoing, the Term of Employment may be earlier terminated by either Party in accordance with the provisions of Section 8, 9, and 10 of this Agreement, and in such event the Term of Employment shall end on the Termination Date.

 

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3. POSITION, DUTIES AND RESPONSIBILITIES.

(a) During the Term of Employment, the Executive shall be employed as the President and Chief Operating Officer of the Company and shall have such duties, responsibilities and authority as shall be reasonably determined from time to time by the Chief Executive Officer of the Company (the “ CEO ”). Further, the Executive shall (i) serve on such boards of directors of subsidiaries of the Company and/or (ii) hold such corporate officer titles and positions of the Company and any of its subsidiaries, as may be requested by the CEO in his sole discretion, in any such case without additional compensation therefor. The Executive, in carrying out his duties under this Agreement, shall report directly to the CEO. During the Term of Employment, subject to Section 3(b) and except for permitted vacation periods and reasonable periods of illness, the Executive shall devote substantially all of his business time and attention to the performance of his duties hereunder and shall use his reasonable best efforts, skills and abilities to promote the Company’s interests.

(b) Nothing herein shall preclude the Executive from (i) continuing to serve as a director and advisor on the board of directors of the corporations and entities set forth on Schedule I hereto, (ii) serving on up to one other board of directors (or advisory committee) of a corporation or entity with the prior express written consent of the Board (which consent will not be unreasonably withheld), (iii) serving on the boards of a reasonable number of trade associations and civic or charitable organizations and (iv) managing personal investments, so long as such activities set forth in this Section 3(b) do not conflict or materially interfere with the effective discharge of his duties and responsibilities under Section 3(a) above.

4. BASE SALARY.

During the Term of Employment, the Executive shall be paid an annualized gross Base Salary, payable in accordance with the regular payroll practices of the Company, of $400,000. The Base Salary shall be reviewed annually for increase (but not decrease) in the sole discretion of the Board.

5. ANNUAL BONUS OPPORTUNITY.

During the Term of Employment, the Executive shall be eligible to earn an Annual Bonus pursuant to the terms and conditions of any annual Management Incentive Plan adopted by the Company in respect of each full fiscal year occurring during the Term of Employment, subject to the Executive’s continued employment through the date on which payments are made under the applicable Management Incentive Plan. The target amount of the Annual Bonus (the “ Target Annual Bonus Opportunity ”) shall be 60% of the Executive’s Base Salary.

 

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6. EMPLOYEE BENEFIT PROGRAMS.

During the Term of Employment, the Executive shall be entitled to participate in any employee retirement, welfare and fringe benefit plans and programs made available to the Company’s senior executive officer level employees generally, as such plans or programs may be in effect from time to time. The Company shall pay the expenses associated with the Executive’s participation in such benefit plans to the same extent the Company pays the expenses associated with the participation by other similarly situated senior executive officer level employees of the Company.

7. REIMBURSEMENT OF BUSINESS AND OTHER EXPENSES; PERQUISITES; VACATIONS.

(a) Business Expenses . The Executive is authorized to incur reasonable expenses in carrying out his duties and responsibilities under this Agreement and the Company shall promptly reimburse him for all reasonable business expenses incurred in connection with the performance of his duties hereunder, subject to the Executive’s provision of reasonable documentation of such expenses in accordance with the Company’s business expense reimbursement policy as may be in effect from time to time.

(b) Perquisites . During the Term of Employment, the Executive shall be entitled to any perquisites that are generally offered to other senior executive officers of the Company, on terms and conditions as determined by the Company from time to time.

(c) Vacation . Consistent with Company’s policy for executive employees, the Executive will not accrue paid vacation.

8. TERMINATION OF EMPLOYMENT.

(a) Death . The Executive shall terminate employment with the Company, and the Term of Employment shall terminate, upon the Executive’s death.

(b) Disability . The Company shall be entitled to terminate the Executive’s employment for Disability if the Executive has experienced a permanent disability as defined in the Company’s long-term disability plans (a “ Disability ”). The termination of the Executive’s employment by the Company for Disability shall not be considered a termination without Cause for purposes of this Agreement.

(c) For or Without Cause or Voluntarily (Other Than for Good Reason) . The Company may terminate the Executive’s employment for Cause or without Cause. The Executive may voluntarily terminate his employment, other than for Good Reason (“ Voluntary Resignation ”), provided that the Executive provides the Company with notice of his intent to terminate his employment at least thirty (30) days in advance of the Termination Date.

(d) Good Reason . The Executive may terminate his employment with the Company for Good Reason. For purposes of this Agreement, “ Good Reason ” shall mean, in connection with the Executive’s termination of employment, the occurrence of any of the following events without his consent:

(i) a material diminution in the Executive’s duties and responsibilities other than a change in the Executive’s duties and responsibilities that results from becoming part of a larger organization following a Change in Control;

 

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(ii) the Company’s material breach of this Agreement, including the failure to timely pay Base Salary or any other amounts due under this Agreement; or

(iii) a relocation of the Executive’s primary work location after the Effective Date such that his daily commute is increased by more than 40 miles;

provided that, within 30 days following the occurrence of any of the events set forth in clauses (i), (ii) or (iii), the Executive shall have delivered written notice to the Company of his intention to terminate his employment for Good Reason, which notice specifies in reasonable detail the circumstances claimed to give rise to the Executive’s right to terminate employment for Good Reason, and the Company shall not have cured such circumstances within 30 days following the Company’s receipt of such notice.

9. PROCEDURE FOR TERMINATION OF EMPLOYMENT.

(a) Notice of Termination of Employment . Any termination of the Executive’s employment with the Company (other than a termination of employment on account of the death of the Executive) shall be communicated by written “ Notice of Termination ” to the other party hereto in accordance with Section 25 hereof.

(b) Termination Date . The Termination Date shall mean: (i) if the Executive’s termination of employment occurs due to the Executive’s death, the date of the Executive’s death; (ii) if the Executive’s termination of employment occurs due to the Executive’s Disability, the date on which the Executive receives a Notice of Termination from the Company; (iii) if the Executive’s termination of employment occurs due to the Executive’s Voluntary Resignation, the date specified in the notice given pursuant to Section 8(c) hereof, which shall not be less than thirty (30) days after Company’s receipt of the Notice of Termination; (iv) if the Executive’s termination of employment occurs due to the Executive’s termination for Good Reason, the date of his termination in accordance with Section 8(d) hereof; (v) if the Executive’s termination of employment occurs pursuant to a non-renewal of the Term of Employment by either Party, the end of the then-current Term of Employment; and (vi) if the Executive’s termination of employment occurs for any other reason, the date on which a Notice of Termination is given or any later date (within thirty (30) days, or any alternative time period agreed upon by the Parties, after the giving of such Notice of Termination) set forth in such Notice of Termination. Effective as of the Termination Date, unless otherwise determined by the Board, the Executive shall be deemed to have resigned from any and all positions he then holds with the Company and its Affiliates.

10. PAYMENTS UPON TERMINATION OF EMPLOYMENT.

(a) Termination Due to Death or Disability . In the event that the Executive’s employment hereunder is terminated due to his death or Disability, the Executive (or his estate or his beneficiaries, in the event of his death), shall be entitled to receive:

(i) Payment in respect of (A) his accrued but unpaid Base Salary through the Termination Date, (B) any unpaid business expense reimbursements due to the Executive under Section 7 of this Agreement and (C) notwithstanding

 

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anything to the contrary in Section 5 of this Agreement or the applicable Management Incentive Plan, in the event that the Termination Date occurs after the end of a fiscal year, but prior to the date on which the Annual Bonus earned by the Executive with respect to such fiscal year is paid to the Executive, payment of such Annual Bonus ((A), (B) and (C) together, the “ Accrued Amounts ”). The Accrued Amounts shall be paid as soon as reasonably practicable, but no later than thirty (30) days, following the Termination Date; and

(ii) any amounts or benefits to which the Executive is then entitled under the terms of the benefit plans then-sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A of the Code).

(b) Termination by the Company for Cause, Voluntary Resignation or Termination Due to Non-Renewal . In the event the Company terminates the Executive’s employment hereunder for Cause or in the event of a Voluntary Resignation, or the Executive’s employment hereunder is terminated as a result of the delivery of a Non-Renewal Notice, the Executive shall be entitled to receive:

(i) payment of the Accrued Amounts as soon as reasonably practicable, but no later than thirty (30) days, following the Termination Date; and

(ii) any amounts or benefits to which the Executive is then entitled under the terms of the benefit plans then-sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A of the Code).

(c) Termination by the Company without Cause or by the Executive for Good Reason .

(i) In the event that the Executive’s employment hereunder is (x) terminated by the Company without Cause, other than due to Disability or death or (y) the Executive resigns for Good Reason, the Executive shall be entitled to receive:

(A) payment of the Accrued Amounts as soon as reasonably practicable, but no later than thirty (30) days, following the Termination Date;

(B) any amounts or benefits to which the Executive is then entitled under the terms of the benefit plans then-sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A of the Code); and

 

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(C) subject to (x) the Executive’s satisfaction of the Release Requirements and (y) the Executive’s continued compliance with the Restrictive Covenants:

(1) continued payment of Base Salary at the annualized rate in effect on the Termination Date for a period of:

 

  (A) if the Termination Date does not occur within the Change in Control Period, twelve (12) months following the Termination Date; or

 

  (B) if the Termination Date does occur within the Change in Control Period, eighteen (18) months following the Termination Date,

in either case payable in accordance with the Company’s usual and customary payroll practices;

(2) payment of the Target Annual Bonus Opportunity in effect on the Termination Date, payable in equal monthly installments over a period of:

 

  (A) twelve (12) months following the Termination Date if the Termination Date does not occur within the Change in Control Period; or

 

  (B) eighteen (18) months following the Termination Date if the Termination Date does occur within the Change in Control Period,

in either case payable in accordance with the Company’s usual and customary payroll practices; and

(3) provided the Executive is eligible for and timely elects to continue receiving group medical insurance under COBRA, pay (but in no event for longer than eighteen (18) months following the Executive’s Termination Date) for such COBRA coverage (the “ COBRA Amount ”); provided , however , that if the Executive becomes re-employed with another employer and becomes eligible for medical insurance coverage under a plan maintained by such employer, the Executive shall be obligated to provide the Company with written notice of his new employment within five (5) business days of obtaining such new employment and the reimbursement by the Company of the COBRA Amount shall cease and the Company shall have no further obligation in connection therewith; and provided , further , that if the Company’s provision of the COBRA Amount will violate the nondiscrimination requirements of applicable law, this benefit will not apply.

 

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(ii) Payments to be made under Section 10(c)(i)(C) (the “ Severance Payments ”) shall be provided or shall commence on the 60 th day after the Termination Date (the “ Release Date ”), provided that, as of the 50 th day after the Termination Date, the Release Requirements are satisfied. If the Release Requirements are not satisfied as of the 50 th day after the Termination Date (and the Release has been provided to the Executive as of the Termination Date), then the Executive shall not be entitled to any payments or benefits under the foregoing subsections and the Company and its Affiliates shall have no further obligations in connection therewith. If the Release Requirements are satisfied, then the portion of the Severance Payments which would otherwise have been paid during the period between the Termination Date and the Release Date shall instead be paid as soon as reasonably practicable following the Release Date. For purposes of this Agreement, the “ Release Requirements ” shall be satisfied if, as of the applicable date, the Executive has executed a general release of claims against the Company and its Affiliates in substantially the form attached hereto as Exhibit A and the revocation period required by applicable law has expired without the Executive’s revocation of such release.

(d) No Mitigation Requirement or Offset . In the event of any termination of employment under this Section 10, the Executive shall be under no obligation to seek other employment and, except as otherwise provided in Section 10(c)(i)(C)(3), there shall be no offset against amounts due the Executive under this Agreement on account of any remuneration attributable to any subsequent employment that he may obtain.

(e) No Other Severance Benefits . Except as specifically set forth in this Agreement, the Executive covenants and agrees that the Executive shall not be entitled to any other form of severance or termination payments or benefits from the Company, including, without limitation, payments or benefits otherwise payable under any of the Company’s regular severance policies.

(f) Nature of Payments . Any amounts due under this Section 10 are in the nature of severance payments considered to be reasonable by the Company and the Executive and are not in the nature of a penalty.

11. RESTRICTIVE COVENANTS.

(a) Non-Competition .

(i) The Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its Affiliates and accordingly agrees that during the Term of Employment and the Restricted Period, the Executive will not directly or indirectly become an employee, director, or independent contractor of, or a consultant to, or perform any services for, or acquire any financial interest in, any Person engaging in a Competing Business.

(ii) Notwithstanding anything to the contrary in this Agreement, the Executive may:

(A) directly or indirectly own, solely as an investment, securities of any Person engaged in a Competing Business which are publicly traded on a national or regional stock exchange or on the over-

 

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the-counter market if the Executive (1) is not a controlling person of, or a member of a group which controls, such person and (2) does not, directly or indirectly, own one percent (1%) or more of any class of securities of such Person (excluding any interest the Executive owns through a mutual fund, private equity fund or other pooled account);

(B) provide services for a subsidiary or division of a Person that is engaged in a Competing Business as long as such subsidiary or division (1) is not itself engaged in a Competing Business and (2) does not, and the Executive does not, provide any services to the Person that is engaged in a Competing Business that relate (directly or indirectly) to such Competing Business; and

(C) continue to engage in those activities set forth in Section 3(b), provided that Executive is not engaging in such activities for a Competing Business.

(b) Non-Solicitation .

(i) During the Term of Employment and the Restricted Period, the Executive will not, whether on the Executive’s own behalf or on behalf of or in conjunction with any person, company, business entity or other organization whatsoever, solicit or hire, or attempt to solicit or hire:

(A) any customer or supplier of the Company or any of its Affiliates in connection with any business activity that then competes with the Company or such Affiliate(s) or to terminate or alter in a manner adverse to the Company or such Affiliate(s) such customer’s or supplier’s relationship with the Company or such Affiliate(s); or

(B) any Company Employee or individual who was a Company Employee within the six-month period immediately prior thereto to terminate or otherwise alter his or her employment with, and/or provision of services for, the Company or its Affiliates.

(c) Confidentiality .

(i) The Executive hereby agrees that, during the Term of Employment and thereafter, other than in the proper performance of his duties for the Company and its Affiliates, he will hold in strict confidence any proprietary information or Confidential Information related to the Company or any of its Affiliates. For purposes of this Agreement, the term “ Confidential Information ” shall mean all information of the Company or any of its Affiliates (in whatever form) which is not generally known to the public, including without limitation any inventions, processes, methods of distribution, customer lists or customers’ or trade secrets, provided that Confidential Information shall not include (A) information the Executive is required to disclose by applicable law, regulation or legal process so long as the Executive notifies the Company promptly (it being understood that

 

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“promptly” shall mean “prior to” unless prior notice is not possible, in which case “promptly” shall mean as soon as practicable following) of the Executive’s obligation to disclose Confidential Information by applicable law, regulation or legal process and cooperates with the Company to limit the extent of such disclosure, or (B) any information that is or becomes publicly known through no fault of the Executive. Notwithstanding anything to the contrary, the Executive is not prohibited from reporting possible violations of federal law or regulations to any governmental agency or entity, including but not limited to the Department of Justice, the Securities and Exchange Commission, the Congress, and any agency Inspector General, or making other disclosures that are protected under the whistleblower provisions of federal law or regulation and the Executive is not required to obtain the Company’s approval or notify the Company that the Executive intends to make or has made such a report or disclosure.

(ii) The Executive agrees that at the time of the termination of his employment with the Company, whether at the insistence of the Executive or the Company, and regardless of the reasons therefor, he will deliver to the Company, and not keep or deliver to anyone else, any and all notes, files, memoranda, papers and, in general, any and all physical and electronic matter containing Confidential Information, including any and all documents significant to the conduct of the business of the Company or any subsidiary or Affiliate of the Company which are in his possession, except for any documents for which the Company or any subsidiary or Affiliate of the Company has given written consent to removal at the time of the termination of the Executive’s employment.

(d) Non-Disparagement . The Executive agrees that he will not, any time during the Term of Employment and on or after the time of the termination of his employment with the Company for any reason, directly or indirectly, disparage (i) the Company or its Affiliates, (ii) the business, property or assets of the Company or its Affiliates, or (iii) any of the former, current or future officers, directors, employees or shareholders of the Company or its Affiliates. The Company shall use its reasonable best efforts to cause its officers and members of the Board (in their individual capacities or on behalf of the Company) not to, at any time during the Term of Employment and on or after the time of the termination of Executive’s employment with the Company for any reason, directly or indirectly, make or publish any disparaging statements or remarks about the Executive. Nothing in this Section shall be construed to limit the ability of Executive or the Company’s officers or members of the Board (in their individual capacities or on behalf of the Company) to give truthful testimony pursuant to valid legal process, including but not limited to, a subpoena, court order or a government investigative matter.

(e) Injunctive Relief; Effect of Violation on Severance Payments . It is impossible to measure in money the damages that will accrue to the Company or any of its Affiliates in the event that the Executive breaches any of the Restrictive Covenants. In the event that the Executive breaches any such Restrictive Covenant, the Company or any of its Affiliates shall be entitled to an injunction restraining the Executive from violating such Restrictive Covenant (without posting any bond). If the Company or any of its Affiliates shall institute any action or proceeding to enforce any such Restrictive Covenant, the Executive hereby waives the

 

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claim or defense that the Company or any of its Affiliates has an adequate remedy at law and agrees not to assert in any such action or proceeding the claim or defense that the Company or any of its Affiliates has an adequate remedy at law. The foregoing shall not prejudice the Company’s or any of its Affiliates’ other rights or remedies under applicable law or equity. In addition, the Company and the Executive agree that the Executive violates any Restrictive Covenant, the Company may cease payment of the Severance Payments and shall also be entitled to recoup any portion of the Severance Payments that were previously paid to the Executive.

12. WORK PRODUCT.

(a) In consideration of the Company’s promises and undertakings in this Agreement, the Executive agrees that all Work Product will be disclosed promptly by the Executive to the Company, shall be the sole and exclusive property of the Company, and is hereby assigned to the Company, regardless of whether (i) such Work Product was conceived, made, developed or worked on during regular hours of his employment or his time away from his employment, (ii) the Work Product was made at the suggestion of the Company; or (iii) the Work Product was reduced to drawing, written description, documentation, models or other tangible form. Without limiting the foregoing, the Executive acknowledges that all original works of authorship that are made by the Executive, solely or jointly with others, within the scope of his employment and that are protectable by copyright are “works made for hire,” as that term is defined in the United States Copyright Act (17 U.S.C., Section 101), and are therefore owned by the Company from the time of creation.

(b) The Executive agrees to assign, transfer, and set over, and the Executive does hereby assign, transfer, and set over to the Company, all of his right, title and interest in and to all Work Product, without the necessity of any further compensation, and agrees that the Company is entitled to obtain and hold in its own name all patents, copyrights, and other rights in respect of all Work Product. The Executive agrees to (i) cooperate with the Company during and after his employment with the Company in obtaining patents or copyrights or other intellectual-property protection for all Work Product; (ii) execute, acknowledge, seal and deliver all documents tendered by the Company to evidence its ownership thereof throughout the world; and (iii) cooperate with the Company in obtaining, defending and enforcing its rights therein.

(c) The Executive represents that there are no other contracts to assign inventions or other intellectual property that are now in existence between the Executive and any other Person. The Executive further represents that he has no other employment or undertakings that might restrict or impair his performance of this Agreement. The Executive will not in connection with his employment by the Company, use or disclose to the Company any confidential, trade secret, or other proprietary information of any previous employer or other Person that the Executive is not lawfully entitled to disclose.

13. POST-TERMINATION OBLIGATIONS.

Following the Term of Employment the Executive shall, upon reasonable notice, use his reasonable best efforts to assist and cooperate with the Company and its counsel by providing such information and assistance to the Company as may reasonably be required by the Company at the Company’s expense in connection with any existing or threatened claim, arbitral

 

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hearing, litigation, action or governmental or other investigation involving the conduct of business of the Company or its Affiliates not commenced by or involving the Executive. The Executive’s obligation to cooperate shall be reasonably limited so as not to unreasonably interfere with his other business obligations, and shall not exceed one hundred (100) hours.

14. ARBITRATION.

(a) Any dispute, claim or controversy arising under or in connection with this Agreement or the Executive’s employment hereunder or the termination thereof, other than injunctive relief under Section 11 hereof, shall be settled exclusively by arbitration administered by the American Arbitration Association (the “ AAA ”) and carried out in the Commonwealth of Massachusetts. The arbitration shall be conducted in accordance with the AAA rules governing commercial arbitration in effect at the time of the arbitration, except as modified herein. There shall be one arbitrator, mutually selected by the Company and the Executive from a list of arbitrators provided by the AAA within thirty (30) days of receipt by respondent of the demand for arbitration. If the Company and Executive cannot mutually agree on an arbitrator within thirty (30) days, then the parties shall request that the AAA appoint the arbitrator and the arbitrator shall be appointed by the AAA within fifteen (15) days of receiving such request.

(b) The arbitration shall commence within forty-five (45) days after the appointment of the arbitrator; the arbitration shall be completed within sixty (60) days of commencement; and the arbitrator’s award shall be made within thirty (30) days following such completion. The parties may agree to extend the time limits specified in the foregoing sentence.

(c) The arbitrator may award any form of relief permitted under this Agreement and applicable law, including damages and temporary or permanent injunctive relief, except that the arbitral tribunal is not empowered to award damages in excess of compensatory damages, and each party hereby irrevocably waives any right to recover punitive, exemplary or similar damages with respect to any dispute. The arbitrator may award attorney’s fees. The award shall be in writing and shall state the reasons for the award.

(d) The decision rendered by the arbitral tribunal shall be final and binding on the parties to this Agreement. Judgment may be entered in any court of competent jurisdiction. The parties hereto waive, to the fullest extent permitted by law, any rights to appeal to, or to seek review of such award by, any court. The parties hereto further agree to obtain the arbitral tribunal’s agreement to preserve the confidentiality of the arbitration.

15. LEGAL FEES AND INDEMNIFICATION.

(a) Except as specifically provided in Section 14(c), each Party shall bear the cost of any legal fees and other fees and expenses which may be incurred in connection with the negotiation of, and enforcing its respective rights under, this Agreement.

(b) During the Term of Employment and for so long as there exists liability thereafter with regard to the Executive’s activities during the Term of Employment on behalf of the Company, the Company shall indemnify the Executive to the fullest extent permitted by applicable law (and in no event in connection with the Executive’s gross negligence or willful misconduct), and shall at the Company’s election provide the Executive with legal representation

 

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or shall advance to the Executive reasonable attorneys’ fees and expenses as such fees and expenses are incurred (subject to an undertaking from the Executive to repay such advances if it shall be finally determined by a judicial decision which is not subject to further appeal that the Executive was not entitled to the reimbursement of such fees and expenses).

(c) During the Term of Employment and for six years thereafter, the Executive shall be entitled to the same directors’ and officers’ liability insurance coverage that the Company provides generally to its other directors and officers, as may be amended from time to time for such directors and officers.

16. ASSIGNABILITY; BINDING NATURE.

This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs (in the case of the Executive) and assigns. Rights or obligations of the Company under this Agreement may be, and may only be, assigned or transferred by the Company pursuant to a merger or consolidation in which the Company is the continuing entity, or the sale or liquidation of all or substantially all of the assets of the Company, provided that the assignee or transferee is the successor to all or substantially all of the assets of the Company and such assignee or transferee assumes the liabilities, obligations and duties of the Company, as contained in this Agreement, either contractually or as a matter of law. No rights or obligations of the Executive under this Agreement may be assigned or transferred by the Executive other than his rights to compensation and benefits, which may be transferred only by will or operation of law, provided that any amount due hereunder to the Executive at the time of his death shall instead be paid to his estate or his designated beneficiary.

17. AMENDMENT OR WAIVER.

No provision in this Agreement may be amended unless such amendment is agreed to in writing and signed by the Executive and an authorized officer of the Company. No waiver by either Party of any breach by the other Party of any condition or provision contained in this Agreement to be performed by such other Party shall be deemed a waiver of a similar or dissimilar condition or provision at the same or any prior or subsequent time. Any waiver must be in writing and signed by the Executive or an authorized officer of the Company, as the case may be.

18. SECTION 409A.

(a) It is the Parties’ intent that all payments pursuant to this Agreement be exempt from, or compliant with, Section 409A of the Code (“ Section 409A ”) and that this Agreement be interpreted acccordingly.

(b) The following rules shall apply with respect to distribution of the payments, if any, to be provided to the Executive under the Agreement, as applicable:

(i) It is intended that each installment of the payments under the Agreement shall be treated as a separate “payment” for purposes of Section 409A. Neither the Company nor the Executive shall have the right to accelerate or defer the delivery of any such payments except to the extent specifically permitted or required by Section 409A.

 

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(ii) If, as of the date of the Executive’s “separation from service” from the Company, the Executive is not a “specified employee” (within the meaning of Section 409A), then each installment of the payments shall be made on the dates and terms otherwise set forth in this Agreement with respect to such payments.

(iii) If, as of the date of the Executive’s “separation from service” from the Company, the Executive is a “specified employee” (within the meaning of Section 409A), then:

(A) Each payment due under the Agreement that, in accordance with the dates and terms set forth herein, will in all circumstances, be paid within the short-term deferral period (as defined under Section 409A) shall be treated as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent permissible under Section 409A and shall be paid on the dates and terms otherwise set forth in the Agreement with respect to such payments; and

(B) Each payment due under the Agreement that is not described in Section 18(b)(iii)(A) and that would, absent this subsection, be paid within the six-month period following the Executive’s “separation from service” from the Company and on account of the Executive’s “separation from service” shall not be paid until the date that is six months and one day after such separation from service (or, if earlier, the Executive’s death), with any such payments that are required to be delayed being accumulated during the six-month period and paid in a lump sum on the date that is six months and one day following the Executive’s separation from service and any subsequent payments, if any, being paid in accordance with the dates and terms otherwise set forth herein; provided, however, that the preceding provisions of this sentence shall not apply to any payment if and to the maximum extent that that such payment is deemed to be paid under a separation pay plan that does not provide for a deferral of compensation by reason of the application of Treasury Regulation 1.409A-1(b)(9)(iii) (relating to separation pay upon an involuntary separation from service). Any payment that qualifies for the exception under Treasury Regulation Section 1.409A-1(b)(9)(iii) must be paid no later than the last day of the Executive’s second taxable year following the taxable year in which the separation from service occurs.

(c) Subject to this Section 18, any payments that may be due under the Agreement on account of termination of employment shall begin only upon the date of the Executive’s “separation from service” (determined as set forth below) which occurs on or after the termination of the Executive’s employment. The determination of whether and when the Executive’s separation from service from the Company has occurred shall be made and in a

 

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manner consistent with, and based on the presumptions set forth in, Treasury Regulation Section 1.409A-1(h). Solely for purposes of this Section 18(c), “Company” shall include all persons with whom the Company would be considered a single employer under Section 414(b) and 414(c) of the Code.

(d) All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A to the extent that such reimbursements or in-kind benefits are subject to Section 409A, including, where applicable, the requirements that (i) any reimbursement is for expenses incurred during the Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement is not subject to set off or liquidation or exchange for any other benefit.

(e) The Company makes no representation or warranty and shall have no liability to the Executive or to any other Person if any of the provisions of the Agreement are determined to constitute deferred compensation subject to Section 409A but that do not satisfy an exemption from, or the conditions of, that section.

19. SEVERABILITY.

In the event that any provision or portion of this Agreement shall be determined to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by law so as to achieve the purposes of this Agreement.

20. SURVIVORSHIP.

The respective rights and obligations of the Parties hereunder shall survive any termination of this Agreement to the extent necessary to achieve the intended preservation of such rights and obligations. In particular, the provisions of Sections 10, 11, 12 and 13 shall remain in effect as long as is necessary to give effect thereto.

21. REFERENCES.

In the event of the Executive’s death or a judicial determination of his incompetence, reference in this Agreement to the Executive shall be deemed, where appropriate, to refer to his beneficiary, estate or other legal representative.

22. GOVERNING LAW.

This Agreement shall be governed in accordance with the laws of the Commonwealth of Massachusetts without reference to its principles of conflict of laws.

 

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23. WITHHOLDING.

The Company shall be entitled to withhold from any payment to the Executive any amount of tax withholding required by applicable law at the times dictated by applicable law.

24. HEADINGS.

The headings of the sections contained in this Agreement are for convenience only and shall not be deemed to control or affect the meaning or construction of any provision of this Agreement.

25. NOTICES.

All notices and other communications required or permitted hereunder shall be in writing and shall be deemed given when (a) delivered personally, (b) delivered by certified or registered mail, postage prepaid, return receipt requested or (c) delivered by overnight courier (provided that a written acknowledgment of receipt is obtained by the overnight courier) to the Party concerned at the address indicated below or to such changed address as such Party may subsequently give such notice of:

If to the Company :

Endurance International Group Holdings, Inc.

10 Corporate Drive

Suite 300

Burlington, MA 01803

Attention: General Counsel

If to the Executive , to the most recent address shown on the records of the Company.

26. ENTIRE AGREEMENT.

This Agreement contains the entire understanding and agreement between the Parties concerning the subject matter hereof and supersedes in all respects any prior agreements, understandings, discussions, negotiations and undertakings, whether written or oral, between the Parties with respect thereto. Under no circumstances shall the Executive be entitled to any other payments or benefits of any kind, except for the payments and benefits described or referred to herein, unless otherwise agreed to the Company and the Executive in writing.

27. COUNTERPARTS.

This Agreement may be executed in two or more counterparts, each of which will be deemed an original.

 

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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.

 

ENDURANCE INTERNATIONAL GROUP HOLDINGS, INC.
By:   /s/ David C. Bryson
Name: David C. Bryson
Title: Chief Legal Officer

 

EXECUTIVE:
/s/ Ronald LaSalvia
Ronald LaSalvia

[Signature Page for Employment Agreement]


Schedule I

Existing Board of Directors


EXHIBIT A

Form of Release

[ The language in this Release may change, in the discretion of the Company, based on legal developments and evolving best practices; this form is provided as an example of what will be included in the final Release document. ]

SEPARATION AND RELEASE AGREEMENT

1. I, (Insert Name) , hereby acknowledge that my employment by Endurance International Group (the “Company”) has ended as of (Insert Date) , (the “Termination Date”). I further acknowledge that I have already received all compensation of any type whatsoever to which I am entitled through my Termination Date from the Company or from any other “Released Party” (as that term is defined in Paragraph 4 below), including, without limitation, all wages, overtime, bonuses, commissions, and accrued but unused vacation pay.

2. Severance Benefit . In exchange for the Company’s receipt of this Release, signed by me, and provided I do not revoke this Release in the manner specified in Paragraph 14 herein within seven (7) days after signing it, the Company will provide to me by mail the following severance benefit (the “Severance Benefit”) following my execution and return of this Release and the ending of the revocation period: (Insert Dollar Amount) which is an amount equal to (Insert Equivalent) of my current base salary, subject to tax withholding, customary deductions and other deductions required by law. I agree and acknowledge that this Severance Benefit constitutes a payment or benefit to which I would not be entitled if I did not sign this Release. I understand that information will be provided to me about my right to continue health benefits through the Company at my expense through the federal law known as COBRA.

3. Release of Claims . In consideration of the Severance Benefit, I, on behalf of myself, my heirs, assigns, legal representatives, successors in interest, and any person claiming through me or any of them, hereby completely release and forever discharge all “Released Parties” (as that term is defined in paragraph 4 below) from any and all claims, demands or liabilities whatsoever, based on any act or omission occurring before my signing of this Release, including, without limitation, any claims, demands or liabilities arising out of my employment with any Released Party or the ending of such employment. The matters released include, but are not limited to, any claim arising under: Title VII of the Civil Rights Act of 1964; the Federal Civil Rights Act of 1991; the Worker Adjustment and Retraining Notification Act of 1988; the Americans with Disabilities Act of 1990; the Federal Family and Medical Leave Act of 1993; the Equal Pay Act; the Ralph Civil Rights Act; the Employee Retirement Income Security Act of 1974; the Age Discrimination in Employment Act; the Older Workers’ Benefit Protection Act; the Massachusetts General Laws; the Massachusetts Fair Employment Practice Act; the Massachusetts Wage Act; any federal, state or local law, regulation or ordinance regulating wages, hours and working conditions; any action based on any alleged breach of contract, breach of the covenant of good faith and fair dealing, fraud, fraudulent inducement or any other tort; any violation of public policy or statutory or constitutional rights; any claim for severance pay, bonus or similar benefit, sick leave, pension, retirement, vacation pay, holiday pay, stock options, car allowance, life insurance, health or medical insurance, or any other fringe benefit; any claim for


reimbursement of health or medical costs; and any claim for disability. Notwithstanding anything in this release to the contrary, this release shall not effect a release of any claim I may have for post-termination rights or benefits under my employment agreement and any claim for indemnification from the Company under my employment agreement or otherwise.

4. “ Released Parties” Defined . For purposes of this Release, the term “Released Parties” means the Company, and each of its respective parents, subsidiaries and affiliates, and all of the current and former employees, officers, directors, trustees, agents, representatives, shareholders, attorneys, accountants, partners, insurers, advisors, partnerships, joint venturers, successors and assigns, employee benefit programs (and the trustees, administrators, fiduciaries and insurers of such programs) of any of them, in their individual and official capacities, and the respective heirs and personal representatives of any of them, and any other persons acting by, through, under or in concert with any of them.

5. Release of Unknown Claims . I understand and agree that this Release extinguishes all claims I have ever had or now have against any Released Party, whether such claim is currently known or unknown, vested or contingent, foreseen or unforeseen. I understand that if any fact concerning any matter covered by this Release is found hereafter to be other than or different from the facts I now believe to be true, I expressly accept and assume that this Release shall be and remain effective, notwithstanding such difference in the facts.

6. No Claims . I agree that I will not file, nor encourage or knowingly permit another to file, any claim, charge, action, or complaint (collectively “Claim”) concerning any matter released herein. If I have previously filed any such Claim, I agree to take all steps necessary to cause it to be withdrawn without delay; provided, however, that nothing in this Release prevents me from filing a Claim with, cooperating with, or participating in any proceeding before the Equal Employment Opportunity Commission or a state fair employment practices agency (except that I acknowledge that I may not recover any monetary benefits in connection with any such Claim, and I agree that if any such Claim is filed on my behalf, I shall take all reasonable steps necessary to refuse any damages or individualized relief in connection therewith); and further provided that nothing in this Release shall limit or restrict my right to (a) challenge the validity of this Release under the ADEA, or (b) prosecute any ADEA claim if such claim arises after I sign this Release, and no such action on my part shall be deemed to violate this provision or any other provision of this Release.

7. Release Confidential . I represent and agree that I will keep the terms of this Release, including the amount of the Severance Benefit, completely confidential, and that I will not disclose such information to anyone, except as follows: (a) to my immediate family and professional representatives (provided they agree to be bound by this confidentiality provision); (b) to any governmental taxing authority; and (c) in response to subpoena or other legal process, provided that before making such disclosure, I shall give the Company as much prior notice thereof as practical to enable the Company to seek, at its sole discretion, an appropriate order preventing such disclosure.

8. Continuing Obligations . I acknowledge and reaffirm my obligation to keep confidential and not to use or disclose any and all non-public information concerning the Company that I acquired during the course of my employment with the Company, including, but not limited to, any non-public information concerning the Company’s business affairs, business


prospects, and financial condition. I further acknowledge and reaffirm my confidentiality obligations set forth in the Non-Disclosure Agreement and my continuing obligations with respect to non-competition, non-solicitation, non-disparagement, and Company work product set forth in Sections 11 and 12 of my Employment Agreement, all of which remain in full force and effect.

9. Company Affiliation . I agree that, following the Termination Date, I will not hold myself out as an officer, employee, or otherwise as a representative of the Company, and I agree to update any directory information that indicates I am currently affiliated with the Company. Without limiting the foregoing, I confirm that, within five (5) days following the Termination Date, I will update any and all social media accounts (including, without limitation, LinkedIn, Facebook, Twitter and Four Square) to reflect that I am no longer employed by or associated with the Company.

10. Return of Company Property . I confirm that I have returned to the Company all keys, files, records (and copies thereof), equipment (including, but not limited to, computer hardware, software and printers, flash drives and storage devices, wireless handheld devices, cellular phones, smartphones, tablets, etc.), Company identification, and any other Company-owned property in my possession or control and have left intact all electronic Company documents, including but not limited to those that I developed or helped to develop during my employment. I further confirm that I have cancelled all accounts for my benefit, if any, in the Company’s name, including but not limited to, credit cards, telephone charge cards, cellular phone accounts, and computer accounts.

11. Entire Agreement . This Release constitutes the entire agreement between the Company and me as to any matter referred to in this Release. This Release supersedes all other agreements between the Company and me. In executing this Release, I am not relying upon any agreement, representation, written or oral statement, understanding, omission, or course of conduct that is not expressly set forth in this Release.

12. Governing Law; Arbitration . This Release shall be governed by and enforced in accordance with the laws of the State of Massachusetts, without regard to its conflicts of law principles. I acknowledge that I previously agreed, pursuant to Section 14 of my Employment Agreement, to arbitrate any claim relating to or arising out of my employment with the Company, and I acknowledge and affirm that such provision survives my termination from employment with the Company. For clarification, but not limitation, I further acknowledge and agree that any controversy or claim arising out of or in any way relating to this Release or the breach thereof shall also be settled by final and binding arbitration, consistent with the terms, procedures, and exceptions set forth in Section 14 of the Employment Agreement. I understand and agree that this arbitration provision shall not apply to claims brought in a court of competent jurisdiction by either me or any Released Party to compel arbitration under this provision, to enforce an arbitration award or to obtain preliminary injunctive and/or other equitable relief in support of claims that may be prosecuted in an arbitration by me or any Released Party.

13. Successors and Assigns . This Release will bind and inure to the benefit of the successors, assigns, heirs and personal representatives of the Released Parties and me.


14. Review Period . I acknowledge that prior to signing this Release, I have been advised to consult with an attorney of my choice to review the Release, and have taken such opportunity to the extent I wish to do so. I further acknowledge that the Company has given me at least twenty-one (21) days to decide whether I wish to execute this Release.

15. Revocation . I understand that I may revoke this Release at any time during the seven (7) days after I sign it (the “Last Revocation Day”), and that the Release shall not become effective until the end of that revocation period. I understand and agree that by executing, timely returning, and not revoking this Release, I am waiving any and all rights or claims I might have under the Age Discrimination in Employment Act, as amended by the Older Workers Benefit Protection Act, and that I have received consideration beyond that to which I was previously entitled. In the event I choose to revoke the Release, such revocation must be by means of a writing signed by me and delivered within the seven (7) day revocation period as follows: via facsimile or hand-delivery to Pam Clark at Endurance International Group., 10 Corporate Drive #300, Burlington, Massachusetts 01803 or by facsimile number (602) 258-0588. If I revoke this Release via facsimile, I agree that my facsimile signature will be valid and binding for all purposes.

16. Modification in Writing . No provision of this Release may be modified, amended or waived except by a writing signed by me and an authorized representative of the Company.

17. No Admission of Liability . This Release shall not at any time or for any purpose be deemed an admission of liability of any kind by any Released Party. This Release may not be used or introduced as evidence in any legal proceeding, except to enforce or challenge its terms.

18. Headings . The headings, titles and captions contained in this Release are inserted only for the convenience of the parties and for reference, and in no way define, limit, extend or describe the scope of this Release or the intent of any provision hereof.

19. Severability . If any provision of this Release shall, for any reason, be held by a court or other tribunal of competent jurisdiction to be invalid, void or unenforceable, in whole or in part, such adjudication shall in no way affect any other provisions of this Release or the validity or enforcement of the remainder of this Release, and any provision thus affected shall itself be modified only to the extent necessary to bring the provision within the applicable requirements of the law.

20. Timely Execution . To receive the Severance Benefit, I must sign this Release on or after my Last Day Worked, and return it to the Company within twenty-one (21) days of my Last Day Worked, as follows: hand delivery or first-class mail to Pam Clark at Endurance International Group., 10 Corporate Drive #200, Massachusetts 01803 or by facsimile number (602) 258-0588.

 

Sincerely,

 

The Endurance International Group, Inc.

By:    
Its:    


EMPLOYEE’S ACCEPTANCE OF RELEASE

I have read this Release and I understand all of its terms. I acknowledge and agree that this Release is executed voluntarily, without coercion, and with full knowledge of its significance. I further acknowledge that I have been given twenty-one (21) days during which to decide whether to execute this Release, and have used that time to the extent I wish to do so. I understand that my execution of this Release constitutes a full, unconditional general release of any and all known or unknown claims that I may have against any Released Party, despite the fact that I may become aware of claims in the future which I did not consider prior to signing this Release.

 

Date:            
        (Insert Employee Name)
       

Exhibit 10.8

EMPLOYMENT AGREEMENT

EMPLOYMENT AGREEMENT (the “ Agreement ”), made and entered into as of March 7, 2016 by and between Endurance International Group Holdings, Inc., a Delaware corporation (together with its successors and assigns permitted under this Agreement, the “ Company ”) and Katherine Andreasen (the “ Executive ”).

W I T N E S S E T H:

WHEREAS, the Company desires to continue to employ the Executive as its Chief Administrative Officer as of and following the Effective Date (as defined below) and desires to memorialize the terms and conditions of such employment in this Agreement;

NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and for other good and valuable consideration, the receipt of which is mutually acknowledged, the Parties agree as follows:

1. DEFINITIONS. As used in this Agreement, capitalized terms shall have the meanings set forth in this Agreement. The following capitalized terms shall have the following meanings:

(a) “ Affiliate ” of a Person shall mean a Person that directly or indirectly Controls, is Controlled by, or is under common Control with the Person specified.

(b) “ Annual Bonus ” shall mean the annual cash bonus, if any, payable to the Executive in respect of any given calendar year pursuant to Section 5 of this Agreement.

(c) “ Base Salary ” shall mean the annual rate of base salary provided for in Section 4 below or any increased annual rate of base salary granted to the Executive pursuant to Section 4 of this Agreement.

(d) “ Board ” shall mean the Board of Directors of the Company.

(e) “ Cause ” shall mean:

(i) a continued failure of the Executive to perform his duties and responsibilities (other than as a result of physical or mental illness or injury) after receipt of written notice from the Board of such failure, provided that the Executive shall have 30 calendar days after the date of receipt of such notice in which to cure such failure (to the extent cure is possible);

(ii) the Executive’s willful misconduct or gross negligence which is materially injurious to the Company or any of its Affiliates (whether financially, reputationally or otherwise);

(iii) a breach by the Executive of his fiduciary duty or duty of loyalty to the Company or its Affiliates which is materially injurious to the Company or any of its Affiliates (whether financially, reputationally or otherwise);

 

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(iv) the indictment of the Executive for any felony or other serious crime involving moral turpitude; or

(v) the Executive’s (A) breach of any restrictive covenant regarding competition or solicitation or (B) material breach of any other restrictive covenant (including, without limitation, non-disclosure of confidential information), in each case to which he is subject pursuant to this Agreement or any other agreement with the Company or any of its Affiliates (the “ Restrictive Covenants ”); provided that, in the case of a breach described in clause (v)(B) above, the Board shall provide the Executive with written notice of such breach and the Executive shall have 30 calendar days after the date of receipt of such notice in which to cure such failure (to the extent cure is possible).

If, within the three-month period immediately following the Termination Date, it is discovered that the Executive engaged in conduct which could have resulted in the Executive’s employment with the Company being terminated for Cause, as such term is defined above, the Participant’s employment shall, at the election of the Board, in its sole discretion, be deemed to have been terminated for Cause retroactively to the date the events giving rise to Cause occurred.

(f) A “ Change in Control ” shall mean the occurrence of one or more of the following events:

(i) the acquisition by an individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, and amended (the “ Exchange Act ”)) (a “ 13D Person ”) of beneficial ownership of any capital stock of the Company if, after such acquisition, such 13D Person beneficially owns (within the meaning of Rule 13d-3 under the Exchange Act) 50% or more of either (x) the then-outstanding shares of common stock of the Company (the “ Outstanding Company Common Stock ”) or (y) the combined voting power of the then-outstanding securities of the Company entitled to vote generally in the election of directors (the “ Outstanding Company Voting Securities ”); provided , however, that for purposes of this subsection (i), the following acquisitions shall not constitute a Change in Control: (I) any acquisition directly from the Company (excluding an acquisition pursuant to the exercise, conversion or exchange of any security exercisable for, convertible into or exchangeable for common stock or voting securities of the Company, unless the 13D Person exercising, converting or exchanging such security acquired such security directly from the Company or an underwriter or agent of the Company) or (II) any acquisition by any corporation pursuant to a Business Combination (as defined below) which complies with clauses (x) and (y) of subsection (iii) of this definition; or

(ii) a change in the composition of the Board that results in the Continuing Directors (as defined below) no longer constituting a majority of the Board (or, if applicable, the Board of Directors of a successor corporation to the Company), where the term “ Continuing Director ” means at any date a member of the Board (x) who was a member of the Board on the date of the initial adoption of this Agreement by the Board or (y) who was nominated or elected subsequent to such date by at least a majority of the directors who were Continuing Directors at the time of such nomination or election or whose election to the Board was recommended or endorsed by at least a majority of the directors who were Continuing

 

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Directors at the time of such nomination or election; provided , however, that there shall be excluded from this clause (y) any individual whose initial assumption of office occurred as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents, by or on behalf of a person other than the Board; or

(iii) the consummation of a merger, consolidation, reorganization, recapitalization or share exchange involving the Company or a sale or other disposition of all or substantially all of the assets of the Company (a “ Business Combination ”), unless, immediately following such Business Combination, each of the following two conditions is satisfied: (x) all or substantially all of the individuals and entities who were the beneficial owners of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then-outstanding shares of common stock and the combined voting power of the then-outstanding securities entitled to vote generally in the election of directors, respectively, of the resulting or acquiring corporation in such Business Combination (which shall include, without limitation, a corporation which as a result of such transaction owns the Company or substantially all of the Company’s assets either directly or through one or more subsidiaries) (such resulting or acquiring corporation is referred to herein as the “ Acquiring Corporation ”) in substantially the same proportions as their ownership of the Outstanding Company Common Stock and Outstanding Company Voting Securities, respectively, immediately prior to such Business Combination and (y) no 13D Person (excluding any employee benefit plan (or related trust) maintained or sponsored by the Company or by the Acquiring Corporation) beneficially owns, directly or indirectly, 50% or more of the then-outstanding shares of common stock of the Acquiring Corporation, or of the combined voting power of the then-outstanding securities of such corporation entitled to vote generally in the election of directors (except to the extent that such ownership existed prior to the Business Combination); or

(iv) the liquidation or dissolution of the Company;

provided, however, that to the extent required with respect to any payment hereunder that is subject to Section 409A of the Code, the Change in Control must be a “change in control event” within the meaning of Treasury Regulation Section 1.409A-3(i)(5)(i).

(g) “ Change in Control Period ” shall mean the period beginning on the date on which a Change in Control is consummated and ending on the one-year anniversary thereof.

(h) “ COBRA ” shall mean the Consolidated Omnibus Budget Reconciliation Act.

(i) “ Code ” shall mean the Internal Revenue Code of 1986, as amended, and all rules and regulations promulgated thereunder.

(j) “ Company Employee ” shall mean an employee, director or independent contractor of or for the Company or any of its Affiliates (to the extent such Affiliate is engaged in a Competing Business).

 

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(k) “ Competing Business ” shall mean any business engaged in a line of business in which the Company or its subsidiaries (i) is engaged as of the Termination Date, (ii) has memorialized plans (electronically or otherwise) to become engaged within the six-month period immediately following the Termination Date or (iii) has plans of which the Executive knows (or of which there is a reasonable expectation that the Executive should have known) to become engaged within the six-month period immediately following the Termination Date.

(l) “ Control ” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

(m) “ Effective Date ” shall mean the date specified in Section 2 below.

(n) “ Person ” shall mean an individual, partnership, corporation, limited liability company, unincorporated organization, trust or joint venture, or a governmental agency or political subdivision thereof.

(o) “ Restricted Period ” shall mean the period beginning on the Termination Date and ending eighteen months after the Termination Date.

(p) “ Stock Incentive Plan ” shall mean the Endurance International Group Holdings, Inc. 2013 Stock Incentive Plan (or its successor).

(q) “ Termination Date ” shall mean the date specified in Section 9(b).

(r) “ Term of Employment ” shall mean the period specified in Section 2 below (including any extension as provided therein).

(s) “ Work Product ” shall mean all ideas, works of authorship, inventions and other creations, whether or not patentable, copyrightable, or subject to other intellectual-property protection, that are made, conceived, developed or worked on in whole or in part by the Executive while employed by the Company and/or any of its Affiliates, that relate in any manner whatsoever to the business, existing or proposed, of the Company and/or any of its Affiliates, or any other business or research or development effort in which the Company and/or any of its Affiliates engages during the Term of Employment.

2. TERM OF EMPLOYMENT.

The Term of Employment shall begin on February 22, 2016 (the “ Effective Date ”). Subject to the terms hereof, the Term of Employment shall extend until the second anniversary of the Effective Date. Commencing on the second anniversary of the Effective Date and on each anniversary thereafter, the Term of Employment shall be renewed automatically for succeeding terms of (1) year, unless either Party gives written notice to the other Party at least ninety (90) days prior to the expiration of the then-current term of the intention not to renew (a “ Non-Renewal Notice ”). If a Non-Renewal Notice is provided by either Party, then the Executive’s employment with the Company shall cease as of the end of the then-current Term of Employment. Notwithstanding the foregoing, the Term of Employment may be earlier terminated by either Party in accordance with the provisions of Section 8, 9, and 10 of this Agreement, and in such event the Term of Employment shall end on the Termination Date.

 

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3. POSITION, DUTIES AND RESPONSIBILITIES.

(a) During the Term of Employment, the Executive shall be employed as the Chief Administrative Officer of the Company and shall have such duties, responsibilities and authority as shall be reasonably determined from time to time by the Chief Executive Officer of the Company (the “ CEO ”). Further, the Executive shall (i) serve on such boards of directors of subsidiaries of the Company and/or (ii) hold such corporate officer titles and positions of the Company and any of its subsidiaries, as may be requested by the CEO in his sole discretion, in any such case without additional compensation therefor. The Executive, in carrying out his duties under this Agreement, shall report directly to the CEO. During the Term of Employment, subject to Section 3(b) and except for permitted vacation periods and reasonable periods of illness, the Executive shall devote substantially all of his business time and attention to the performance of his duties hereunder and shall use his reasonable best efforts, skills and abilities to promote the Company’s interests.

(b) Nothing herein shall preclude the Executive from (i) continuing to serve as a director and advisor on the board of directors of the corporations and entities set forth on Schedule I hereto, (ii) serving on up to one other board of directors (or advisory committee) of a corporation or entity with the prior express written consent of the Board (which consent will not be unreasonably withheld), (iii) serving on the boards of a reasonable number of trade associations and civic or charitable organizations and (iv) managing personal investments, so long as such activities set forth in this Section 3(b) do not conflict or materially interfere with the effective discharge of his duties and responsibilities under Section 3(a) above.

4. BASE SALARY.

During the Term of Employment, the Executive shall be paid an annualized gross Base Salary, payable in accordance with the regular payroll practices of the Company, of $350,000. The Base Salary shall be reviewed annually for increase (but not decrease) in the sole discretion of the Board.

5. ANNUAL BONUS OPPORTUNITY.

During the Term of Employment, the Executive shall be eligible to earn an Annual Bonus pursuant to the terms and conditions of any annual Management Incentive Plan adopted by the Company in respect of each full fiscal year occurring during the Term of Employment, subject to the Executive’s continued employment through the date on which payments are made under the applicable Management Incentive Plan. The target amount of the Annual Bonus (the “ Target Annual Bonus Opportunity ”) shall be 50% of the Executive’s Base Salary.

 

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6. EMPLOYEE BENEFIT PROGRAMS.

During the Term of Employment, the Executive shall be entitled to participate in any employee retirement, welfare and fringe benefit plans and programs made available to the Company’s senior executive officer level employees generally, as such plans or programs may be in effect from time to time. The Company shall pay the expenses associated with the Executive’s participation in such benefit plans to the same extent the Company pays the expenses associated with the participation by other similarly situated senior executive officer level employees of the Company.

7. REIMBURSEMENT OF BUSINESS AND OTHER EXPENSES; PERQUISITES; VACATIONS.

(a) Business Expenses . The Executive is authorized to incur reasonable expenses in carrying out his duties and responsibilities under this Agreement and the Company shall promptly reimburse him for all reasonable business expenses incurred in connection with the performance of his duties hereunder, subject to the Executive’s provision of reasonable documentation of such expenses in accordance with the Company’s business expense reimbursement policy as may be in effect from time to time.

(b) Perquisites . During the Term of Employment, the Executive shall be entitled to any perquisites that are generally offered to other senior executive officers of the Company, on terms and conditions as determined by the Company from time to time.

(c) Vacation . Consistent with Company’s policy for executive employees, the Executive will not accrue paid vacation.

8. TERMINATION OF EMPLOYMENT.

(a) Death . The Executive shall terminate employment with the Company, and the Term of Employment shall terminate, upon the Executive’s death.

(b) Disability . The Company shall be entitled to terminate the Executive’s employment for Disability if the Executive has experienced a permanent disability as defined in the Company’s long-term disability plans (a “ Disability ”). The termination of the Executive’s employment by the Company for Disability shall not be considered a termination without Cause for purposes of this Agreement.

(c) For or Without Cause or Voluntarily (Other Than for Good Reason) . The Company may terminate the Executive’s employment for Cause or without Cause. The Executive may voluntarily terminate his employment, other than for Good Reason (“ Voluntary Resignation ”), provided that the Executive provides the Company with notice of his intent to terminate his employment at least thirty (30) days in advance of the Termination Date.

(d) Good Reason . The Executive may terminate his employment with the Company for Good Reason. For purposes of this Agreement, “ Good Reason ” shall mean, in connection with the Executive’s termination of employment, the occurrence of any of the following events without his consent:

(i) a material diminution in the Executive’s duties and responsibilities other than a change in the Executive’s duties and responsibilities that results from becoming part of a larger organization following a Change in Control;

 

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(ii) the Company’s material breach of this Agreement, including the failure to timely pay Base Salary or any other amounts due under this Agreement; or

(iii) a relocation of the Executive’s primary work location after the Effective Date such that his daily commute is increased by more than 40 miles;

provided that, within 30 days following the occurrence of any of the events set forth in clauses (i), (ii) or (iii), the Executive shall have delivered written notice to the Company of his intention to terminate his employment for Good Reason, which notice specifies in reasonable detail the circumstances claimed to give rise to the Executive’s right to terminate employment for Good Reason, and the Company shall not have cured such circumstances within 30 days following the Company’s receipt of such notice.

9. PROCEDURE FOR TERMINATION OF EMPLOYMENT.

(a) Notice of Termination of Employment . Any termination of the Executive’s employment with the Company (other than a termination of employment on account of the death of the Executive) shall be communicated by written “ Notice of Termination ” to the other party hereto in accordance with Section 25 hereof.

(b) Termination Date . The Termination Date shall mean: (i) if the Executive’s termination of employment occurs due to the Executive’s death, the date of the Executive’s death; (ii) if the Executive’s termination of employment occurs due to the Executive’s Disability, the date on which the Executive receives a Notice of Termination from the Company; (iii) if the Executive’s termination of employment occurs due to the Executive’s Voluntary Resignation, the date specified in the notice given pursuant to Section 8(c) hereof, which shall not be less than thirty (30) days after Company’s receipt of the Notice of Termination; (iv) if the Executive’s termination of employment occurs due to the Executive’s termination for Good Reason, the date of his termination in accordance with Section 8(d) hereof; (v) if the Executive’s termination of employment occurs pursuant to a non-renewal of the Term of Employment by either Party, the end of the then-current Term of Employment; and (vi) if the Executive’s termination of employment occurs for any other reason, the date on which a Notice of Termination is given or any later date (within thirty (30) days, or any alternative time period agreed upon by the Parties, after the giving of such Notice of Termination) set forth in such Notice of Termination. Effective as of the Termination Date, unless otherwise determined by the Board, the Executive shall be deemed to have resigned from any and all positions he then holds with the Company and its Affiliates.

10. PAYMENTS UPON TERMINATION OF EMPLOYMENT.

(a) Termination Due to Death or Disability . In the event that the Executive’s employment hereunder is terminated due to his death or Disability, the Executive (or his estate or his beneficiaries, in the event of his death), shall be entitled to receive:

(i) Payment in respect of (A) his accrued but unpaid Base Salary through the Termination Date, (B) any unpaid business expense reimbursements due to the Executive under Section 7 of this Agreement and (C) notwithstanding

 

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anything to the contrary in Section 5 of this Agreement or the applicable Management Incentive Plan, in the event that the Termination Date occurs after the end of a fiscal year, but prior to the date on which the Annual Bonus earned by the Executive with respect to such fiscal year is paid to the Executive, payment of such Annual Bonus ((A), (B) and (C) together, the “ Accrued Amounts ”). The Accrued Amounts shall be paid as soon as reasonably practicable, but no later than thirty (30) days, following the Termination Date; and

(ii) any amounts or benefits to which the Executive is then entitled under the terms of the benefit plans then-sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A of the Code).

(b) Termination by the Company for Cause, Voluntary Resignation or Termination Due to Non-Renewal . In the event the Company terminates the Executive’s employment hereunder for Cause or in the event of a Voluntary Resignation, or the Executive’s employment hereunder is terminated as a result of the delivery of a Non-Renewal Notice, the Executive shall be entitled to receive:

(i) payment of the Accrued Amounts as soon as reasonably practicable, but no later than thirty (30) days, following the Termination Date; and

(ii) any amounts or benefits to which the Executive is then entitled under the terms of the benefit plans then-sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A of the Code).

(c) Termination by the Company without Cause or by the Executive for Good Reason .

(i) In the event that the Executive’s employment hereunder is (x) terminated by the Company without Cause, other than due to Disability or death or (y) the Executive resigns for Good Reason, the Executive shall be entitled to receive:

(A) payment of the Accrued Amounts as soon as reasonably practicable, but no later than thirty (30) days, following the Termination Date;

(B) any amounts or benefits to which the Executive is then entitled under the terms of the benefit plans then-sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A of the Code); and

 

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(C) subject to (x) the Executive’s satisfaction of the Release Requirements and (y) the Executive’s continued compliance with the Restrictive Covenants:

(1) continued payment of Base Salary at the annualized rate in effect on the Termination Date for a period of:

 

  (A) if the Termination Date does not occur within the Change in Control Period, twelve (12) months following the Termination Date; or

 

  (B) if the Termination Date does occur within the Change in Control Period, eighteen (18) months following the Termination Date,

in either case payable in accordance with the Company’s usual and customary payroll practices;

(2) payment of the Target Annual Bonus Opportunity in effect on the Termination Date, payable in equal monthly installments over a period of:

 

  (A) twelve (12) months following the Termination Date if the Termination Date does not occur within the Change in Control Period; or

 

  (B) eighteen (18) months following the Termination Date if the Termination Date does occur within the Change in Control Period,

in either case payable in accordance with the Company’s usual and customary payroll practices; and

(3) provided the Executive is eligible for and timely elects to continue receiving group medical insurance under COBRA, pay (but in no event for longer than eighteen (18) months following the Executive’s Termination Date) for such COBRA coverage (the “ COBRA Amount ”); provided , however , that if the Executive becomes re-employed with another employer and becomes eligible for medical insurance coverage under a plan maintained by such employer, the Executive shall be obligated to provide the Company with written notice of his new employment within five (5) business days of obtaining such new employment and the reimbursement by the Company of the COBRA Amount shall cease and the Company shall have no further obligation in connection therewith; and provided , further , that if the Company’s provision of the COBRA Amount will violate the nondiscrimination requirements of applicable law, this benefit will not apply.

 

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(ii) Payments to be made under Section 10(c)(i)(C) (the “ Severance Payments ”) shall be provided or shall commence on the 60 th day after the Termination Date (the “ Release Date ”), provided that, as of the 50 th day after the Termination Date, the Release Requirements are satisfied. If the Release Requirements are not satisfied as of the 50 th day after the Termination Date (and the Release has been provided to the Executive as of the Termination Date), then the Executive shall not be entitled to any payments or benefits under the foregoing subsections and the Company and its Affiliates shall have no further obligations in connection therewith. If the Release Requirements are satisfied, then the portion of the Severance Payments which would otherwise have been paid during the period between the Termination Date and the Release Date shall instead be paid as soon as reasonably practicable following the Release Date. For purposes of this Agreement, the “ Release Requirements ” shall be satisfied if, as of the applicable date, the Executive has executed a general release of claims against the Company and its Affiliates in substantially the form attached hereto as Exhibit A and the revocation period required by applicable law has expired without the Executive’s revocation of such release.

(d) No Mitigation Requirement or Offset . In the event of any termination of employment under this Section 10, the Executive shall be under no obligation to seek other employment and, except as otherwise provided in Section 10(c)(i)(C)(3), there shall be no offset against amounts due the Executive under this Agreement on account of any remuneration attributable to any subsequent employment that he may obtain.

(e) No Other Severance Benefits . Except as specifically set forth in this Agreement, the Executive covenants and agrees that the Executive shall not be entitled to any other form of severance or termination payments or benefits from the Company, including, without limitation, payments or benefits otherwise payable under any of the Company’s regular severance policies.

(f) Nature of Payments . Any amounts due under this Section 10 are in the nature of severance payments considered to be reasonable by the Company and the Executive and are not in the nature of a penalty.

11. RESTRICTIVE COVENANTS.

(a) Non-Competition .

(i) The Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its Affiliates and accordingly agrees that during the Term of Employment and the Restricted Period, the Executive will not directly or indirectly become an employee, director, or independent contractor of, or a consultant to, or perform any services for, or acquire any financial interest in, any Person engaging in a Competing Business.

(ii) Notwithstanding anything to the contrary in this Agreement, the Executive may:

(A) directly or indirectly own, solely as an investment, securities of any Person engaged in a Competing Business which are publicly traded on a national or regional stock exchange or on the over-

 

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the-counter market if the Executive (1) is not a controlling person of, or a member of a group which controls, such person and (2) does not, directly or indirectly, own one percent (1%) or more of any class of securities of such Person (excluding any interest the Executive owns through a mutual fund, private equity fund or other pooled account);

(B) provide services for a subsidiary or division of a Person that is engaged in a Competing Business as long as such subsidiary or division (1) is not itself engaged in a Competing Business and (2) does not, and the Executive does not, provide any services to the Person that is engaged in a Competing Business that relate (directly or indirectly) to such Competing Business; and

(C) continue to engage in those activities set forth in Section 3(b), provided that Executive is not engaging in such activities for a Competing Business.

(b) Non-Solicitation .

(i) During the Term of Employment and the Restricted Period, the Executive will not, whether on the Executive’s own behalf or on behalf of or in conjunction with any person, company, business entity or other organization whatsoever, solicit or hire, or attempt to solicit or hire:

(A) any customer or supplier of the Company or any of its Affiliates in connection with any business activity that then competes with the Company or such Affiliate(s) or to terminate or alter in a manner adverse to the Company or such Affiliate(s) such customer’s or supplier’s relationship with the Company or such Affiliate(s); or

(B) any Company Employee or individual who was a Company Employee within the six-month period immediately prior thereto to terminate or otherwise alter his or her employment with, and/or provision of services for, the Company or its Affiliates.

(c) Confidentiality .

(i) The Executive hereby agrees that, during the Term of Employment and thereafter, other than in the proper performance of his duties for the Company and its Affiliates, he will hold in strict confidence any proprietary information or Confidential Information related to the Company or any of its Affiliates. For purposes of this Agreement, the term “ Confidential Information ” shall mean all information of the Company or any of its Affiliates (in whatever form) which is not generally known to the public, including without limitation any inventions, processes, methods of distribution, customer lists or customers’ or trade secrets, provided that Confidential Information shall not include (A) information the Executive is required to disclose by applicable law, regulation or legal process so long as the Executive notifies the Company promptly (it being understood that

 

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“promptly” shall mean “prior to” unless prior notice is not possible, in which case “promptly” shall mean as soon as practicable following) of the Executive’s obligation to disclose Confidential Information by applicable law, regulation or legal process and cooperates with the Company to limit the extent of such disclosure, or (B) any information that is or becomes publicly known through no fault of the Executive. Notwithstanding anything to the contrary, the Executive is not prohibited from reporting possible violations of federal law or regulations to any governmental agency or entity, including but not limited to the Department of Justice, the Securities and Exchange Commission, the Congress, and any agency Inspector General, or making other disclosures that are protected under the whistleblower provisions of federal law or regulation and the Executive is not required to obtain the Company’s approval or notify the Company that the Executive intends to make or has made such a report or disclosure.

(ii) The Executive agrees that at the time of the termination of his employment with the Company, whether at the insistence of the Executive or the Company, and regardless of the reasons therefor, he will deliver to the Company, and not keep or deliver to anyone else, any and all notes, files, memoranda, papers and, in general, any and all physical and electronic matter containing Confidential Information, including any and all documents significant to the conduct of the business of the Company or any subsidiary or Affiliate of the Company which are in his possession, except for any documents for which the Company or any subsidiary or Affiliate of the Company has given written consent to removal at the time of the termination of the Executive’s employment.

(d) Non-Disparagement . The Executive agrees that he will not, any time during the Term of Employment and on or after the time of the termination of his employment with the Company for any reason, directly or indirectly, disparage (i) the Company or its Affiliates, (ii) the business, property or assets of the Company or its Affiliates, or (iii) any of the former, current or future officers, directors, employees or shareholders of the Company or its Affiliates. The Company shall use its reasonable best efforts to cause its officers and members of the Board (in their individual capacities or on behalf of the Company) not to, at any time during the Term of Employment and on or after the time of the termination of Executive’s employment with the Company for any reason, directly or indirectly, make or publish any disparaging statements or remarks about the Executive. Nothing in this Section shall be construed to limit the ability of Executive or the Company’s officers or members of the Board (in their individual capacities or on behalf of the Company) to give truthful testimony pursuant to valid legal process, including but not limited to, a subpoena, court order or a government investigative matter.

(e) Injunctive Relief; Effect of Violation on Severance Payments . It is impossible to measure in money the damages that will accrue to the Company or any of its Affiliates in the event that the Executive breaches any of the Restrictive Covenants. In the event that the Executive breaches any such Restrictive Covenant, the Company or any of its Affiliates shall be entitled to an injunction restraining the Executive from violating such Restrictive Covenant (without posting any bond). If the Company or any of its Affiliates shall institute any action or proceeding to enforce any such Restrictive Covenant, the Executive hereby waives the

 

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claim or defense that the Company or any of its Affiliates has an adequate remedy at law and agrees not to assert in any such action or proceeding the claim or defense that the Company or any of its Affiliates has an adequate remedy at law. The foregoing shall not prejudice the Company’s or any of its Affiliates’ other rights or remedies under applicable law or equity. In addition, the Company and the Executive agree that the Executive violates any Restrictive Covenant, the Company may cease payment of the Severance Payments and shall also be entitled to recoup any portion of the Severance Payments that were previously paid to the Executive.

12. WORK PRODUCT.

(a) In consideration of the Company’s promises and undertakings in this Agreement, the Executive agrees that all Work Product will be disclosed promptly by the Executive to the Company, shall be the sole and exclusive property of the Company, and is hereby assigned to the Company, regardless of whether (i) such Work Product was conceived, made, developed or worked on during regular hours of his employment or his time away from his employment, (ii) the Work Product was made at the suggestion of the Company; or (iii) the Work Product was reduced to drawing, written description, documentation, models or other tangible form. Without limiting the foregoing, the Executive acknowledges that all original works of authorship that are made by the Executive, solely or jointly with others, within the scope of his employment and that are protectable by copyright are “works made for hire,” as that term is defined in the United States Copyright Act (17 U.S.C., Section 101), and are therefore owned by the Company from the time of creation.

(b) The Executive agrees to assign, transfer, and set over, and the Executive does hereby assign, transfer, and set over to the Company, all of his right, title and interest in and to all Work Product, without the necessity of any further compensation, and agrees that the Company is entitled to obtain and hold in its own name all patents, copyrights, and other rights in respect of all Work Product. The Executive agrees to (i) cooperate with the Company during and after his employment with the Company in obtaining patents or copyrights or other intellectual-property protection for all Work Product; (ii) execute, acknowledge, seal and deliver all documents tendered by the Company to evidence its ownership thereof throughout the world; and (iii) cooperate with the Company in obtaining, defending and enforcing its rights therein.

(c) The Executive represents that there are no other contracts to assign inventions or other intellectual property that are now in existence between the Executive and any other Person. The Executive further represents that he has no other employment or undertakings that might restrict or impair his performance of this Agreement. The Executive will not in connection with his employment by the Company, use or disclose to the Company any confidential, trade secret, or other proprietary information of any previous employer or other Person that the Executive is not lawfully entitled to disclose.

13. POST-TERMINATION OBLIGATIONS.

Following the Term of Employment the Executive shall, upon reasonable notice, use his reasonable best efforts to assist and cooperate with the Company and its counsel by providing such information and assistance to the Company as may reasonably be required by the Company at the Company’s expense in connection with any existing or threatened claim, arbitral

 

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hearing, litigation, action or governmental or other investigation involving the conduct of business of the Company or its Affiliates not commenced by or involving the Executive. The Executive’s obligation to cooperate shall be reasonably limited so as not to unreasonably interfere with his other business obligations, and shall not exceed one hundred (100) hours.

14. ARBITRATION.

(a) Any dispute, claim or controversy arising under or in connection with this Agreement or the Executive’s employment hereunder or the termination thereof, other than injunctive relief under Section 11 hereof, shall be settled exclusively by arbitration administered by the American Arbitration Association (the “ AAA ”) and carried out in the Commonwealth of Massachusetts. The arbitration shall be conducted in accordance with the AAA rules governing commercial arbitration in effect at the time of the arbitration, except as modified herein. There shall be one arbitrator, mutually selected by the Company and the Executive from a list of arbitrators provided by the AAA within thirty (30) days of receipt by respondent of the demand for arbitration. If the Company and Executive cannot mutually agree on an arbitrator within thirty (30) days, then the parties shall request that the AAA appoint the arbitrator and the arbitrator shall be appointed by the AAA within fifteen (15) days of receiving such request.

(b) The arbitration shall commence within forty-five (45) days after the appointment of the arbitrator; the arbitration shall be completed within sixty (60) days of commencement; and the arbitrator’s award shall be made within thirty (30) days following such completion. The parties may agree to extend the time limits specified in the foregoing sentence.

(c) The arbitrator may award any form of relief permitted under this Agreement and applicable law, including damages and temporary or permanent injunctive relief, except that the arbitral tribunal is not empowered to award damages in excess of compensatory damages, and each party hereby irrevocably waives any right to recover punitive, exemplary or similar damages with respect to any dispute. The arbitrator may award attorney’s fees. The award shall be in writing and shall state the reasons for the award.

(d) The decision rendered by the arbitral tribunal shall be final and binding on the parties to this Agreement. Judgment may be entered in any court of competent jurisdiction. The parties hereto waive, to the fullest extent permitted by law, any rights to appeal to, or to seek review of such award by, any court. The parties hereto further agree to obtain the arbitral tribunal’s agreement to preserve the confidentiality of the arbitration.

15. LEGAL FEES AND INDEMNIFICATION.

(a) Except as specifically provided in Section 14(c), each Party shall bear the cost of any legal fees and other fees and expenses which may be incurred in connection with the negotiation of, and enforcing its respective rights under, this Agreement.

(b) During the Term of Employment and for so long as there exists liability thereafter with regard to the Executive’s activities during the Term of Employment on behalf of the Company, the Company shall indemnify the Executive to the fullest extent permitted by applicable law (and in no event in connection with the Executive’s gross negligence or willful misconduct), and shall at the Company’s election provide the Executive with legal representation

 

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or shall advance to the Executive reasonable attorneys’ fees and expenses as such fees and expenses are incurred (subject to an undertaking from the Executive to repay such advances if it shall be finally determined by a judicial decision which is not subject to further appeal that the Executive was not entitled to the reimbursement of such fees and expenses).

(c) During the Term of Employment and for six years thereafter, the Executive shall be entitled to the same directors’ and officers’ liability insurance coverage that the Company provides generally to its other directors and officers, as may be amended from time to time for such directors and officers.

16. ASSIGNABILITY; BINDING NATURE.

This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs (in the case of the Executive) and assigns. Rights or obligations of the Company under this Agreement may be, and may only be, assigned or transferred by the Company pursuant to a merger or consolidation in which the Company is the continuing entity, or the sale or liquidation of all or substantially all of the assets of the Company, provided that the assignee or transferee is the successor to all or substantially all of the assets of the Company and such assignee or transferee assumes the liabilities, obligations and duties of the Company, as contained in this Agreement, either contractually or as a matter of law. No rights or obligations of the Executive under this Agreement may be assigned or transferred by the Executive other than his rights to compensation and benefits, which may be transferred only by will or operation of law, provided that any amount due hereunder to the Executive at the time of his death shall instead be paid to his estate or his designated beneficiary.

17. AMENDMENT OR WAIVER.

No provision in this Agreement may be amended unless such amendment is agreed to in writing and signed by the Executive and an authorized officer of the Company. No waiver by either Party of any breach by the other Party of any condition or provision contained in this Agreement to be performed by such other Party shall be deemed a waiver of a similar or dissimilar condition or provision at the same or any prior or subsequent time. Any waiver must be in writing and signed by the Executive or an authorized officer of the Company, as the case may be.

18. SECTION 409A.

(a) It is the Parties’ intent that all payments pursuant to this Agreement be exempt from, or compliant with, Section 409A of the Code (“ Section 409A ”) and that this Agreement be interpreted acccordingly.

(b) The following rules shall apply with respect to distribution of the payments, if any, to be provided to the Executive under the Agreement, as applicable:

(i) It is intended that each installment of the payments under the Agreement shall be treated as a separate “payment” for purposes of Section 409A. Neither the Company nor the Executive shall have the right to accelerate or defer the delivery of any such payments except to the extent specifically permitted or required by Section 409A.

 

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(ii) If, as of the date of the Executive’s “separation from service” from the Company, the Executive is not a “specified employee” (within the meaning of Section 409A), then each installment of the payments shall be made on the dates and terms otherwise set forth in this Agreement with respect to such payments.

(iii) If, as of the date of the Executive’s “separation from service” from the Company, the Executive is a “specified employee” (within the meaning of Section 409A), then:

(A) Each payment due under the Agreement that, in accordance with the dates and terms set forth herein, will in all circumstances, be paid within the short-term deferral period (as defined under Section 409A) shall be treated as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent permissible under Section 409A and shall be paid on the dates and terms otherwise set forth in the Agreement with respect to such payments; and

(B) Each payment due under the Agreement that is not described in Section 18(b)(iii)(A) and that would, absent this subsection, be paid within the six-month period following the Executive’s “separation from service” from the Company and on account of the Executive’s “separation from service” shall not be paid until the date that is six months and one day after such separation from service (or, if earlier, the Executive’s death), with any such payments that are required to be delayed being accumulated during the six-month period and paid in a lump sum on the date that is six months and one day following the Executive’s separation from service and any subsequent payments, if any, being paid in accordance with the dates and terms otherwise set forth herein; provided, however, that the preceding provisions of this sentence shall not apply to any payment if and to the maximum extent that that such payment is deemed to be paid under a separation pay plan that does not provide for a deferral of compensation by reason of the application of Treasury Regulation 1.409A-1(b)(9)(iii) (relating to separation pay upon an involuntary separation from service). Any payment that qualifies for the exception under Treasury Regulation Section 1.409A-1(b)(9)(iii) must be paid no later than the last day of the Executive’s second taxable year following the taxable year in which the separation from service occurs.

(c) Subject to this Section 18, any payments that may be due under the Agreement on account of termination of employment shall begin only upon the date of the Executive’s “separation from service” (determined as set forth below) which occurs on or after the termination of the Executive’s employment. The determination of whether and when the Executive’s separation from service from the Company has occurred shall be made and in a

 

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manner consistent with, and based on the presumptions set forth in, Treasury Regulation Section 1.409A-1(h). Solely for purposes of this Section 18(c), “Company” shall include all persons with whom the Company would be considered a single employer under Section 414(b) and 414(c) of the Code.

(d) All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A to the extent that such reimbursements or in-kind benefits are subject to Section 409A, including, where applicable, the requirements that (i) any reimbursement is for expenses incurred during the Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement is not subject to set off or liquidation or exchange for any other benefit.

(e) The Company makes no representation or warranty and shall have no liability to the Executive or to any other Person if any of the provisions of the Agreement are determined to constitute deferred compensation subject to Section 409A but that do not satisfy an exemption from, or the conditions of, that section.

19. SEVERABILITY.

In the event that any provision or portion of this Agreement shall be determined to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by law so as to achieve the purposes of this Agreement.

20. SURVIVORSHIP.

The respective rights and obligations of the Parties hereunder shall survive any termination of this Agreement to the extent necessary to achieve the intended preservation of such rights and obligations. In particular, the provisions of Sections 10, 11, 12 and 13 shall remain in effect as long as is necessary to give effect thereto.

21. REFERENCES.

In the event of the Executive’s death or a judicial determination of his incompetence, reference in this Agreement to the Executive shall be deemed, where appropriate, to refer to his beneficiary, estate or other legal representative.

22. GOVERNING LAW.

This Agreement shall be governed in accordance with the laws of the Commonwealth of Massachusetts without reference to its principles of conflict of laws.

 

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23. WITHHOLDING.

The Company shall be entitled to withhold from any payment to the Executive any amount of tax withholding required by applicable law at the times dictated by applicable law.

24. HEADINGS.

The headings of the sections contained in this Agreement are for convenience only and shall not be deemed to control or affect the meaning or construction of any provision of this Agreement.

25. NOTICES.

All notices and other communications required or permitted hereunder shall be in writing and shall be deemed given when (a) delivered personally, (b) delivered by certified or registered mail, postage prepaid, return receipt requested or (c) delivered by overnight courier (provided that a written acknowledgment of receipt is obtained by the overnight courier) to the Party concerned at the address indicated below or to such changed address as such Party may subsequently give such notice of:

If to the Company :

Endurance International Group Holdings, Inc.

10 Corporate Drive

Suite 300

Burlington, MA 01803

Attention: General Counsel

If to the Executive , to the most recent address shown on the records of the Company.

26. ENTIRE AGREEMENT.

This Agreement contains the entire understanding and agreement between the Parties concerning the subject matter hereof and supersedes in all respects any prior agreements, understandings, discussions, negotiations and undertakings, whether written or oral, between the Parties with respect thereto. Under no circumstances shall the Executive be entitled to any other payments or benefits of any kind, except for the payments and benefits described or referred to herein, unless otherwise agreed to the Company and the Executive in writing.

27. COUNTERPARTS.

This Agreement may be executed in two or more counterparts, each of which will be deemed an original.

 

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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.

 

ENDURANCE INTERNATIONAL GROUP

HOLDINGS, INC.

By:   /s/ Hari Ravichandran
Name: Hari Ravichandran
Title: Chief Executive Officer

 

EXECUTIVE:
/s/ Katherine Andreasen
Katherine Andreasen

[Signature Page for Employment Agreement]


Schedule I

Existing Board of Directors


EXHIBIT A

Form of Release

[ The language in this Release may change, in the discretion of the Company, based on legal developments and evolving best practices; this form is provided as an example of what will be included in the final Release document. ]

SEPARATION AND RELEASE AGREEMENT

1. I, (Insert Name) , hereby acknowledge that my employment by Endurance International Group (the “Company”) has ended as of (Insert Date) , (the “Termination Date”). I further acknowledge that I have already received all compensation of any type whatsoever to which I am entitled through my Termination Date from the Company or from any other “Released Party” (as that term is defined in Paragraph 4 below), including, without limitation, all wages, overtime, bonuses, commissions, and accrued but unused vacation pay.

2. Severance Benefit . In exchange for the Company’s receipt of this Release, signed by me, and provided I do not revoke this Release in the manner specified in Paragraph 14 herein within seven (7) days after signing it, the Company will provide to me by mail the following severance benefit (the “Severance Benefit”) following my execution and return of this Release and the ending of the revocation period: (Insert Dollar Amount) which is an amount equal to (Insert Equivalent) of my current base salary, subject to tax withholding, customary deductions and other deductions required by law. I agree and acknowledge that this Severance Benefit constitutes a payment or benefit to which I would not be entitled if I did not sign this Release. I understand that information will be provided to me about my right to continue health benefits through the Company at my expense through the federal law known as COBRA.

3. Release of Claims . In consideration of the Severance Benefit, I, on behalf of myself, my heirs, assigns, legal representatives, successors in interest, and any person claiming through me or any of them, hereby completely release and forever discharge all “Released Parties” (as that term is defined in paragraph 4 below) from any and all claims, demands or liabilities whatsoever, based on any act or omission occurring before my signing of this Release, including, without limitation, any claims, demands or liabilities arising out of my employment with any Released Party or the ending of such employment. The matters released include, but are not limited to, any claim arising under: Title VII of the Civil Rights Act of 1964; the Federal Civil Rights Act of 1991; the Worker Adjustment and Retraining Notification Act of 1988; the Americans with Disabilities Act of 1990; the Federal Family and Medical Leave Act of 1993; the Equal Pay Act; the Ralph Civil Rights Act; the Employee Retirement Income Security Act of 1974; the Age Discrimination in Employment Act; the Older Workers’ Benefit Protection Act; the Massachusetts General Laws; the Massachusetts Fair Employment Practice Act; the Massachusetts Wage Act; any federal, state or local law, regulation or ordinance regulating wages, hours and working conditions; any action based on any alleged breach of contract, breach of the covenant of good faith and fair dealing, fraud, fraudulent inducement or any other tort; any violation of public policy or statutory or constitutional rights; any claim for severance pay, bonus or similar benefit, sick leave, pension, retirement, vacation pay, holiday pay, stock options, car allowance, life insurance, health or medical insurance, or any other fringe benefit; any claim for


reimbursement of health or medical costs; and any claim for disability. Notwithstanding anything in this release to the contrary, this release shall not effect a release of any claim I may have for post-termination rights or benefits under my employment agreement and any claim for indemnification from the Company under my employment agreement or otherwise.

4. “ Released Parties” Defined . For purposes of this Release, the term “Released Parties” means the Company, and each of its respective parents, subsidiaries and affiliates, and all of the current and former employees, officers, directors, trustees, agents, representatives, shareholders, attorneys, accountants, partners, insurers, advisors, partnerships, joint venturers, successors and assigns, employee benefit programs (and the trustees, administrators, fiduciaries and insurers of such programs) of any of them, in their individual and official capacities, and the respective heirs and personal representatives of any of them, and any other persons acting by, through, under or in concert with any of them.

5. Release of Unknown Claims . I understand and agree that this Release extinguishes all claims I have ever had or now have against any Released Party, whether such claim is currently known or unknown, vested or contingent, foreseen or unforeseen. I understand that if any fact concerning any matter covered by this Release is found hereafter to be other than or different from the facts I now believe to be true, I expressly accept and assume that this Release shall be and remain effective, notwithstanding such difference in the facts.

6. No Claims . I agree that I will not file, nor encourage or knowingly permit another to file, any claim, charge, action, or complaint (collectively “Claim”) concerning any matter released herein. If I have previously filed any such Claim, I agree to take all steps necessary to cause it to be withdrawn without delay; provided, however, that nothing in this Release prevents me from filing a Claim with, cooperating with, or participating in any proceeding before the Equal Employment Opportunity Commission or a state fair employment practices agency (except that I acknowledge that I may not recover any monetary benefits in connection with any such Claim, and I agree that if any such Claim is filed on my behalf, I shall take all reasonable steps necessary to refuse any damages or individualized relief in connection therewith); and further provided that nothing in this Release shall limit or restrict my right to (a) challenge the validity of this Release under the ADEA, or (b) prosecute any ADEA claim if such claim arises after I sign this Release, and no such action on my part shall be deemed to violate this provision or any other provision of this Release.

7. Release Confidential . I represent and agree that I will keep the terms of this Release, including the amount of the Severance Benefit, completely confidential, and that I will not disclose such information to anyone, except as follows: (a) to my immediate family and professional representatives (provided they agree to be bound by this confidentiality provision); (b) to any governmental taxing authority; and (c) in response to subpoena or other legal process, provided that before making such disclosure, I shall give the Company as much prior notice thereof as practical to enable the Company to seek, at its sole discretion, an appropriate order preventing such disclosure.

8. Continuing Obligations . I acknowledge and reaffirm my obligation to keep confidential and not to use or disclose any and all non-public information concerning the Company that I acquired during the course of my employment with the Company, including, but not limited to, any non-public information concerning the Company’s business affairs, business


prospects, and financial condition. I further acknowledge and reaffirm my confidentiality obligations set forth in the Non-Disclosure Agreement and my continuing obligations with respect to non-competition, non-solicitation, non-disparagement, and Company work product set forth in Sections 11 and 12 of my Employment Agreement, all of which remain in full force and effect.

9. Company Affiliation . I agree that, following the Termination Date, I will not hold myself out as an officer, employee, or otherwise as a representative of the Company, and I agree to update any directory information that indicates I am currently affiliated with the Company. Without limiting the foregoing, I confirm that, within five (5) days following the Termination Date, I will update any and all social media accounts (including, without limitation, LinkedIn, Facebook, Twitter and Four Square) to reflect that I am no longer employed by or associated with the Company.

10. Return of Company Property . I confirm that I have returned to the Company all keys, files, records (and copies thereof), equipment (including, but not limited to, computer hardware, software and printers, flash drives and storage devices, wireless handheld devices, cellular phones, smartphones, tablets, etc.), Company identification, and any other Company-owned property in my possession or control and have left intact all electronic Company documents, including but not limited to those that I developed or helped to develop during my employment. I further confirm that I have cancelled all accounts for my benefit, if any, in the Company’s name, including but not limited to, credit cards, telephone charge cards, cellular phone accounts, and computer accounts.

11. Entire Agreement . This Release constitutes the entire agreement between the Company and me as to any matter referred to in this Release. This Release supersedes all other agreements between the Company and me. In executing this Release, I am not relying upon any agreement, representation, written or oral statement, understanding, omission, or course of conduct that is not expressly set forth in this Release.

12. Governing Law; Arbitration . This Release shall be governed by and enforced in accordance with the laws of the State of Massachusetts, without regard to its conflicts of law principles. I acknowledge that I previously agreed, pursuant to Section 14 of my Employment Agreement, to arbitrate any claim relating to or arising out of my employment with the Company, and I acknowledge and affirm that such provision survives my termination from employment with the Company. For clarification, but not limitation, I further acknowledge and agree that any controversy or claim arising out of or in any way relating to this Release or the breach thereof shall also be settled by final and binding arbitration, consistent with the terms, procedures, and exceptions set forth in Section 14 of the Employment Agreement. I understand and agree that this arbitration provision shall not apply to claims brought in a court of competent jurisdiction by either me or any Released Party to compel arbitration under this provision, to enforce an arbitration award or to obtain preliminary injunctive and/or other equitable relief in support of claims that may be prosecuted in an arbitration by me or any Released Party.

13. Successors and Assigns . This Release will bind and inure to the benefit of the successors, assigns, heirs and personal representatives of the Released Parties and me.


14. Review Period . I acknowledge that prior to signing this Release, I have been advised to consult with an attorney of my choice to review the Release, and have taken such opportunity to the extent I wish to do so. I further acknowledge that the Company has given me at least twenty-one (21) days to decide whether I wish to execute this Release.

15. Revocation . I understand that I may revoke this Release at any time during the seven (7) days after I sign it (the “Last Revocation Day”), and that the Release shall not become effective until the end of that revocation period. I understand and agree that by executing, timely returning, and not revoking this Release, I am waiving any and all rights or claims I might have under the Age Discrimination in Employment Act, as amended by the Older Workers Benefit Protection Act, and that I have received consideration beyond that to which I was previously entitled. In the event I choose to revoke the Release, such revocation must be by means of a writing signed by me and delivered within the seven (7) day revocation period as follows: via facsimile or hand-delivery to Pam Clark at Endurance International Group., 10 Corporate Drive #300, Burlington, Massachusetts 01803 or by facsimile number (602) 258-0588. If I revoke this Release via facsimile, I agree that my facsimile signature will be valid and binding for all purposes.

16. Modification in Writing . No provision of this Release may be modified, amended or waived except by a writing signed by me and an authorized representative of the Company.

17. No Admission of Liability . This Release shall not at any time or for any purpose be deemed an admission of liability of any kind by any Released Party. This Release may not be used or introduced as evidence in any legal proceeding, except to enforce or challenge its terms.

18. Headings . The headings, titles and captions contained in this Release are inserted only for the convenience of the parties and for reference, and in no way define, limit, extend or describe the scope of this Release or the intent of any provision hereof.

19. Severability . If any provision of this Release shall, for any reason, be held by a court or other tribunal of competent jurisdiction to be invalid, void or unenforceable, in whole or in part, such adjudication shall in no way affect any other provisions of this Release or the validity or enforcement of the remainder of this Release, and any provision thus affected shall itself be modified only to the extent necessary to bring the provision within the applicable requirements of the law.

20. Timely Execution . To receive the Severance Benefit, I must sign this Release on or after my Last Day Worked, and return it to the Company within twenty-one (21) days of my Last Day Worked, as follows: hand delivery or first-class mail to Pam Clark at Endurance International Group., 10 Corporate Drive #200, Massachusetts 01803 or by facsimile number (602) 258-0588.

 

Sincerely,

 

The Endurance International Group, Inc.

By:    
Its:    


EMPLOYEE’S ACCEPTANCE OF RELEASE

I have read this Release and I understand all of its terms. I acknowledge and agree that this Release is executed voluntarily, without coercion, and with full knowledge of its significance. I further acknowledge that I have been given twenty-one (21) days during which to decide whether to execute this Release, and have used that time to the extent I wish to do so. I understand that my execution of this Release constitutes a full, unconditional general release of any and all known or unknown claims that I may have against any Released Party, despite the fact that I may become aware of claims in the future which I did not consider prior to signing this Release.

 

Date:            
        (Insert Employee Name)
       

Exhibit 10.9

EMPLOYMENT AGREEMENT

EMPLOYMENT AGREEMENT (the “ Agreement ”), made and entered into as of March 7, 2016 by and between Endurance International Group Holdings, Inc., a Delaware corporation (together with its successors and assigns permitted under this Agreement, the “ Company ”) and David C. Bryson (the “ Executive ”).

W I T N E S S E T H:

WHEREAS, the Company desires to continue to employ the Executive as its Chief Legal Officer as of and following the Effective Date (as defined below) and desires to memorialize the terms and conditions of such employment in this Agreement;

NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and for other good and valuable consideration, the receipt of which is mutually acknowledged, the Parties agree as follows:

1. DEFINITIONS. As used in this Agreement, capitalized terms shall have the meanings set forth in this Agreement. The following capitalized terms shall have the following meanings:

(a) “ Affiliate ” of a Person shall mean a Person that directly or indirectly Controls, is Controlled by, or is under common Control with the Person specified.

(b) “ Annual Bonus ” shall mean the annual cash bonus, if any, payable to the Executive in respect of any given calendar year pursuant to Section 5 of this Agreement.

(c) “ Base Salary ” shall mean the annual rate of base salary provided for in Section 4 below or any increased annual rate of base salary granted to the Executive pursuant to Section 4 of this Agreement.

(d) “ Board ” shall mean the Board of Directors of the Company.

(e) “ Cause ” shall mean:

(i) a continued failure of the Executive to perform his duties and responsibilities (other than as a result of physical or mental illness or injury) after receipt of written notice from the Board of such failure, provided that the Executive shall have 30 calendar days after the date of receipt of such notice in which to cure such failure (to the extent cure is possible);

(ii) the Executive’s willful misconduct or gross negligence which is materially injurious to the Company or any of its Affiliates (whether financially, reputationally or otherwise);

(iii) a breach by the Executive of his fiduciary duty or duty of loyalty to the Company or its Affiliates which is materially injurious to the Company or any of its Affiliates (whether financially, reputationally or otherwise);

 

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(iv) the indictment of the Executive for any felony or other serious crime involving moral turpitude; or

(v) the Executive’s (A) breach of any restrictive covenant regarding competition or solicitation or (B) material breach of any other restrictive covenant (including, without limitation, non-disclosure of confidential information), in each case to which he is subject pursuant to this Agreement or any other agreement with the Company or any of its Affiliates (the “ Restrictive Covenants ”); provided that, in the case of a breach described in clause (v)(B) above, the Board shall provide the Executive with written notice of such breach and the Executive shall have 30 calendar days after the date of receipt of such notice in which to cure such failure (to the extent cure is possible).

If, within the three-month period immediately following the Termination Date, it is discovered that the Executive engaged in conduct which could have resulted in the Executive’s employment with the Company being terminated for Cause, as such term is defined above, the Participant’s employment shall, at the election of the Board, in its sole discretion, be deemed to have been terminated for Cause retroactively to the date the events giving rise to Cause occurred.

(f) A “ Change in Control ” shall mean the occurrence of one or more of the following events:

(i) the acquisition by an individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, and amended (the “ Exchange Act ”)) (a “ 13D Person ”) of beneficial ownership of any capital stock of the Company if, after such acquisition, such 13D Person beneficially owns (within the meaning of Rule 13d-3 under the Exchange Act) 50% or more of either (x) the then-outstanding shares of common stock of the Company (the “ Outstanding Company Common Stock ”) or (y) the combined voting power of the then-outstanding securities of the Company entitled to vote generally in the election of directors (the “ Outstanding Company Voting Securities ”); provided , however, that for purposes of this subsection (i), the following acquisitions shall not constitute a Change in Control: (I) any acquisition directly from the Company (excluding an acquisition pursuant to the exercise, conversion or exchange of any security exercisable for, convertible into or exchangeable for common stock or voting securities of the Company, unless the 13D Person exercising, converting or exchanging such security acquired such security directly from the Company or an underwriter or agent of the Company) or (II) any acquisition by any corporation pursuant to a Business Combination (as defined below) which complies with clauses (x) and (y) of subsection (iii) of this definition; or

(ii) a change in the composition of the Board that results in the Continuing Directors (as defined below) no longer constituting a majority of the Board (or, if applicable, the Board of Directors of a successor corporation to the Company), where the term “ Continuing Director ” means at any date a member of the Board (x) who was a member of the Board on the date of the initial adoption of this Agreement by the Board or (y) who was nominated or elected subsequent to such date by at least a majority of the directors who were Continuing Directors at the time of such nomination or election or whose election to the Board was recommended or endorsed by at least a majority of the directors who were Continuing

 

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Directors at the time of such nomination or election; provided , however, that there shall be excluded from this clause (y) any individual whose initial assumption of office occurred as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents, by or on behalf of a person other than the Board; or

(iii) the consummation of a merger, consolidation, reorganization, recapitalization or share exchange involving the Company or a sale or other disposition of all or substantially all of the assets of the Company (a “ Business Combination ”), unless, immediately following such Business Combination, each of the following two conditions is satisfied: (x) all or substantially all of the individuals and entities who were the beneficial owners of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then-outstanding shares of common stock and the combined voting power of the then-outstanding securities entitled to vote generally in the election of directors, respectively, of the resulting or acquiring corporation in such Business Combination (which shall include, without limitation, a corporation which as a result of such transaction owns the Company or substantially all of the Company’s assets either directly or through one or more subsidiaries) (such resulting or acquiring corporation is referred to herein as the “ Acquiring Corporation ”) in substantially the same proportions as their ownership of the Outstanding Company Common Stock and Outstanding Company Voting Securities, respectively, immediately prior to such Business Combination and (y) no 13D Person (excluding any employee benefit plan (or related trust) maintained or sponsored by the Company or by the Acquiring Corporation) beneficially owns, directly or indirectly, 50% or more of the then-outstanding shares of common stock of the Acquiring Corporation, or of the combined voting power of the then-outstanding securities of such corporation entitled to vote generally in the election of directors (except to the extent that such ownership existed prior to the Business Combination); or

(iv) the liquidation or dissolution of the Company;

provided, however, that to the extent required with respect to any payment hereunder that is subject to Section 409A of the Code, the Change in Control must be a “change in control event” within the meaning of Treasury Regulation Section 1.409A-3(i)(5)(i).

(g) “ Change in Control Period ” shall mean the period beginning on the date on which a Change in Control is consummated and ending on the one-year anniversary thereof.

(h) “ COBRA ” shall mean the Consolidated Omnibus Budget Reconciliation Act.

(i) “ Code ” shall mean the Internal Revenue Code of 1986, as amended, and all rules and regulations promulgated thereunder.

(j) “ Company Employee ” shall mean an employee, director or independent contractor of or for the Company or any of its Affiliates (to the extent such Affiliate is engaged in a Competing Business).

 

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(k) “ Competing Business ” shall mean any business engaged in a line of business in which the Company or its subsidiaries (i) is engaged as of the Termination Date, (ii) has memorialized plans (electronically or otherwise) to become engaged within the six-month period immediately following the Termination Date or (iii) has plans of which the Executive knows (or of which there is a reasonable expectation that the Executive should have known) to become engaged within the six-month period immediately following the Termination Date.

(l) “ Control ” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

(m) “ Effective Date ” shall mean the date specified in Section 2 below.

(n) “ Person ” shall mean an individual, partnership, corporation, limited liability company, unincorporated organization, trust or joint venture, or a governmental agency or political subdivision thereof.

(o) “ Restricted Period ” shall mean the period beginning on the Termination Date and ending eighteen months after the Termination Date.

(p) “ Stock Incentive Plan ” shall mean the Endurance International Group Holdings, Inc. 2013 Stock Incentive Plan (or its successor).

(q) “ Termination Date ” shall mean the date specified in Section 9(b).

(r) “ Term of Employment ” shall mean the period specified in Section 2 below (including any extension as provided therein).

(s) “ Work Product ” shall mean all ideas, works of authorship, inventions and other creations, whether or not patentable, copyrightable, or subject to other intellectual-property protection, that are made, conceived, developed or worked on in whole or in part by the Executive while employed by the Company and/or any of its Affiliates, that relate in any manner whatsoever to the business, existing or proposed, of the Company and/or any of its Affiliates, or any other business or research or development effort in which the Company and/or any of its Affiliates engages during the Term of Employment.

2. TERM OF EMPLOYMENT.

The Term of Employment shall begin on February 22, 2016 (the “ Effective Date ”). Subject to the terms hereof, the Term of Employment shall extend until the second anniversary of the Effective Date. Commencing on the second anniversary of the Effective Date and on each anniversary thereafter, the Term of Employment shall be renewed automatically for succeeding terms of (1) year, unless either Party gives written notice to the other Party at least ninety (90) days prior to the expiration of the then-current term of the intention not to renew (a “ Non-Renewal Notice ”). If a Non-Renewal Notice is provided by either Party, then the Executive’s employment with the Company shall cease as of the end of the then-current Term of Employment. Notwithstanding the foregoing, the Term of Employment may be earlier terminated by either Party in accordance with the provisions of Section 8, 9, and 10 of this Agreement, and in such event the Term of Employment shall end on the Termination Date.

 

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3. POSITION, DUTIES AND RESPONSIBILITIES.

(a) During the Term of Employment, the Executive shall be employed as the Chief Legal Officer of the Company and shall have such duties, responsibilities and authority as shall be reasonably determined from time to time by the Chief Executive Officer of the Company (the “ CEO ”). Further, the Executive shall (i) serve on such boards of directors of subsidiaries of the Company and/or (ii) hold such corporate officer titles and positions of the Company and any of its subsidiaries, as may be requested by the CEO in his sole discretion, in any such case without additional compensation therefor. The Executive, in carrying out his duties under this Agreement, shall report directly to the CEO. During the Term of Employment, subject to Section 3(b) and except for permitted vacation periods and reasonable periods of illness, the Executive shall devote substantially all of his business time and attention to the performance of his duties hereunder and shall use his reasonable best efforts, skills and abilities to promote the Company’s interests.

(b) Nothing herein shall preclude the Executive from (i) continuing to serve as a director and advisor on the board of directors of the corporations and entities set forth on Schedule I hereto, (ii) serving on up to one other board of directors (or advisory committee) of a corporation or entity with the prior express written consent of the Board (which consent will not be unreasonably withheld), (iii) serving on the boards of a reasonable number of trade associations and civic or charitable organizations and (iv) managing personal investments, so long as such activities set forth in this Section 3(b) do not conflict or materially interfere with the effective discharge of his duties and responsibilities under Section 3(a) above.

4. BASE SALARY.

During the Term of Employment, the Executive shall be paid an annualized gross Base Salary, payable in accordance with the regular payroll practices of the Company, of $300,000. The Base Salary shall be reviewed annually for increase (but not decrease) in the sole discretion of the Board.

5. ANNUAL BONUS OPPORTUNITY.

During the Term of Employment, the Executive shall be eligible to earn an Annual Bonus pursuant to the terms and conditions of any annual Management Incentive Plan adopted by the Company in respect of each full fiscal year occurring during the Term of Employment, subject to the Executive’s continued employment through the date on which payments are made under the applicable Management Incentive Plan. The target amount of the Annual Bonus (the “ Target Annual Bonus Opportunity ”) shall be 50% of the Executive’s Base Salary.

 

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6. EMPLOYEE BENEFIT PROGRAMS.

During the Term of Employment, the Executive shall be entitled to participate in any employee retirement, welfare and fringe benefit plans and programs made available to the Company’s senior executive officer level employees generally, as such plans or programs may be in effect from time to time. The Company shall pay the expenses associated with the Executive’s participation in such benefit plans to the same extent the Company pays the expenses associated with the participation by other similarly situated senior executive officer level employees of the Company.

7. REIMBURSEMENT OF BUSINESS AND OTHER EXPENSES; PERQUISITES; VACATIONS.

(a) Business Expenses . The Executive is authorized to incur reasonable expenses in carrying out his duties and responsibilities under this Agreement and the Company shall promptly reimburse him for all reasonable business expenses incurred in connection with the performance of his duties hereunder, subject to the Executive’s provision of reasonable documentation of such expenses in accordance with the Company’s business expense reimbursement policy as may be in effect from time to time.

(b) Perquisites . During the Term of Employment, the Executive shall be entitled to any perquisites that are generally offered to other senior executive officers of the Company, on terms and conditions as determined by the Company from time to time.

(c) Vacation . Consistent with Company’s policy for executive employees, the Executive will not accrue paid vacation.

8. TERMINATION OF EMPLOYMENT.

(a) Death . The Executive shall terminate employment with the Company, and the Term of Employment shall terminate, upon the Executive’s death.

(b) Disability . The Company shall be entitled to terminate the Executive’s employment for Disability if the Executive has experienced a permanent disability as defined in the Company’s long-term disability plans (a “ Disability ”). The termination of the Executive’s employment by the Company for Disability shall not be considered a termination without Cause for purposes of this Agreement.

(c) For or Without Cause or Voluntarily (Other Than for Good Reason) . The Company may terminate the Executive’s employment for Cause or without Cause. The Executive may voluntarily terminate his employment, other than for Good Reason (“ Voluntary Resignation ”), provided that the Executive provides the Company with notice of his intent to terminate his employment at least thirty (30) days in advance of the Termination Date.

(d) Good Reason . The Executive may terminate his employment with the Company for Good Reason. For purposes of this Agreement, “ Good Reason ” shall mean, in connection with the Executive’s termination of employment, the occurrence of any of the following events without his consent:

(i) a material diminution in the Executive’s duties and responsibilities other than a change in the Executive’s duties and responsibilities that results from becoming part of a larger organization following a Change in Control;

 

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(ii) the Company’s material breach of this Agreement, including the failure to timely pay Base Salary or any other amounts due under this Agreement; or

(iii) a relocation of the Executive’s primary work location after the Effective Date such that his daily commute is increased by more than 40 miles;

provided that, within 30 days following the occurrence of any of the events set forth in clauses (i), (ii) or (iii), the Executive shall have delivered written notice to the Company of his intention to terminate his employment for Good Reason, which notice specifies in reasonable detail the circumstances claimed to give rise to the Executive’s right to terminate employment for Good Reason, and the Company shall not have cured such circumstances within 30 days following the Company’s receipt of such notice.

9. PROCEDURE FOR TERMINATION OF EMPLOYMENT.

(a) Notice of Termination of Employment . Any termination of the Executive’s employment with the Company (other than a termination of employment on account of the death of the Executive) shall be communicated by written “ Notice of Termination ” to the other party hereto in accordance with Section 25 hereof.

(b) Termination Date . The Termination Date shall mean: (i) if the Executive’s termination of employment occurs due to the Executive’s death, the date of the Executive’s death; (ii) if the Executive’s termination of employment occurs due to the Executive’s Disability, the date on which the Executive receives a Notice of Termination from the Company; (iii) if the Executive’s termination of employment occurs due to the Executive’s Voluntary Resignation, the date specified in the notice given pursuant to Section 8(c) hereof, which shall not be less than thirty (30) days after Company’s receipt of the Notice of Termination; (iv) if the Executive’s termination of employment occurs due to the Executive’s termination for Good Reason, the date of his termination in accordance with Section 8(d) hereof; (v) if the Executive’s termination of employment occurs pursuant to a non-renewal of the Term of Employment by either Party, the end of the then-current Term of Employment; and (vi) if the Executive’s termination of employment occurs for any other reason, the date on which a Notice of Termination is given or any later date (within thirty (30) days, or any alternative time period agreed upon by the Parties, after the giving of such Notice of Termination) set forth in such Notice of Termination. Effective as of the Termination Date, unless otherwise determined by the Board, the Executive shall be deemed to have resigned from any and all positions he then holds with the Company and its Affiliates.

10. PAYMENTS UPON TERMINATION OF EMPLOYMENT.

(a) Termination Due to Death or Disability . In the event that the Executive’s employment hereunder is terminated due to his death or Disability, the Executive (or his estate or his beneficiaries, in the event of his death), shall be entitled to receive:

 

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(i) Payment in respect of (A) his accrued but unpaid Base Salary through the Termination Date, (B) any unpaid business expense reimbursements due to the Executive under Section 7 of this Agreement and (C) notwithstanding anything to the contrary in Section 5 of this Agreement or the applicable Management Incentive Plan, in the event that the Termination Date occurs after the end of a fiscal year, but prior to the date on which the Annual Bonus earned by the Executive with respect to such fiscal year is paid to the Executive, payment of such Annual Bonus ((A), (B) and (C) together, the “ Accrued Amounts ”). The Accrued Amounts shall be paid as soon as reasonably practicable, but no later than thirty (30) days, following the Termination Date; and

(ii) any amounts or benefits to which the Executive is then entitled under the terms of the benefit plans then-sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A of the Code).

(b) Termination by the Company for Cause, Voluntary Resignation or Termination Due to Non-Renewal . In the event the Company terminates the Executive’s employment hereunder for Cause or in the event of a Voluntary Resignation, or the Executive’s employment hereunder is terminated as a result of the delivery of a Non-Renewal Notice, the Executive shall be entitled to receive:

(i) payment of the Accrued Amounts as soon as reasonably practicable, but no later than thirty (30) days, following the Termination Date; and

(ii) any amounts or benefits to which the Executive is then entitled under the terms of the benefit plans then-sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A of the Code).

(c) Termination by the Company without Cause or by the Executive for Good Reason .

(i) In the event that the Executive’s employment hereunder is (x) terminated by the Company without Cause, other than due to Disability or death or (y) the Executive resigns for Good Reason, the Executive shall be entitled to receive:

(A) payment of the Accrued Amounts as soon as reasonably practicable, but no later than thirty (30) days, following the Termination Date;

(B) any amounts or benefits to which the Executive is then entitled under the terms of the benefit plans then-sponsored by the Company in accordance with their terms (and not accelerated to the extent acceleration does not satisfy Section 409A of the Code); and

 

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(C) subject to (x) the Executive’s satisfaction of the Release Requirements and (y) the Executive’s continued compliance with the Restrictive Covenants:

(1) continued payment of Base Salary at the annualized rate in effect on the Termination Date for a period of:

 

  (A) if the Termination Date does not occur within the Change in Control Period, twelve (12) months following the Termination Date; or

 

  (B) if the Termination Date does occur within the Change in Control Period, eighteen (18) months following the Termination Date,

in either case payable in accordance with the Company’s usual and customary payroll practices;

(2) payment of the Target Annual Bonus Opportunity in effect on the Termination Date, payable in equal monthly installments over a period of:

 

  (A) twelve (12) months following the Termination Date if the Termination Date does not occur within the Change in Control Period; or

 

  (B) eighteen (18) months following the Termination Date if the Termination Date does occur within the Change in Control Period,

in either case payable in accordance with the Company’s usual and customary payroll practices; and

(3) provided the Executive is eligible for and timely elects to continue receiving group medical insurance under COBRA, pay (but in no event for longer than eighteen (18) months following the Executive’s Termination Date) for such COBRA coverage (the “ COBRA Amount ”); provided , however , that if the Executive becomes re-employed with another employer and becomes eligible for medical insurance coverage under a plan maintained by such employer, the Executive shall be obligated to provide the Company with written notice of his new employment within five (5) business days of obtaining such new employment and the reimbursement by the Company of the COBRA Amount shall cease and the Company shall have no further obligation in connection therewith; and provided , further , that if the Company’s provision of the COBRA Amount will violate the nondiscrimination requirements of applicable law, this benefit will not apply.

 

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(ii) Payments to be made under Section 10(c)(i)(C) (the “ Severance Payments ”) shall be provided or shall commence on the 60 th day after the Termination Date (the “ Release Date ”), provided that, as of the 50 th day after the Termination Date, the Release Requirements are satisfied. If the Release Requirements are not satisfied as of the 50 th day after the Termination Date (and the Release has been provided to the Executive as of the Termination Date), then the Executive shall not be entitled to any payments or benefits under the foregoing subsections and the Company and its Affiliates shall have no further obligations in connection therewith. If the Release Requirements are satisfied, then the portion of the Severance Payments which would otherwise have been paid during the period between the Termination Date and the Release Date shall instead be paid as soon as reasonably practicable following the Release Date. For purposes of this Agreement, the “ Release Requirements ” shall be satisfied if, as of the applicable date, the Executive has executed a general release of claims against the Company and its Affiliates in substantially the form attached hereto as Exhibit A and the revocation period required by applicable law has expired without the Executive’s revocation of such release.

(d) No Mitigation Requirement or Offset . In the event of any termination of employment under this Section 10, the Executive shall be under no obligation to seek other employment and, except as otherwise provided in Section 10(c)(i)(C)(3), there shall be no offset against amounts due the Executive under this Agreement on account of any remuneration attributable to any subsequent employment that he may obtain.

(e) No Other Severance Benefits . Except as specifically set forth in this Agreement, the Executive covenants and agrees that the Executive shall not be entitled to any other form of severance or termination payments or benefits from the Company, including, without limitation, payments or benefits otherwise payable under any of the Company’s regular severance policies.

(f) Nature of Payments . Any amounts due under this Section 10 are in the nature of severance payments considered to be reasonable by the Company and the Executive and are not in the nature of a penalty.

11. RESTRICTIVE COVENANTS.

(a) Non-Competition .

(i) The Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its Affiliates and accordingly agrees that during the Term of Employment and the Restricted Period, the Executive will not directly or indirectly become an employee, director, or independent contractor of, or a consultant to, or perform any services for, or acquire any financial interest in, any Person engaging in a Competing Business.

(ii) Notwithstanding anything to the contrary in this Agreement, the Executive may:

(A) directly or indirectly own, solely as an investment, securities of any Person engaged in a Competing Business which are publicly traded on a national or regional stock exchange or on the over-

 

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the-counter market if the Executive (1) is not a controlling person of, or a member of a group which controls, such person and (2) does not, directly or indirectly, own one percent (1%) or more of any class of securities of such Person (excluding any interest the Executive owns through a mutual fund, private equity fund or other pooled account);

(B) provide services for a subsidiary or division of a Person that is engaged in a Competing Business as long as such subsidiary or division (1) is not itself engaged in a Competing Business and (2) does not, and the Executive does not, provide any services to the Person that is engaged in a Competing Business that relate (directly or indirectly) to such Competing Business; and

(C) continue to engage in those activities set forth in Section 3(b), provided that Executive is not engaging in such activities for a Competing Business.

(b) Non-Solicitation .

(i) During the Term of Employment and the Restricted Period, the Executive will not, whether on the Executive’s own behalf or on behalf of or in conjunction with any person, company, business entity or other organization whatsoever, solicit or hire, or attempt to solicit or hire:

(A) any customer or supplier of the Company or any of its Affiliates in connection with any business activity that then competes with the Company or such Affiliate(s) or to terminate or alter in a manner adverse to the Company or such Affiliate(s) such customer’s or supplier’s relationship with the Company or such Affiliate(s); or

(B) any Company Employee or individual who was a Company Employee within the six-month period immediately prior thereto to terminate or otherwise alter his or her employment with, and/or provision of services for, the Company or its Affiliates.

(c) Confidentiality .

(i) The Executive hereby agrees that, during the Term of Employment and thereafter, other than in the proper performance of his duties for the Company and its Affiliates, he will hold in strict confidence any proprietary information or Confidential Information related to the Company or any of its Affiliates. For purposes of this Agreement, the term “ Confidential Information ” shall mean all information of the Company or any of its Affiliates (in whatever form) which is not generally known to the public, including without limitation any inventions, processes, methods of distribution, customer lists or customers’ or trade secrets, provided that Confidential Information shall not include (A) information the Executive is required to disclose by applicable law, regulation or legal process so long as the Executive notifies the Company promptly (it being understood that

 

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“promptly” shall mean “prior to” unless prior notice is not possible, in which case “promptly” shall mean as soon as practicable following) of the Executive’s obligation to disclose Confidential Information by applicable law, regulation or legal process and cooperates with the Company to limit the extent of such disclosure, or (B) any information that is or becomes publicly known through no fault of the Executive. Notwithstanding anything to the contrary, the Executive is not prohibited from reporting possible violations of federal law or regulations to any governmental agency or entity, including but not limited to the Department of Justice, the Securities and Exchange Commission, the Congress, and any agency Inspector General, or making other disclosures that are protected under the whistleblower provisions of federal law or regulation and the Executive is not required to obtain the Company’s approval or notify the Company that the Executive intends to make or has made such a report or disclosure.

(ii) The Executive agrees that at the time of the termination of his employment with the Company, whether at the insistence of the Executive or the Company, and regardless of the reasons therefor, he will deliver to the Company, and not keep or deliver to anyone else, any and all notes, files, memoranda, papers and, in general, any and all physical and electronic matter containing Confidential Information, including any and all documents significant to the conduct of the business of the Company or any subsidiary or Affiliate of the Company which are in his possession, except for any documents for which the Company or any subsidiary or Affiliate of the Company has given written consent to removal at the time of the termination of the Executive’s employment.

(d) Non-Disparagement . The Executive agrees that he will not, any time during the Term of Employment and on or after the time of the termination of his employment with the Company for any reason, directly or indirectly, disparage (i) the Company or its Affiliates, (ii) the business, property or assets of the Company or its Affiliates, or (iii) any of the former, current or future officers, directors, employees or shareholders of the Company or its Affiliates. The Company shall use its reasonable best efforts to cause its officers and members of the Board (in their individual capacities or on behalf of the Company) not to, at any time during the Term of Employment and on or after the time of the termination of Executive’s employment with the Company for any reason, directly or indirectly, make or publish any disparaging statements or remarks about the Executive. Nothing in this Section shall be construed to limit the ability of Executive or the Company’s officers or members of the Board (in their individual capacities or on behalf of the Company) to give truthful testimony pursuant to valid legal process, including but not limited to, a subpoena, court order or a government investigative matter.

(e) Injunctive Relief; Effect of Violation on Severance Payments . It is impossible to measure in money the damages that will accrue to the Company or any of its Affiliates in the event that the Executive breaches any of the Restrictive Covenants. In the event that the Executive breaches any such Restrictive Covenant, the Company or any of its Affiliates shall be entitled to an injunction restraining the Executive from violating such Restrictive Covenant (without posting any bond). If the Company or any of its Affiliates shall institute any action or proceeding to enforce any such Restrictive Covenant, the Executive hereby waives the

 

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claim or defense that the Company or any of its Affiliates has an adequate remedy at law and agrees not to assert in any such action or proceeding the claim or defense that the Company or any of its Affiliates has an adequate remedy at law. The foregoing shall not prejudice the Company’s or any of its Affiliates’ other rights or remedies under applicable law or equity. In addition, the Company and the Executive agree that the Executive violates any Restrictive Covenant, the Company may cease payment of the Severance Payments and shall also be entitled to recoup any portion of the Severance Payments that were previously paid to the Executive.

12. WORK PRODUCT.

(a) In consideration of the Company’s promises and undertakings in this Agreement, the Executive agrees that all Work Product will be disclosed promptly by the Executive to the Company, shall be the sole and exclusive property of the Company, and is hereby assigned to the Company, regardless of whether (i) such Work Product was conceived, made, developed or worked on during regular hours of his employment or his time away from his employment, (ii) the Work Product was made at the suggestion of the Company; or (iii) the Work Product was reduced to drawing, written description, documentation, models or other tangible form. Without limiting the foregoing, the Executive acknowledges that all original works of authorship that are made by the Executive, solely or jointly with others, within the scope of his employment and that are protectable by copyright are “works made for hire,” as that term is defined in the United States Copyright Act (17 U.S.C., Section 101), and are therefore owned by the Company from the time of creation.

(b) The Executive agrees to assign, transfer, and set over, and the Executive does hereby assign, transfer, and set over to the Company, all of his right, title and interest in and to all Work Product, without the necessity of any further compensation, and agrees that the Company is entitled to obtain and hold in its own name all patents, copyrights, and other rights in respect of all Work Product. The Executive agrees to (i) cooperate with the Company during and after his employment with the Company in obtaining patents or copyrights or other intellectual-property protection for all Work Product; (ii) execute, acknowledge, seal and deliver all documents tendered by the Company to evidence its ownership thereof throughout the world; and (iii) cooperate with the Company in obtaining, defending and enforcing its rights therein.

(c) The Executive represents that there are no other contracts to assign inventions or other intellectual property that are now in existence between the Executive and any other Person. The Executive further represents that he has no other employment or undertakings that might restrict or impair his performance of this Agreement. The Executive will not in connection with his employment by the Company, use or disclose to the Company any confidential, trade secret, or other proprietary information of any previous employer or other Person that the Executive is not lawfully entitled to disclose.

13. POST-TERMINATION OBLIGATIONS.

Following the Term of Employment the Executive shall, upon reasonable notice, use his reasonable best efforts to assist and cooperate with the Company and its counsel by providing such information and assistance to the Company as may reasonably be required by the Company at the Company’s expense in connection with any existing or threatened claim, arbitral

 

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hearing, litigation, action or governmental or other investigation involving the conduct of business of the Company or its Affiliates not commenced by or involving the Executive. The Executive’s obligation to cooperate shall be reasonably limited so as not to unreasonably interfere with his other business obligations, and shall not exceed one hundred (100) hours.

14. ARBITRATION.

(a) Any dispute, claim or controversy arising under or in connection with this Agreement or the Executive’s employment hereunder or the termination thereof, other than injunctive relief under Section 11 hereof, shall be settled exclusively by arbitration administered by the American Arbitration Association (the “ AAA ”) and carried out in the Commonwealth of Massachusetts. The arbitration shall be conducted in accordance with the AAA rules governing commercial arbitration in effect at the time of the arbitration, except as modified herein. There shall be one arbitrator, mutually selected by the Company and the Executive from a list of arbitrators provided by the AAA within thirty (30) days of receipt by respondent of the demand for arbitration. If the Company and Executive cannot mutually agree on an arbitrator within thirty (30) days, then the parties shall request that the AAA appoint the arbitrator and the arbitrator shall be appointed by the AAA within fifteen (15) days of receiving such request.

(b) The arbitration shall commence within forty-five (45) days after the appointment of the arbitrator; the arbitration shall be completed within sixty (60) days of commencement; and the arbitrator’s award shall be made within thirty (30) days following such completion. The parties may agree to extend the time limits specified in the foregoing sentence.

(c) The arbitrator may award any form of relief permitted under this Agreement and applicable law, including damages and temporary or permanent injunctive relief, except that the arbitral tribunal is not empowered to award damages in excess of compensatory damages, and each party hereby irrevocably waives any right to recover punitive, exemplary or similar damages with respect to any dispute. The arbitrator may award attorney’s fees. The award shall be in writing and shall state the reasons for the award.

(d) The decision rendered by the arbitral tribunal shall be final and binding on the parties to this Agreement. Judgment may be entered in any court of competent jurisdiction. The parties hereto waive, to the fullest extent permitted by law, any rights to appeal to, or to seek review of such award by, any court. The parties hereto further agree to obtain the arbitral tribunal’s agreement to preserve the confidentiality of the arbitration.

15. LEGAL FEES AND INDEMNIFICATION.

(a) Except as specifically provided in Section 14(c), each Party shall bear the cost of any legal fees and other fees and expenses which may be incurred in connection with the negotiation of, and enforcing its respective rights under, this Agreement.

(b) During the Term of Employment and for so long as there exists liability thereafter with regard to the Executive’s activities during the Term of Employment on behalf of the Company, the Company shall indemnify the Executive to the fullest extent permitted by applicable law (and in no event in connection with the Executive’s gross negligence or willful misconduct), and shall at the Company’s election provide the Executive with legal representation

 

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or shall advance to the Executive reasonable attorneys’ fees and expenses as such fees and expenses are incurred (subject to an undertaking from the Executive to repay such advances if it shall be finally determined by a judicial decision which is not subject to further appeal that the Executive was not entitled to the reimbursement of such fees and expenses).

(c) During the Term of Employment and for six years thereafter, the Executive shall be entitled to the same directors’ and officers’ liability insurance coverage that the Company provides generally to its other directors and officers, as may be amended from time to time for such directors and officers.

16. ASSIGNABILITY; BINDING NATURE.

This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs (in the case of the Executive) and assigns. Rights or obligations of the Company under this Agreement may be, and may only be, assigned or transferred by the Company pursuant to a merger or consolidation in which the Company is the continuing entity, or the sale or liquidation of all or substantially all of the assets of the Company, provided that the assignee or transferee is the successor to all or substantially all of the assets of the Company and such assignee or transferee assumes the liabilities, obligations and duties of the Company, as contained in this Agreement, either contractually or as a matter of law. No rights or obligations of the Executive under this Agreement may be assigned or transferred by the Executive other than his rights to compensation and benefits, which may be transferred only by will or operation of law, provided that any amount due hereunder to the Executive at the time of his death shall instead be paid to his estate or his designated beneficiary.

17. AMENDMENT OR WAIVER.

No provision in this Agreement may be amended unless such amendment is agreed to in writing and signed by the Executive and an authorized officer of the Company. No waiver by either Party of any breach by the other Party of any condition or provision contained in this Agreement to be performed by such other Party shall be deemed a waiver of a similar or dissimilar condition or provision at the same or any prior or subsequent time. Any waiver must be in writing and signed by the Executive or an authorized officer of the Company, as the case may be.

18. SECTION 409A.

(a) It is the Parties’ intent that all payments pursuant to this Agreement be exempt from, or compliant with, Section 409A of the Code (“ Section 409A ”) and that this Agreement be interpreted acccordingly.

(b) The following rules shall apply with respect to distribution of the payments, if any, to be provided to the Executive under the Agreement, as applicable:

(i) It is intended that each installment of the payments under the Agreement shall be treated as a separate “payment” for purposes of Section 409A. Neither the Company nor the Executive shall have the right to accelerate or defer the delivery of any such payments except to the extent specifically permitted or required by Section 409A.

 

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(ii) If, as of the date of the Executive’s “separation from service” from the Company, the Executive is not a “specified employee” (within the meaning of Section 409A), then each installment of the payments shall be made on the dates and terms otherwise set forth in this Agreement with respect to such payments.

(iii) If, as of the date of the Executive’s “separation from service” from the Company, the Executive is a “specified employee” (within the meaning of Section 409A), then:

(A) Each payment due under the Agreement that, in accordance with the dates and terms set forth herein, will in all circumstances, be paid within the short-term deferral period (as defined under Section 409A) shall be treated as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent permissible under Section 409A and shall be paid on the dates and terms otherwise set forth in the Agreement with respect to such payments; and

(B) Each payment due under the Agreement that is not described in Section 18(b)(iii)(A) and that would, absent this subsection, be paid within the six-month period following the Executive’s “separation from service” from the Company and on account of the Executive’s “separation from service” shall not be paid until the date that is six months and one day after such separation from service (or, if earlier, the Executive’s death), with any such payments that are required to be delayed being accumulated during the six-month period and paid in a lump sum on the date that is six months and one day following the Executive’s separation from service and any subsequent payments, if any, being paid in accordance with the dates and terms otherwise set forth herein; provided, however, that the preceding provisions of this sentence shall not apply to any payment if and to the maximum extent that that such payment is deemed to be paid under a separation pay plan that does not provide for a deferral of compensation by reason of the application of Treasury Regulation 1.409A-1(b)(9)(iii) (relating to separation pay upon an involuntary separation from service). Any payment that qualifies for the exception under Treasury Regulation Section 1.409A-1(b)(9)(iii) must be paid no later than the last day of the Executive’s second taxable year following the taxable year in which the separation from service occurs.

(c) Subject to this Section 18, any payments that may be due under the Agreement on account of termination of employment shall begin only upon the date of the Executive’s “separation from service” (determined as set forth below) which occurs on or after the termination of the Executive’s employment. The determination of whether and when the Executive’s separation from service from the Company has occurred shall be made and in a

 

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manner consistent with, and based on the presumptions set forth in, Treasury Regulation Section 1.409A-1(h). Solely for purposes of this Section 18(c), “Company” shall include all persons with whom the Company would be considered a single employer under Section 414(b) and 414(c) of the Code.

(d) All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A to the extent that such reimbursements or in-kind benefits are subject to Section 409A, including, where applicable, the requirements that (i) any reimbursement is for expenses incurred during the Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement is not subject to set off or liquidation or exchange for any other benefit.

(e) The Company makes no representation or warranty and shall have no liability to the Executive or to any other Person if any of the provisions of the Agreement are determined to constitute deferred compensation subject to Section 409A but that do not satisfy an exemption from, or the conditions of, that section.

19. SEVERABILITY.

In the event that any provision or portion of this Agreement shall be determined to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by law so as to achieve the purposes of this Agreement.

20. SURVIVORSHIP.

The respective rights and obligations of the Parties hereunder shall survive any termination of this Agreement to the extent necessary to achieve the intended preservation of such rights and obligations. In particular, the provisions of Sections 10, 11, 12 and 13 shall remain in effect as long as is necessary to give effect thereto.

21. REFERENCES.

In the event of the Executive’s death or a judicial determination of his incompetence, reference in this Agreement to the Executive shall be deemed, where appropriate, to refer to his beneficiary, estate or other legal representative.

22. GOVERNING LAW.

This Agreement shall be governed in accordance with the laws of the Commonwealth of Massachusetts without reference to its principles of conflict of laws.

 

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23. WITHHOLDING.

The Company shall be entitled to withhold from any payment to the Executive any amount of tax withholding required by applicable law at the times dictated by applicable law.

24. HEADINGS.

The headings of the sections contained in this Agreement are for convenience only and shall not be deemed to control or affect the meaning or construction of any provision of this Agreement.

25. NOTICES.

All notices and other communications required or permitted hereunder shall be in writing and shall be deemed given when (a) delivered personally, (b) delivered by certified or registered mail, postage prepaid, return receipt requested or (c) delivered by overnight courier (provided that a written acknowledgment of receipt is obtained by the overnight courier) to the Party concerned at the address indicated below or to such changed address as such Party may subsequently give such notice of:

If to the Company :

Endurance International Group Holdings, Inc.

10 Corporate Drive

Suite 300

Burlington, MA 01803

Attention: General Counsel

If to the Executive , to the most recent address shown on the records of the Company.

26. ENTIRE AGREEMENT.

This Agreement contains the entire understanding and agreement between the Parties concerning the subject matter hereof and supersedes in all respects any prior agreements, understandings, discussions, negotiations and undertakings, whether written or oral, between the Parties with respect thereto. Under no circumstances shall the Executive be entitled to any other payments or benefits of any kind, except for the payments and benefits described or referred to herein, unless otherwise agreed to the Company and the Executive in writing.

27. COUNTERPARTS.

This Agreement may be executed in two or more counterparts, each of which will be deemed an original.

 

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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.

 

ENDURANCE INTERNATIONAL GROUP

HOLDINGS, INC.

By:   /s/ Hari Ravichandran
Name: Hari Ravichandran
Title: Chief Executive Officer

 

EXECUTIVE:
/s/ David C. Bryson
David C. Bryson

[Signature Page for Employment Agreement]


Schedule I

Existing Board of Directors


EXHIBIT A

Form of Release

[ The language in this Release may change, in the discretion of the Company, based on legal developments and evolving best practices; this form is provided as an example of what will be included in the final Release document. ]

SEPARATION AND RELEASE AGREEMENT

1. I, (Insert Name) , hereby acknowledge that my employment by Endurance International Group (the “Company”) has ended as of (Insert Date) , (the “Termination Date”). I further acknowledge that I have already received all compensation of any type whatsoever to which I am entitled through my Termination Date from the Company or from any other “Released Party” (as that term is defined in Paragraph 4 below), including, without limitation, all wages, overtime, bonuses, commissions, and accrued but unused vacation pay.

2. Severance Benefit . In exchange for the Company’s receipt of this Release, signed by me, and provided I do not revoke this Release in the manner specified in Paragraph 14 herein within seven (7) days after signing it, the Company will provide to me by mail the following severance benefit (the “Severance Benefit”) following my execution and return of this Release and the ending of the revocation period: (Insert Dollar Amount) which is an amount equal to (Insert Equivalent) of my current base salary, subject to tax withholding, customary deductions and other deductions required by law. I agree and acknowledge that this Severance Benefit constitutes a payment or benefit to which I would not be entitled if I did not sign this Release. I understand that information will be provided to me about my right to continue health benefits through the Company at my expense through the federal law known as COBRA.

3. Release of Claims . In consideration of the Severance Benefit, I, on behalf of myself, my heirs, assigns, legal representatives, successors in interest, and any person claiming through me or any of them, hereby completely release and forever discharge all “Released Parties” (as that term is defined in paragraph 4 below) from any and all claims, demands or liabilities whatsoever, based on any act or omission occurring before my signing of this Release, including, without limitation, any claims, demands or liabilities arising out of my employment with any Released Party or the ending of such employment. The matters released include, but are not limited to, any claim arising under: Title VII of the Civil Rights Act of 1964; the Federal Civil Rights Act of 1991; the Worker Adjustment and Retraining Notification Act of 1988; the Americans with Disabilities Act of 1990; the Federal Family and Medical Leave Act of 1993; the Equal Pay Act; the Ralph Civil Rights Act; the Employee Retirement Income Security Act of 1974; the Age Discrimination in Employment Act; the Older Workers’ Benefit Protection Act; the Massachusetts General Laws; the Massachusetts Fair Employment Practice Act; the Massachusetts Wage Act; any federal, state or local law, regulation or ordinance regulating wages, hours and working conditions; any action based on any alleged breach of contract, breach of the covenant of good faith and fair dealing, fraud, fraudulent inducement or any other tort; any violation of public policy or statutory or constitutional rights; any claim for severance pay, bonus or similar benefit, sick leave, pension, retirement, vacation pay, holiday pay, stock options, car allowance, life insurance, health or medical insurance, or any other fringe benefit; any claim for


reimbursement of health or medical costs; and any claim for disability. Notwithstanding anything in this release to the contrary, this release shall not effect a release of any claim I may have for post-termination rights or benefits under my employment agreement and any claim for indemnification from the Company under my employment agreement or otherwise.

4. “ Released Parties” Defined . For purposes of this Release, the term “Released Parties” means the Company, and each of its respective parents, subsidiaries and affiliates, and all of the current and former employees, officers, directors, trustees, agents, representatives, shareholders, attorneys, accountants, partners, insurers, advisors, partnerships, joint venturers, successors and assigns, employee benefit programs (and the trustees, administrators, fiduciaries and insurers of such programs) of any of them, in their individual and official capacities, and the respective heirs and personal representatives of any of them, and any other persons acting by, through, under or in concert with any of them.

5. Release of Unknown Claims . I understand and agree that this Release extinguishes all claims I have ever had or now have against any Released Party, whether such claim is currently known or unknown, vested or contingent, foreseen or unforeseen. I understand that if any fact concerning any matter covered by this Release is found hereafter to be other than or different from the facts I now believe to be true, I expressly accept and assume that this Release shall be and remain effective, notwithstanding such difference in the facts.

6. No Claims . I agree that I will not file, nor encourage or knowingly permit another to file, any claim, charge, action, or complaint (collectively “Claim”) concerning any matter released herein. If I have previously filed any such Claim, I agree to take all steps necessary to cause it to be withdrawn without delay; provided, however, that nothing in this Release prevents me from filing a Claim with, cooperating with, or participating in any proceeding before the Equal Employment Opportunity Commission or a state fair employment practices agency (except that I acknowledge that I may not recover any monetary benefits in connection with any such Claim, and I agree that if any such Claim is filed on my behalf, I shall take all reasonable steps necessary to refuse any damages or individualized relief in connection therewith); and further provided that nothing in this Release shall limit or restrict my right to (a) challenge the validity of this Release under the ADEA, or (b) prosecute any ADEA claim if such claim arises after I sign this Release, and no such action on my part shall be deemed to violate this provision or any other provision of this Release.

7. Release Confidential . I represent and agree that I will keep the terms of this Release, including the amount of the Severance Benefit, completely confidential, and that I will not disclose such information to anyone, except as follows: (a) to my immediate family and professional representatives (provided they agree to be bound by this confidentiality provision); (b) to any governmental taxing authority; and (c) in response to subpoena or other legal process, provided that before making such disclosure, I shall give the Company as much prior notice thereof as practical to enable the Company to seek, at its sole discretion, an appropriate order preventing such disclosure.

8. Continuing Obligations . I acknowledge and reaffirm my obligation to keep confidential and not to use or disclose any and all non-public information concerning the Company that I acquired during the course of my employment with the Company, including, but not limited to, any non-public information concerning the Company’s business affairs, business


prospects, and financial condition. I further acknowledge and reaffirm my confidentiality obligations set forth in the Non-Disclosure Agreement and my continuing obligations with respect to non-competition, non-solicitation, non-disparagement, and Company work product set forth in Sections 11 and 12 of my Employment Agreement, all of which remain in full force and effect.

9. Company Affiliation . I agree that, following the Termination Date, I will not hold myself out as an officer, employee, or otherwise as a representative of the Company, and I agree to update any directory information that indicates I am currently affiliated with the Company. Without limiting the foregoing, I confirm that, within five (5) days following the Termination Date, I will update any and all social media accounts (including, without limitation, LinkedIn, Facebook, Twitter and Four Square) to reflect that I am no longer employed by or associated with the Company.

10. Return of Company Property . I confirm that I have returned to the Company all keys, files, records (and copies thereof), equipment (including, but not limited to, computer hardware, software and printers, flash drives and storage devices, wireless handheld devices, cellular phones, smartphones, tablets, etc.), Company identification, and any other Company-owned property in my possession or control and have left intact all electronic Company documents, including but not limited to those that I developed or helped to develop during my employment. I further confirm that I have cancelled all accounts for my benefit, if any, in the Company’s name, including but not limited to, credit cards, telephone charge cards, cellular phone accounts, and computer accounts.

11. Entire Agreement . This Release constitutes the entire agreement between the Company and me as to any matter referred to in this Release. This Release supersedes all other agreements between the Company and me. In executing this Release, I am not relying upon any agreement, representation, written or oral statement, understanding, omission, or course of conduct that is not expressly set forth in this Release.

12. Governing Law; Arbitration . This Release shall be governed by and enforced in accordance with the laws of the State of Massachusetts, without regard to its conflicts of law principles. I acknowledge that I previously agreed, pursuant to Section 14 of my Employment Agreement, to arbitrate any claim relating to or arising out of my employment with the Company, and I acknowledge and affirm that such provision survives my termination from employment with the Company. For clarification, but not limitation, I further acknowledge and agree that any controversy or claim arising out of or in any way relating to this Release or the breach thereof shall also be settled by final and binding arbitration, consistent with the terms, procedures, and exceptions set forth in Section 14 of the Employment Agreement. I understand and agree that this arbitration provision shall not apply to claims brought in a court of competent jurisdiction by either me or any Released Party to compel arbitration under this provision, to enforce an arbitration award or to obtain preliminary injunctive and/or other equitable relief in support of claims that may be prosecuted in an arbitration by me or any Released Party.

13. Successors and Assigns . This Release will bind and inure to the benefit of the successors, assigns, heirs and personal representatives of the Released Parties and me.


14. Review Period . I acknowledge that prior to signing this Release, I have been advised to consult with an attorney of my choice to review the Release, and have taken such opportunity to the extent I wish to do so. I further acknowledge that the Company has given me at least twenty-one (21) days to decide whether I wish to execute this Release.

15. Revocation . I understand that I may revoke this Release at any time during the seven (7) days after I sign it (the “Last Revocation Day”), and that the Release shall not become effective until the end of that revocation period. I understand and agree that by executing, timely returning, and not revoking this Release, I am waiving any and all rights or claims I might have under the Age Discrimination in Employment Act, as amended by the Older Workers Benefit Protection Act, and that I have received consideration beyond that to which I was previously entitled. In the event I choose to revoke the Release, such revocation must be by means of a writing signed by me and delivered within the seven (7) day revocation period as follows: via facsimile or hand-delivery to Pam Clark at Endurance International Group., 10 Corporate Drive #300, Burlington, Massachusetts 01803 or by facsimile number (602) 258-0588. If I revoke this Release via facsimile, I agree that my facsimile signature will be valid and binding for all purposes.

16. Modification in Writing . No provision of this Release may be modified, amended or waived except by a writing signed by me and an authorized representative of the Company.

17. No Admission of Liability . This Release shall not at any time or for any purpose be deemed an admission of liability of any kind by any Released Party. This Release may not be used or introduced as evidence in any legal proceeding, except to enforce or challenge its terms.

18. Headings . The headings, titles and captions contained in this Release are inserted only for the convenience of the parties and for reference, and in no way define, limit, extend or describe the scope of this Release or the intent of any provision hereof.

19. Severability . If any provision of this Release shall, for any reason, be held by a court or other tribunal of competent jurisdiction to be invalid, void or unenforceable, in whole or in part, such adjudication shall in no way affect any other provisions of this Release or the validity or enforcement of the remainder of this Release, and any provision thus affected shall itself be modified only to the extent necessary to bring the provision within the applicable requirements of the law.

20. Timely Execution . To receive the Severance Benefit, I must sign this Release on or after my Last Day Worked, and return it to the Company within twenty-one (21) days of my Last Day Worked, as follows: hand delivery or first-class mail to Pam Clark at Endurance International Group., 10 Corporate Drive #200, Massachusetts 01803 or by facsimile number (602) 258-0588.

 

Sincerely,

 

The Endurance International Group, Inc.

By:    
Its:    


EMPLOYEE’S ACCEPTANCE OF RELEASE

I have read this Release and I understand all of its terms. I acknowledge and agree that this Release is executed voluntarily, without coercion, and with full knowledge of its significance. I further acknowledge that I have been given twenty-one (21) days during which to decide whether to execute this Release, and have used that time to the extent I wish to do so. I understand that my execution of this Release constitutes a full, unconditional general release of any and all known or unknown claims that I may have against any Released Party, despite the fact that I may become aware of claims in the future which I did not consider prior to signing this Release.

 

Date:            
        (Insert Employee Name)
       

Exhibit 10.10

ENDURANCE INTERNATIONAL GROUP HOLDINGS, INC.

Performance-Based Restricted Stock Agreement

2013 Stock Incentive Plan

This Restricted Stock Agreement (this “ Agreement ”) is made as of the Agreement Date between Endurance International Group Holdings, Inc., a Delaware corporation (the “ Company ”), and the Recipient.

NOTICE OF GRANT

 

I. Agreement Date

 

Date:    February 16, 2016

 

II. Recipient Information

 

Recipient:   

 

III. Grant Information

 

Number of Shares of

Restricted Stock

 

 

IV. Earned Shares

 

Earned Shares    Award Shares earned under Exhibit C – Performance Vesting Conditions

 

V. Scheduled Vesting Date

 

Vesting Date    March 31, 2017

This Agreement includes this Notice of Grant and the following Exhibits, which are expressly incorporated by reference in their entirety herein:

Exhibit A – General Terms and Conditions

Exhibit B – Definitions

Exhibit C – Performance Vesting Conditions

Exhibit D – Automatic Sales Instructions

Exhibit E – 2013 Stock Incentive Plan

IN WITNESS WHEREOF, the parties hereto have executed this Agreement.

 

ENDURANCE INTERNATIONAL GROUP

HOLDINGS, INC.

    RECIPIENT
 

 

     

 

Name:     Name:
Title:     Date:
Date:    


Performance-Based Restricted Stock Agreement

2013 Stock Incentive Plan

EXHIBIT A

GENERAL TERMS AND CONDITIONS

The terms and conditions of the award of shares of restricted common stock, $0.0001 par value per share, of the Company (the “ Restricted Shares ”) made to the Recipient, as set forth on the cover page of this Agreement, and subject to the terms and conditions set forth in the 2013 Stock Incentive Plan (the “ Plan ”) are as follows:

1. Award of Restricted Stock .

(a) The Company hereby grants to the Recipient, effective as of the Agreement Date (as set forth on the Notice of Grant), an Award of Restricted Stock for the number of Restricted Shares set forth on the Notice of Grant (the “ Award Shares ”), on the terms and conditions set forth in this Agreement and the Plan.

(b) The Recipient agrees that the Award Shares shall be subject to the forfeiture provisions set forth in Section 3 of this Agreement and the restrictions on transfer set forth in Section 4 of this Agreement.

2. Earned Shares; Vesting .

(a) The Recipient shall earn a non-forfeitable right to Award Shares as provided in this Section 2. Except as provided below under Section 2(b) or 2(c) below, the Recipient shall only have a non-forfeitable right to Award Shares to the extent that (i) the Award Shares have become Earned Shares by satisfying the performance vesting conditions set forth in Exhibit C – Performance Vesting Conditions and (ii) the Recipient is employed by the Company on the vesting date set forth on the Notice of Grant (the “ Vesting Date ”). An Award Share that the Recipient has earned a non-forfeitable right to under any provision of this Section 2 is hereinafter referred to as a “ Vested Earned Share .”

(b) If the Recipient’s employment with the Company is terminated by the Company without Cause, by the Recipient for Good Reason or due to death or Disability prior to the Vesting Date, then the number of Award Shares that are eligible to become Earned Shares based on the achievement of the performance goals set forth on Exhibit C – Performance Vesting Conditions , as determined by the Compensation Committee of the Board of Directors (the “ Committee ”) following the end of the Performance Period but no later than the Vesting Date, shall be pro-rated based on the number of days during which the Recipient was employed by the Company during the Vesting Period. For the avoidance of doubt, any Award Shares that become Earned Shares following the application of this Section 2(b) shall become Vested Earned Shares on the Vesting Date, notwithstanding the Recipient’s not being employed by the Company on such date.


(c) If the Recipient is employed by the Company upon a Change in Control that occurs on or prior to the Vesting Date, a number equal to 80% of the Award Shares shall become Vested Earned Shares immediately prior to such Change in Control and any remaining Award Shares shall be forfeited immediately and automatically to the Company in accordance with Section 3 hereof.

3. Forfeiture

Any Award Share that (i) does not become a Vested Earned Share on the Vesting Date as a result of the pro-rated reduction in the number of Award Shares eligible to become Earned Shares (after applying Section 2(b) above) or (ii) has not otherwise become a Vested Earned Share on the Vesting Date or, if earlier, a Change in Control (after applying Section 2(c) above), shall be forfeited immediately and automatically to the Company. Any Award Shares that are forfeited under this Section 3 shall revert to the Company without payment of any consideration to the Recipient, effective as of such event that results in the forfeiture. The Recipient shall have no further rights with respect to any forfeited Award Shares.

4. Restrictions on Transfer . The Recipient shall not sell, assign, transfer, pledge, hypothecate or otherwise encumber, by operation of law or otherwise an Award Share or any interest therein until it has become a Vested Earned Share.

5. Issuance and Custody of Certificates .

(a) The Company shall cause Award Shares to be issued in the Recipient’s name in such a manner as the Committee, in its sole discretion, deems appropriate, including by book-entry or direct registration (including transaction advices) or the issuance of a stock certificate or certificates, which certificate or certificates shall be held by the Secretary of the Company or a custodian designated by the Secretary for the Recipient’s benefit until such time as the Award Shares are forfeited to the Company or the restrictions applicable to the Award Shares lapse (i.e., an Award Share becomes a Vested Earned Share). The Award Shares shall be restricted from transfer and shall be subject to an appropriate stop-transfer order. If any certificate is issued, the certificate shall bear a legend that complies with applicable law and makes appropriate reference to the restrictions applicable to the Award Shares. To the extent that ownership of the Award Shares is evidenced by a book-entry registration or direct registration (including transaction advices), such registration shall be notated to evidence the restrictions imposed on such Award Shares.

(b) After any Award Shares become Vested Earned Shares, and following payment of the applicable withholding taxes pursuant to Section 7 hereof, the Company shall promptly cause such Vested Earned Shares (less any shares withheld to pay taxes) to be reissued in the Recipient’s name or in the name of the Recipient’s beneficiary or estate, as the case may be, in such a manner as the Committee, in its sole discretion, deems appropriate, including by book-entry or direct registration (including transaction advices) or the issuance of a stock certificate or certificates, free of the restrictions and/or legend described in this Section 5.


6. Rights as a Shareholder . Except as otherwise provided in this Agreement, for so long as the Recipient is the registered owner of the Award Shares, the Recipient shall have all rights as a shareholder with respect to the Award Shares, whether vested or unvested, including, without limitation, rights to vote the Award Shares and act in respect of the Award Shares at any meeting of shareholders; provided that the payment of dividends on unvested Award Shares shall be deferred until such time as the Award Shares become Vested Earned Shares and with respect to any such Vested Earned Shares, any deferred dividends shall be paid to the Recipient within 30 days following the Vesting Date.

7. Tax Matters .

(a) Acknowledgements . The Recipient acknowledges that he or she is responsible for obtaining the advice of his own tax advisors with respect to the Award Shares and is relying solely on such advisors and not on any statements or representations of the Company or any of its agents with respect to the tax consequences relating to the Award Shares. The Recipient understands that the Recipient (and not the Company) shall be responsible for the Recipient’s tax liability that may arise in connection with the acquisition, vesting and/or disposition of the Award Shares.

(b) Withholding . The Recipient acknowledges and agrees that the Company has the right to deduct from payments of any kind otherwise due to the Recipient any federal, state, local or other taxes of any kind required by law to be withheld with respect to the Vested Earned Shares. At such time as the Recipient is not aware of any material nonpublic information about the Company or the Common Stock, the Recipient shall execute the instructions set forth in Exhibit D attached hereto (the “ Automatic Sale Instructions ”) as the means of satisfying such tax obligation. If the Recipient does not execute the Automatic Sale Instructions prior to the Award Shares becoming Vested Earned Shares, then the Recipient agrees that if under applicable law the Recipient will owe taxes at such time on the Vested Earned Shares, the Company shall be entitled to immediate payment from the Recipient of the amount of any tax required to be withheld by the Company. The Company shall not take any of the actions described in Section 5(b) hereof until it is satisfied that all required withholdings have been made.

8. Miscellaneous .

(a) Authority of Board . In making any decisions or taking any actions with respect to the matters covered by this Agreement, the Board of Directors (the “ Board ”) or any one or more of the committees or subcommittees of the Board to which the Board delegates its powers in accordance with the terms of the Plan shall have all of the authority and discretion, and shall be subject to all of the protections, provided for in the Plan. All decisions and actions by the Board or any one or more of its committees or subcommittees to which its powers have been delegated with respect to this Agreement shall be made in its discretion and shall be final and binding on the Recipient.

(b) No Right to Continued Service . The Recipient acknowledges and agrees that, notwithstanding the fact that the vesting of the Award Shares is contingent upon continued employment with the Company (except as otherwise provided in this Agreement), this Agreement does not constitute an express or implied promise of continued service or confer upon the Recipient any rights with respect to continued service by the Company.


(c) Governing Law . This Agreement shall be construed, interpreted and enforced in accordance with the internal laws of the State of Delaware, without regard to any applicable conflicts of law provisions.

(d) Recipient’s Acknowledgments . The Recipient acknowledges that he or she has read this Agreement, has received and read the Plan, and understands the terms and conditions of this Agreement and the Plan.


EXHIBIT B

DEFINITIONS

Any capitalized term not defined in this Exhibit B or elsewhere in this Agreement shall have the same meaning as is ascribed thereto in the Plan.

Cause shall have the meaning set forth in the Employment Agreement.

Change in Control ” shall have the meaning set forth in the Employment Agreement.

Disability ” shall have the meaning set forth in the Employment Agreement.

Earned Shares ” shall be the number of Award Shares that satisfy the performance vesting conditions applicable to this award in accordance with Exhibit C – Performance Vesting Conditions , as determined by the Committee following the end of the Performance Period but no later than the Vesting Date.

Employment Agreement ” means the employment agreement between the Company and Recipient dated [            ], as may be amended from time to time.

Good Reason ” shall have the meaning set forth in the Employment Agreement.

Performance Period ” shall mean the period from January 1, 2016 to December 31, 2016.

Vesting Period ” shall mean the period from January 1, 2016 to March 31, 2017.


EXHIBIT C

PERFORMANCE VESTING CONDITIONS

A. Performance Measures Generally

The Award Shares (or such lesser number of Restricted Shares subject to this Agreement as is determined in accordance with Section 2(b)) are eligible to become Earned Shares solely based upon the achievement during the Performance Period, as determined by the Committee following the end of the Performance Period but no later than the Vesting Date, of specified levels of (i) Adjusted Revenue, (ii) Adjusted EBITDA and (iii) Adjusted Free Cash Flow (each, a “ Performance Measure ”) of the Company’s Constant Contact brand as set forth in B. below. For this purpose:

Adjusted Revenue ” shall mean: revenue from Constant Contact, Inc., including its direct and indirect subsidiaries, calculated in accordance with U.S. generally accepted accounting principles, for the Performance Period, assuming that the Company’s acquisition of Constant Contact, Inc. had taken place on January 1, 2016, adjusted to exclude the impact of any fair value adjustments to deferred revenue resulting from acquisitions.

Adjusted EBITDA ” shall mean: net income (loss) from Constant Contact, Inc., including its direct and indirect subsidiaries, for the Performance Period, assuming that the Company’s acquisition of Constant Contact, Inc. had taken place on January 1, 2016, plus (i) changes in deferred revenue, depreciation, amortization, stock-based compensation expense, loss of unconsolidated entities, net loss on sale of assets, expenses related to integration of acquisitions and restructurings, transaction expenses and charges, certain legal advisory expenses, interest expense and income tax expense, less (ii) earnings of unconsolidated entities, net gain on sale of assets and other non-recurring gains.

Adjusted Free Cash Flow ” shall mean: Adjusted EBITDA, less (i) cash paid for restructuring charges and capital expenditures, plus or minus (ii) the change in working capital.

B. Performance Objectives

The table below sets forth the target for each Performance Measure:

 

Performance Measure

   Target  

Adjusted Revenue

   $                

Adjusted EBITDA

   $     

Adjusted Free Cash Flow

   $     

The “ Attainment Factor ” for each Performance Measure shall be the percentage of the target Performance Measure actually achieved, which percentage may, for the avoidance of doubt, exceed 100%.


In calculating the aggregate achievement of the Performance Measures, the Attainment Factor of each Performance Measure shall be weighted as follows: (i) Adjusted Revenue will be weighted 50%, (ii) Adjusted EBITDA will be weighted 25%, and (iii) Adjusted Free Cash Flow will be weighted 25%. The “ Aggregate Achievement Percentage ” shall therefore be equal to the sum of:

(i) the product of (x) 50% and (y) the Adjusted Revenue Attainment Factor for the Performance Period; and

(ii) the product of (x) 25% and (y) the Adjusted EBITDA Attainment Factor for the Performance Period; and

(iii) the product of (x) 25% and (y) the Adjusted Free Cash Flow Attainment Factor for the Performance Period.

C. Calculation of Earned Shares

The percentage of Award Shares (or such lesser number of Restricted Shares subject to this Agreement as is determined in accordance with Section 2(b)) that become Earned Shares shall be calculated by reference to the following chart.

 

Aggregate Achievement Percentage

   Earned
Shares
 

Less than 90%

     0

90%

     40

95%

     76

100%

     80

Greater than or equal to 105%

     100

In calculating the number of Earned Shares, achievement will be linearly interpolated between the percentages set forth in the tables above. Any fractional number of Restricted Shares resulting from the application of the percentages set forth below shall be rounded to the nearest whole number of Restricted Shares, provided, however, that in no event may the number of Earned Shares calculated thereby exceed the number of Award Shares subject to this Agreement.


EXHIBIT D

AUTOMATIC SALES INSTRUCTIONS

The undersigned hereby consents and agrees that any taxes due with respect to any Vested Earned Shares shall be paid through an automatic sale of shares as follows:

(a) Upon the vesting of any Award Shares in accordance with Section 2, the Company shall arrange for the sale of such number of Vested Earned Shares as is sufficient to generate net proceeds sufficient to satisfy the Company’s minimum statutory withholding obligations with respect to the income recognized by the Recipient upon the vesting of the Award Shares (based on minimum statutory withholding rates for all tax purposes, including payroll and social security taxes, that are applicable to such income), and the Company shall retain such net proceeds in satisfaction of such tax withholding obligations.

(b) The Recipient hereby appoints the Chief Executive Officer, Chief Financial Officer, Chief Administrative Officer and Chief Legal Officer of the Company, and either of them acting alone and with full power of substitution, to serve as his or her attorneys in fact to sell the Recipient’s Common Stock in accordance with this Exhibit D. The Recipient agrees to execute and deliver such documents, instruments and certificates as may reasonably be required in connection with the sale of the shares of Common Stock pursuant to this Exhibit D.

(c) The Recipient represents to the Company that, as of the date hereof, he or she is not aware of any material nonpublic information about the Company or the Common Stock. The Recipient and the Company have structured this Agreement, including this Exhibit D, to constitute a “binding contract” relating to the sale of Common Stock, consistent with the affirmative defense to liability under Section 10(b) of the Securities Exchange Act of 1934 under Rule 10b5-1(c) promulgated under such Act.

The Company take any of the actions described in Section 5(b) with respect to any Vested Earned Shares until it is satisfied that all required withholdings have been made.

 

 

 

Recipient Name:

 

Date:    


EXHIBIT E

2013 STOCK INCENTIVE PLAN

Exhibit 10.11

Turn Key Datacenter Lease for Premises

In a Multi-Tenant Datacenter

 

 

3105 ALFRED STREET

 

 

TURN KEY DATACENTER LEASE

Between

DIGITAL ALFRED, LLC

as Landlord

and

CONSTANT CONTACT, INC.

as Tenant

Dated

December 31, 2010


TABLE OF CONTENTS

 

             Page  

1.

 

LEASE OF TENANT SPACE

     1   
 

1.1

 

Tenant Space

     1   
 

1.2

 

Condition of Tenant Space

     1   
 

1.3

 

Datacenter Connection Area

     1   
 

1.4

 

Relocation Right

     1   
 

1.5

 

Quiet Enjoyment; Access

     1   
 

1.6

 

Common Area

     1   

2.

 

TERM

     2   
 

2.1

 

Term

     2   
 

2.2

 

Delivery of Tenant Space

     2   
 

2.3

 

Extension Options

     3   

3.

 

BASE RENT AND OTHER CHARGES

     4   
 

3.1

 

Base Rent

     4   
 

3.2

 

Installation Fee

     4   
 

3.3

 

Payments Generally

     4   
 

3.4

 

Late Payments

     5   
 

3.5

 

Utilities

     5   

4.

 

TAXES

     6   
 

4.1

 

Taxes - Equipment

     6   
 

4.2

 

Taxes - Other

     6   

5.

 

INTENTIONALLY DELETED

     7   

6.

 

PERMITTED USE; COMPLIANCE WITH RULES AND LAWS; HAZARDOUS MATERIALS

     7   
 

6.1

 

Permitted Use

     7   
 

6.2

 

Datacenter Rules and Regulations

     7   
 

6.3

 

Compliance with Laws; Hazardous Materials

     7   
 

6.4

 

Electricity Consumption Threshold

     8   
 

6.5

 

Maximum Structural Load

     9   

7.

 

ACCESS CONTROL; LANDLORD’S ESSENTIAL SERVICES; INTERRUPTION OF SERVICES; SAS 70

     9   
 

7.1

 

Access Control

     9   
 

7.2

 

Landlord’s Essential Services

     9   
 

7.3

 

Interruption of Services

     9   
 

7.4

 

SAS-70 Reporting

     10   
 

7.5

 

Self-Help Restriction

     10   

 

-i-


TABLE OF CONTENTS

(continued)

 

              Page  

8.

 

MAINTENANCE; ALTERATIONS; REMOVAL OF TENANT’S PERSONAL PROPERTY

     10   
 

8.1

  

Landlord’s Maintenance

     10   
 

8.2

  

Tenant’s Maintenance

     11   
 

8.3

  

Alterations

     11   
 

8.4

  

Removal of Tenant’s Personal Property

     11   

9.

 

CASUALTY EVENTS; TAKINGS; INSURANCE

     12   
 

9.1

  

Casualty Events; Takings

     12   
 

9.2

  

Tenant’s Insurance

     13   
 

9.3

  

Landlord’s Insurance

     13   

10.

 

TRANSFERS

     13   
 

10.1

  

Restrictions on Transfers; Landlord’s Consent

     13   
 

10.2

  

Notice to Landlord

     14   
 

10.3

  

Landlord’s Recapture Rights

     14   
 

10.4

  

No Release; Subsequent Transfers

     14   
 

10.5

  

Colocation

     14   
 

10.6

  

Excess Rent

     14   

11.

 

ESTOPPEL CERTIFICATES

     14   

12.

 

SUBORDINATION AND ATTORNMENT; HOLDER RIGHTS

     14   
 

12.1

  

Subordination and Attornment

     14   
 

12.2

  

Holder Protection

     15   
 

12.3

  

SNDA

     15   

13.

 

SURRENDER OF TENANT SPACE; HOLDING OVER

     15   
 

13.1

  

Tenant’s Method of Surrender

     15   
 

13.2

  

Disposal of Tenant’s Personal Property

     15   
 

13.3

  

Holding Over

     15   
 

13.4

  

Survival

     16   

14.

 

WAIVERS; INDEMNIFICATION; CONSEQUENTIAL DAMAGES; LIENS

     16   
 

14.1

  

Waivers

     16   
 

14.2

  

Indemnification

     16   
 

14.3

  

Consequential Damages

     18   
 

14.4

  

Liens

     18   

15.

 

TENANT DEFAULT

     18   
 

15.1

  

Events of Default By Tenant

     18   
 

15.2

  

Remedies

     19   

 

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TABLE OF CONTENTS

(continued)

 

              Page  

16.

 

LANDLORD’S LIABILITY

     19   
 

16.1

  

Landlord Default; Tenant’s Remedies

     19   
 

16.2

  

Landlord’s Liability

     20   
 

16.3

  

Transfer of Landlord’s Interest

     20   

17.

 

MISCELLANEOUS

     20   
 

17.1

  

Severability

     20   
 

17.2

  

No Waiver

     21   
 

17.3

  

Attorneys’ Fees and Costs

     21   
 

17.4

  

Waiver of Right to Jury Trial

     21   
 

17.5

  

Headings; Time; Survival

     21   
 

17.6

  

Notices

     21   
 

17.7

  

Governing Law; Jurisdiction

     21   
 

17.8

  

Incorporation; Amendment; Merger

     21   
 

17.9

  

Brokers

     22   
 

17.10

  

Examination of Lease; Binding on Parties

     22   
 

17.11

  

Recordation

     22   
 

17.12

  

Authority

     22   
 

17.13

  

Successors and Assigns

     22   
 

17.14

  

Force Majeure

     22   
 

17.15

  

No Partnership or Joint Venture; No Third Party Beneficiaries

     22   
 

17.16

  

Access By Landlord

     22   
 

17.17

  

Rights Reserved by Landlord

     23   
 

17.18

  

Counterparts; Delivery by Facsimile or E-mail

     24   
 

17.19

  

Confidentiality

     24   
 

17.20

  

Incorporation of Schedules and Exhibits

     24   
 

17.21

  

Financial Statements

     24   
 

17.22

  

Master Lease

     24   

 

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SCHEDULE “1”

CERTAIN DEFINED TERMS

ACM ” shall mean and refer to asbestos, asbestos-containing materials or presumed asbestos-containing materials.

Additional Rent ” shall mean and refer to all amounts (other than Base Rent) payable by Tenant to Landlord pursuant to this Lease, whether or not denominated as such.

Affiliate Transfer ” shall mean and refer to an assignment by Tenant of this Lease to a Tenant Affiliate where (x) Tenant gives Landlord prior written notice of the name of such Tenant Affiliate, and (y) the applicable Tenant Affiliate assumes, in writing, for the benefit of Landlord, all of Tenant’s obligations under this Lease.

Alterations ” shall mean and refer to any alterations, additions, improvements or replacements to the Tenant Space, or any other portion of the Building or Property performed by or on behalf of Tenant or any other Tenant Party.

Applicable Laws ” shall mean and refer to (a) all laws, ordinances, building codes, rules, regulations, orders and directives of any governmental authority now or hereafter having jurisdiction over the Property, (b) all covenants, conditions and restrictions now or hereafter affecting the Property, and (c) all rules, orders, regulations and requirements of any applicable fire rating bureau or other organization performing a similar function for the Property.

Back-Up Power Specifications ” shall mean and refer to the specific elements of back-up power that are described in Items 2 & 3 of Exhibit “F” , Table A.

Back-Up Power Systems ” shall mean and refer to the specific equipment used by Landlord to meet the Back-Up Power Specifications.

Base Rent ” shall mean and refer to the amounts of Base Rent set forth in Item 8 of the Basic Lease Information.

Building ” shall mean and refer to the Building described in Item 15 of the Basic Lease Information.

Building Systems ” shall mean and refer to the Building and/or Property systems and equipment, including, without limitation, all fire/life safety, electrical, HVAC, plumbing or sprinkler, access control (including, without limitation, Landlord’s Access Control Systems), mechanical, and telecommunications systems and equipment.

Cables ” shall mean and refer to all fiber and/or copper cabling that is placed into the Pathway by Landlord on Tenant’s behalf, or by Tenant and/or by any other Tenant Party.

Casualty-Complete ” shall mean and refer to a Casualty Event that results in the complete destruction of the Building.

Casualty Event ” shall mean and refer to fire, explosion or any other disaster causing damage to the Property, the Building, or the Tenant Space.

Casualty Repair ” shall mean and refer to the repair and reconstruction of the damaged portion(s) of the Building and/or the Tenant Space to substantially the same condition in which they existed immediately prior to a particular Casualty Event.

Casualty Repair Notice ” shall mean and refer to written notice by Landlord to Tenant notifying Tenant of the Repair Period-Estimated.

 

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Chronic Outage ” shall mean and refer to the occurrence of three (3) or more Qualifying Chronic Outages within a twelve (12) consecutive month period.

Chronic Outage Termination Notice ” shall mean and refer to written notice from Tenant to Landlord, delivered within thirty (30) days after the occurrence of a Chronic Outage, that Tenant thereby terminates this Lease.

Claims ” shall mean and refer to all third party claims, actions, suits and proceedings, and all losses, damages, obligations, liabilities, penalties, fines, costs and expenses arising from any such claims, actions, suits, or proceedings, including, without limitation, attorneys’ fees, legal costs, and other costs and expenses of defending against any such claims, actions, suits, or proceedings.

Colocation Activity ” shall mean and refer to the installation, operation and maintenance by a Colocation Party of such Colocation Party’s computer, switch and/or communications equipment in the Tenant Space, and the connection of such equipment with the equipment of other Colocation Parties within the Tenant Space.

Colocation Agreement ” shall mean and refer to a license agreement, by and between Tenant and a Colocation Customer, whereby Tenant provides such Colocation Customer (and its related Colocation Parties) a license for the sole purpose of engaging in Colocation Activities within the Tenant Space.

Colocation Customer ” shall mean and refer to a non-carrier customer of Tenant, who desires to engage in Colocation Activities within the Tenant Space, under and pursuant to a Colocation Agreement.

Colocation Party ” shall mean and refer to any person claiming, directly or indirectly, by, through or under any Colocation Customer, together with the officers, agents, servants and employees of each Colocation Customer.

Commencement Date Conditions ” shall mean and refer to the occurrence of the following:

(a) Landlord has performed the Commissioning of the Premises, which condition shall be deemed to have been satisfied upon Landlord’s receipt of the Commissioning Complete Letter;

(b) Landlord has completed Landlord’s Installations; and

(c) Landlord has delivered the Tenant Space to Tenant (i) free of all tenants and occupants, (ii) in broom-clean condition, (iii) ready for use, as it relates to the requirements of Applicable Laws, for the Permitted Use.

Commencement Date Notice ” shall mean and refer to a notice from Landlord to Tenant, substantially in the form attached hereto as Exhibit “H” , which shall (a) memorialize Landlord’s delivery of the Tenant Space to Tenant, (b) confirm the actual Commencement Date, and, (c) if applicable, confirm the Deemed Commencement Date.

Commissioning ” shall mean and refer to the act of causing the commissioning/turn up of the Premises’ infrastructure pursuant to the Commissioning Criteria, so that such infrastructure has passed Level 5 of such Commissioning Criteria.

Commissioning Agent ” shall mean and refer to the third party engineering firm that performs the Commissioning.

Commissioning Complete Letter ” shall mean and refer to a letter from the Commissioning Agent, evidencing successful commissioning of the Premises, substantially in the form attached hereto as Attachment “1” to Exhibit “H” .

Commissioning Criteria ” shall mean and refer to the commissioning criteria set forth on Exhibit “E-1” .

 

-ii-


Common Area ” shall mean and refer to that part of the Property lying outside the Premises designated by Landlord from time to time for the common use of all tenants of the Datacenter or the Building, as applicable, including among other facilities, the sidewalks, service corridors, curbs, truck ways, loading areas, private streets and alleys, lighting facilities, halls, lobbies, delivery passages, elevators, drinking fountains, meeting rooms, public toilets, parking areas and garages, decks and other parking facilities, landscaping and other common rooms and common facilities.

Consequential Damages ” shall mean and refer to consequential damages, incidental damages, indirect damages, or special damages, or for loss of profit, loss of business opportunity or loss of income.

Continuous Outage ” shall mean and refer to an Interruption of Landlord’s Essential Services that continues for fifteen (15) consecutive days, regardless of whether or not such Interruption of Landlord’s Essential Services was caused by Force Majeure.

Continuous Outage Termination Notice ” shall mean and refer to written notice from Tenant to Landlord, delivered within thirty (30) days after the occurrence of a Continuous Outage, that Tenant thereby terminates this Lease.

Control ”, as used in the definition of Tenant Affiliate, shall mean and refer to the right to exercise, directly or indirectly, fifty percent (50%) or more of the voting rights attributable to the controlled entity and/or the power to elect a majority of the controlled entity’s board of directors.

Datacenter ” shall mean and refer to the Datacenter described in Item 20 of the Basic Lease Information.

Datacenter Rules and Regulations ” shall mean and refer to Landlord’s rules and regulations for the Datacenter, as same may be amended from time to time in accordance with Section 6.2 of the Lease. The current version of the Datacenter Rules and Regulations is available on the Internet at the following URL:

http://www.digitalrealtytrust.com/leasing/

Datacenter Utility ” shall mean and refer to a utility type for which usage is billed on a “datacenter-by-datacenter” basis.

Datacenter Utility Costs ” shall mean and refer to the actual Datacenter Utility costs for the entirety of the Datacenter (i.e., based on the metering equipment that measures electrical and mechanical power [UPS, HVAC and other mechanical power] being used by the Datacenter), as set forth on the applicable Datacenter Utility bill(s) for the Datacenter (each such Datacenter Utility bill, a “ Datacenter Utility Bill ”) for the billing period covered by such Datacenter Utility Bill(s). In the formula set forth in Section 3.5.1(a), below, the applicable Datacenter Utility Costs are represented by the letter “ N ”.

Deemed Commencement Date ” shall mean and refer to the date derived by subtracting from the date of actual completion of the Commencement Date Conditions the number of days of delay in such completion caused by Tenant Delays of which notice is given by Landlord to Tenant reasonably contemporaneously with the time of occurrence (i.e., if completion of the Commencement Date Conditions does not actually occur until May 6, 2011 , but there were five (5) days of delay related to Tenant Delay of which such notice is given, the Deemed Commencement Date would be May 1, 2011 ).

Default Rate ” shall mean and refer to an interest rate equal to the lesser of (a) one percent (1%) per month or (b) the maximum lawful rate of interest.

Delinquency Date ” shall mean and refer to the date that is five (5) days after the date on which any particular payment of Rent is due from Tenant to Landlord.

Digital ” shall mean and refer to Digital Realty Trust, L.P., a Maryland limited partnership.

Early Delivery Date ” shall mean and refer to the Early Delivery Date set forth in Item 4 of the Basic Lease Information, subject to the terms of Section 2.2.1 of the Standard Lease Provisions.

 

-iii-


ECT Default Notice ” shall mean and refer to written notice from Landlord notifying Tenant of an ECT Overage.

ECT Overage ” shall mean and refer to a situation in which the electricity consumption in the Premises exceeds the Electricity Consumption Threshold.

Electricity Consumption Threshold ” shall mean and refer to the amount of electrical power specified in Item 1 of Exhibit “F” , Table A, as applicable during Phase I and Phase II, respectively.

Electricity Specifications ” shall mean and refer, collectively, to the Electricity Consumption Threshold and the Back-Up Power Specifications.

Environmental Laws ” shall mean and refer to all now and hereafter existing Applicable Laws regulating, relating to, or imposing liability or standards of conduct concerning public health and safety or the environment.

Environmental Reports ” shall mean and refer to those certain reports listed on Exhibit “J” , attached hereto.

Event of Default by Tenant ” shall mean and refer to the occurrence of any of the Events of Default by Tenant described in Sections 15.1.1-15.1.5, inclusive.

Excess Rent ” shall mean and refer to any consideration in excess of the sum of (a) the pro-rata portion of Rent applicable to the portion of the Tenant Space subject to the assignment or sublease, less (b) the reasonable leasing costs (i.e., tenant improvement allowances, other design and construction costs, legal fees and broker commissions paid by Tenant) actually incurred by Tenant in connection with such sublease or assignment.

Extension Option ” shall mean and refer to Tenant’s option to extend the Term of the Lease, the number and duration of which is as set forth in Item 6 of the Basic Lease Information, and the terms for which are as set forth in Section 2.3 of the Standard Lease Provisions.

Extension Option Exercise Notice ” shall mean and refer to written notice from Tenant to Landlord specifying that Tenant is irrevocably exercising an Extension Option so as to extend the Term of this Lease by the applicable Extension Term on the terms set forth in Section 2.3 of the Standard Lease Provisions.

Extension Term ” shall mean and refer to the duration of each duly authorized Extension Option, as set forth in Item 6 of the Basic Lease Information.

Extension Term Base Rent ” shall mean and refer to the monthly Base Rent payable with respect to the Tenant Space during an Extension Term.

Financial Statements ” shall mean and refer to audited annual financial statements of the indicated entity, including (i) an opinion of a certified public accountant, (ii) a balance sheet, and (iii) a profit and loss statement (income statement), all prepared in accordance with generally accepted accounting principles consistently applied.

First Interruption ” shall mean and refer to the first (1 st ) Separate/Independent Interruption of Landlord’s Essential Services occurring in any period of twelve (12) consecutive months.

Force Majeure ” shall mean and refer to any cause or reason beyond the reasonable control of the party obligated to perform hereunder, including, but not limited to, strike, labor trouble, governmental rule, regulations, ordinance, statute or interpretation, or fire, earthquake, or civil commotion.

Four-Plus Interruption ” shall mean and refer to the fourth (4 th ), and any subsequent, Separate/Independent Interruption of Landlord’s Essential Services occurring in any then-current Interruption Accrual Period.

 

-iv-


Generator Fuel Usage ” shall mean and refer to Tenant’s pro rata share of all fuel used by the element(s) of the Back-Up Power Systems described in Item 3 of Exhibit “F” , Table A. Such pro rata share shall be calculated as (A / B) as defined herein.

Generator Fuel Payment ” shall mean and refer to the actual cost of all Generator Fuel Usage that is not Maintenance Fuel Usage.

Handle ,” “ Handled ,” or “ Handling ” shall mean and refer to any installation, handling, generation, storage, treatment, use, disposal, discharge, release, manufacture, refinement, presence, migration, emission, abatement, removal, transportation, or any other activity of any type in connection with or involving Hazardous Materials.

Hazardous Materials ” shall mean and refer to: (1) any material or substance: (i) which is defined or becomes defined as a “hazardous substance,” “hazardous waste,” “infectious waste,” “chemical mixture or substance,” or “air pollutant” under Environmental Laws; (ii) containing petroleum, crude oil or any fraction thereof; (iii) containing PCBs; (iv) containing ACM; (v) which is radioactive; (vi) which is infectious; or (2) any other material or substance displaying toxic, reactive, ignitable, explosive or corrosive characteristics, and is defined, or becomes defined by any Environmental Law.

Holder ” shall mean and refer to any mortgagee or beneficiary with a mortgage or deed of trust encumbering the Property or any portion thereof, or any lessor of a ground or underlying lease with respect to the Property or any portion thereof.

HVAC ” shall mean and refer to heating, ventilation and air conditioning.

HVAC Specifications ” shall mean and refer to the specifications set forth in Item 4(a) and (b) of Exhibit “F” , Table A.

Installation Fee ” shall mean and refer to the Installation Fee set forth in Item 9 of the Basic Lease Information, subject to the terms of Section 3.2 of the Standard Lease Provisions.

Interruption Accrual Period ” shall mean and refer to the period of twelve (12) consecutive months occurring from and after each First Interruption.

Interruption Cure Completion Notice ” shall mean and refer to written notice from Landlord that a particular Interruption of Landlord’s Essential Services or Loss of Redundancy has been rectified.

Interruption – Electrical ” shall mean and refer to the occurrence of a partial or complete interruption of electricity to collective pair of A-side and B-side PDUs supplying electrical power to Tenant’s Personal Property within the Premises; provided that such occurrence is not caused by any act or omission of Tenant or any other Tenant Party, nor by a Casualty Event, nor by, or during, an ECT Overage. The foregoing notwithstanding, if (a) Tenant fails to take advantage of the redundant electrical design of the Premises (e.g. Tenant “single-cords” its equipment in a scenario where “dual-cording” of Tenant’s equipment is available), (b) there occurs an interruption of electricity to one (1) or more PDUs from which Tenant draws electricity to power Tenant’s Personal Property, (c) such interruption results in a power outage in one (1) or more items of Tenant’s Personal Property, and (d) such power outage could have been avoided if Tenant had taken proper advantage of the electrical redundancies in the Premises, then such interruption will be deemed not to have been an Interruption – Electrical.

Interruption – Electrical Duration Threshold ” shall mean and refer to an aggregate of six (6) minutes in any rolling twelve (12) month period.

Interruption – Humidity ” shall mean and refer to the occurrence of the average relative humidity of the Premises measured at the return air vents in the Premises being outside of the Target Humidity Range for a period of ninety (90), or more, consecutive minutes; provided that such occurrence is not caused by any act or omission of Tenant or any other Tenant Party, nor by a Casualty Event, nor by, or during, an ECT Overage. For the avoidance of doubt, the duration of each Interruption – Humidity shall commence from and after the expiration of the ninetieth (90 th ) consecutive minute of the average relative humidity of the Premises being outside of such Target Humidity Range.

 

-v-


Interruption of Landlord’s Essential Services ” shall mean and refer to (a) an Interruption – Electrical; (b) an Interruption – Temperature, or (c) an Interruption – Humidity.

Interruption – Temperature ” shall mean and refer to the occurrence of the average temperature of the Premises measured at the return air vents in the Premises being outside of the Target Temperature Range for a period of ninety (90), or more, consecutive minutes; provided that such occurrence is not caused by any act or omission of Tenant or any other Tenant Party, nor by a Casualty Event, nor by, or during, an ECT Overage. For the avoidance of doubt, the duration of each Interruption – Temperature shall commence from and after the expiration of the ninetieth (90 th ) consecutive minute of the average temperature of the Premises being outside of the Target Temperature Range. The foregoing notwithstanding, in the event that the average temperature of the Premises measured at the return air vents in the Premises reaches (or exceeds) one hundred (100) degrees Fahrenheit for any period of time , such occurrence will be deemed to have been an Interruption – Temperature, regardless of whether such average temperature has been outside of the Target Temperature Range for ninety (90) consecutive minutes; provided that such occurrence is not caused by any act or omission of Tenant or any other Tenant Party, nor by a Casualty Event, nor by, or during, an ECT Overage).

Land ” shall mean and refer to the Land described in Item 14 of the Basic Lease Information.

Landlord ” shall mean and refer to the Landlord set forth in Item 1 of the Basic Lease Information.

Landlord Default ” shall mean and refer to the occurrence of a Landlord Default, as described in Section 16.1.1.

Landlord Group ” shall mean and refer to Landlord and its directors, officers, shareholders, members, employees, constituent partners, affiliates, beneficiaries and trustees.

Landlord’s Access Control Systems ” shall mean and refer to: (i) a check-in desk at the Building’s main entrance operated by Landlord twenty-four (24) hours per day, seven (7) days per week, fifty-two (52) weeks per year, (ii) an electronic “key card” system to control access to the Datacenter, (iii) a video surveillance system in the Datacenter and certain Common Areas; (iv) Building main entry doors have “key card” access control with emergency egress, as required by code, to allow for override of the key card system in the event of emergency; (v) all doors in the Building with access control are monitored; (vi) key lock to control access to the Premises.

Landlord’s Actual Knowledge ” or similar phrase shall mean and refer to the actual current knowledge, as of the Effective Date, of Carol Stensrud, Digital Realty Trust, L.P., Asset Manager for the Building, Rick Berk, Vice President of Digital Realty Trust, L.P., and David J. Caron, Senior Vice President of Digital Realty Trust, L.P. (the foregoing three (3) individuals, being employees of Digital Realty Trust, L.P., who would have direct and specific knowledge regarding the Building, but who shall not have the duty of additional investigation in connection with this Lease).

Landlord’s Essential Services ” shall mean and refer to Landlord’s obligations to meet the Electricity Specifications and the HVAC Specifications.

Landlord’s Installations ” shall mean and refer to the installations defined as such, as set forth on Exhibit “E” , attached hereto.

Landlord’s Lease Undertakings ” shall mean and refer to any representation, warranty, covenant, undertaking or agreement contained in any of the Lease Documents that is to be provided or performed by Landlord.

Landlord’s Liability Cap ” shall mean and refer to an aggregate amount of Landlord’s interest in the Property not to exceed $10,000,000.00.

 

-vi-


Late Charge ” shall mean and refer to a sum equal to five percent (5%) of the amount of a particular Late Payment.

Late Payment ” shall mean and refer to the portion of any payment of Rent that (a) is not a disputed in good faith by Tenant in writing prior to the due date thereof; and (b) Landlord has not received from Tenant prior to the Delinquency Date.

Late Payment Interest ” shall mean and refer to interest on a particular Late Payment at the Default Rate.

Lease Documents ” shall mean and refer to this Lease and all schedules, exhibits, riders, amendments, and addenda to this Lease.

Loss of Redundancy ” shall mean and refer to the occurrence of any unscheduled disruption and/or loss of electricity to the A-side or B-side PDUs supplying electrical power to Tenant’s Personal Property within the Premises; provided that such occurrence is not caused by any act or omission of Tenant or any other Tenant Party, nor by a Casualty Event, nor by, or during, an ECT Overage. For the purposes of clarity, the disruption of electricity to any such A-side or B-side PDU that occurs (and continues only) during a PM Activity for the PDUs will be deemed not to have been a Loss of Redundancy.

Maintenance Fuel Usage ” shall mean and refer to Generator Fuel Usage that is used for the performance of Landlord’s maintenance obligations hereunder.

Master Lease ” shall mean and refer to an agreement between Landlord and the Third Party Tenant regarding the operation and control of the Premises.

Maximum Structural Load ” shall mean and refer to the Maximum Structural Load set forth in Item 19 of the Basic Lease Information.

Metering Equipment – Tenant Space ” shall mean and refer to a metering device (or metering devices) for monitoring the utilities serving, provided to and/or used in the Tenant Space.

MMR Services ” shall mean and refer to the services typically provided by companies in the primary business of providing carrier-neutral interconnections, such as Equinix, CRG West and Telehouse, including without limitation, furnishing of space, racks and pathway to telecommunications carriers for the purpose of such carriers’ placement and maintenance of computer, switch and/or communications equipment and cross-connections by such carriers with the communications cable and facilities of other parties in the Building.

Noticed Holder ” shall mean and refer to a Holder for which Tenant has been notified in writing of the address of such Holder.

Other PDU kW-hr ” shall mean and refer to the number of kilowatt-hours on the PDU(s) serving all portions of the Datacenter other than the Tenant Space during the same billing period as the applicable Datacenter Utility Bill for the Datacenter.

Outage Credit ” means the quotient achieved by dividing the Base Rent for the month in which the Interruption of Landlord’s Essential Services occurred by 60.

Outside Completion Date ” shall mean and refer to the Outside Completion Date set forth in Item 4 of the Basic Lease Information, subject to the terms of Section 2.2.2 of the Standard Lease Provisions.

Partial Month ” shall, in the event of a Commencement Date that occurs on a date that is other than the first (1 st ) day of a calendar month, mean and refer to the number of calendar days (including the Commencement Date) remaining in the month in which the Commencement Date occurs.

Pathways ” shall mean and refer to the Pathways described in Item 7 of the Basic Lease Information.

PCBs ” shall mean and refer to polychlorinated biphenyls.

 

-vii-


PDUs ” shall mean and refer to power distribution units.

Periods of Premises Operation ” shall mean and refer to those periods of equipment operation within the Premises (i.e., periods during electrical power is being drawn by Tenant’s Personal Property).

Periods of Premises Underutilization ” shall mean and refer to those periods during which none of Tenant’s Personal Property is operating in the Premises (i.e., periods during which there is no electrical power being drawn by Tenant’s Personal Property).

Permitted Transfer ” shall mean and refer to: (i) the transfer of a majority interest of the outstanding shares of stock of Tenant, (ii) the merger of Tenant with another entity or entities, and (iii) the sale of all or substantially all of Tenant’s assets, and/or (iv) Affiliate Transfers; provided that, in any such event, (a) the action is taken pursuant to a bona fide business transaction and not principally or exclusively as a means to evade the consent requirements under this Lease, and (b) the “Tenant” under this Lease after such transaction has a net worth (which shall be equal to total assets minus total liabilities and determined in accordance with generally accepted accounting principles (“ GAAP ”)) of not less than the net worth (as determined in accordance with GAAP) of Tenant as of the Effective Date of this Lease, as evidenced in a manner reasonably acceptable to Landlord.

Permitted Use ” shall mean and refer to the placement, installation, operation, repair and maintenance of computer, switch and/or communications equipment and connections of such equipment (subject to the terms of Section 1.3 of the Standard Lease Provisions), via telecommunications cables, with the facilities and/or equipment of other tenants in the Datacenter or the Building.

PM Activity ” shall mean and refer to each of the activities contained on Landlord’s then-current PM Standards.

PM Audit ” shall mean and refer to Tenant’s inspection of the PM Books and Records.

PM Audit Notice ” shall mean and refer to written notice of Tenant’s intent to perform a PM Audit.

PM Books and Records ” shall mean and refer to the books and records used by Landlord for documenting performance of the PM Activities.

PM Schedule ” shall mean and refer to Landlord’s then-current schedule for the performance of the PM Activities.

PM Standards ” shall mean and refer to the activities of preventative maintenance that Landlord performs with regard to the equipment that serves the Premises. Landlord’s current list of PM Standards is available on the Internet at the following URL:

http://www.digitalrealtytrust.com/leasing

POP Room ” shall mean and refer to the POP Room described in Item 16 of the Basic Lease Information.

Premises ” shall mean and refer to the Premises described in Item 7 of the Basic Lease Information.

Premises PDU kW-hr ” shall mean and refer to the number of kilowatt-hours on the PDU(s) serving the Premises during the same billing period as the applicable Datacenter Utility Bill for the Datacenter. In the formulas set forth in Section 3.5.1(a) and (b), below, the applicable Premises PDU kW-hr is represented by the letter “ A ”.

Prepaid Rent ” shall mean and refer to the Prepaid Rent set forth in Item 10 of the Basic Lease Information, subject to the terms of Section 3.1 of the Standard Lease Provisions.

Prior Tenant Space ” shall mean the premises and pathway which are being relocated and re-assigned pursuant to Section 1.4 of the Standard Lease Provisions.

 

-viii-


Property ” shall mean and refer to the Land, the Building, and Landlord’s personal property thereon or therein.

Pump Room ” shall mean and refer to that certain pump room which serves (but is located outside of) the Datacenter.

Qualifying Chronic Outage ” shall mean and refer to the occurrence of:

(a) each Separate/Independent Interruption of Landlord’s Essential Services, which continues for four (4) or more consecutive hours, regardless of whether or not such Interruption of Landlord’s Essential Services was caused by Force Majeure (i.e., each such Interruption of Landlord’s Essential Services equals one (1) Qualifying Chronic Outage),

(b) each complete period of seven hundred twenty (720) consecutive hours occurring during a Loss of Redundancy (i.e., each such period equals one (1) Qualifying Chronic Outage), and

(c) the collective occurrence within a rolling period of ninety (90) consecutive days of five (5) Separate/Independent Interruptions of Landlord’s Essential Services - Electrical of any duration to the same pair of A-side and B-side PDUs, regardless of whether or not such Interruptions - Electrical were caused by Force Majeure (i.e., each five (5) equals one (1) Qualifying Chronic Outage).

Rent ” shall mean and refer to all Base Rent, plus all Additional Rent.

Repair Period-Actual ” shall mean and refer to the period of time that it actually takes to repair and/or restore the Building following a Casualty Event in order to enable Tenant’s use of the Tenant Space in the ordinary conduct of Tenant’s business.

Repair Period-Estimated ” shall mean and refer to the period of time, which Landlord estimates will be required for the repair and/or restoration of the Building following a Casualty Event in order to enable Tenant’s use of the Tenant Space in the ordinary conduct of Tenant’s business.

Second Interruption ” shall mean and refer to the second (2 nd ) Separate/Independent Interruption of Landlord’s Essential Services occurring in any then-current Interruption Accrual Period.

Security Documents ” shall mean and refer to: (i) all ground leases or underlying leases; (ii) the lien of any mortgage, deed, or deed of trust; (iii) all past and future advances made under any such mortgages, deeds, or deeds of trust; and (iv) all renewals, modifications, replacements and extensions of any such ground leases, master leases, mortgages, deeds, and deeds of trust.

Separate/Independent Interruption of Landlord’s Essential Services ”, and similar phrases used herein, shall mean and refer to (a) Interruptions of Landlord’s Essential Services that occur from separate and unrelated root causes; or (b) a further occurrence of a particular Interruption of Landlord’s Essential Services that occurs after Landlord has provided Tenant the Interruption Cure Completion Notice with regard to the immediately preceding occurrence of such Interruption of Landlord’s Essential Services.

Separate/Independent Interruption of Landlord’s Essential Services - Electrical ”, and similar phrases used herein, shall mean and refer to (a) Interruptions – Electrical that occur from separate and unrelated root causes; or (b) a further occurrence of a particular Interruption – Electrical that occurs after Landlord has provided Tenant the Interruption Cure Completion Notice with regard to the immediately preceding occurrence of such Interruption - Electrical.

Shared Mechanical Costs ” shall mean and refer to the utility costs related to all items of mechanical and electrical equipment that serve the Premises, but which are commercially impractical of being separately metered to the Premises, due to the fact that such items (and/or the utility meters monitoring same) are designed to serve (and/or monitor) more areas of the Datacenter and/or Building than just the Premises. Shared Mechanical Costs shall also include all costs related to the delivery of each utility as well as the relevant “unit consumption costs”, including, but not limited to, recurring network charges, subscription

 

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charges or one-off maintenance charges imposed by the utility provider. For the avoidance of doubt, and for the purposes of illustration, but not limitation, the Shared Mechanical Costs include the utility costs related to shared electrical system equipment and shared HVAC system equipment, as well as the costs related to the electrical power dissipation that occurs between a utility’s power meters that monitor power consumption at the Datacenter level or the Building level and those meters that monitor power consumption at the Premises level, such dissipation being inherent to the total amount of electrical power required to operate the Datacenter.

Shared Mechanical Equipment ” shall mean certain equipment within the Tenant Space, and/or equipment located outside the Tenant Space but serving the Tenant Space, including, without limitation, certain cooling equipment, that is commercially impractical of being separately metered to the Tenant Space, because it utilizes equipment and/or facilities designed to serve more area of the Datacenter and/or the Building than just the Tenant Space.

Shared Mechanical Metering Equipment ” shall mean and refer to metering equipment that separately meters utilities provided specifically to the Tenant Space by the Shared Mechanical Equipment.

SNDA ” shall mean and refer to a subordination, non-disturbance and attornment agreement in a form that is reasonably acceptable to Tenant, which provides that, so long as there is no Event of Default by Tenant, Tenant may remain in possession of the Tenant Space under the terms of this Lease, even if the Holder should acquire Landlord’s title to the Building.

Taking ” shall mean and refer to the Property, or some portion thereof, having been taken under the power of eminent domain or condemned by any competent authority for any public or quasi-public use or purpose, or sold to prevent the exercise thereof.

Target Commencement Date ” shall mean and refer to the Target Commencement Date set forth in Item 4 of the Basic Lease Information, subject to the terms of Section 2.2.2 of the Standard Lease Provisions.

Target Humidity Range ” the range of relative humidity percentages described in Item 4(b) of Exhibit “F” , Table A.

Target Temperature Range ” the range of temperatures described in Item 4(a) of Exhibit “F” , Table A.

Taxes – Equipment ” shall mean and refer to all governmental fees, taxes, tariffs and other charges levied directly or indirectly against any personal property, fixtures, machinery, equipment, apparatus, systems, connections, interconnections and appurtenances located in, or used by Tenant in or in connection with, the Tenant Space.

Taxes – Other ” shall mean any excise, sales, privilege or other tax, assessment or other charge (other than income taxes) imposed, assessed or levied by any governmental or quasi-governmental authority or agency upon Landlord on account of (i) the Rent (and other amounts) payable by Tenant hereunder (or any other benefit received by Landlord hereunder), including, without limitation, any gross receipts tax, license fee or excise tax levied by any governmental authority, (ii) this Lease, Landlord’s business as a lessor hereunder, and/or the possession, leasing, operation, management, maintenance, alteration, repair, use or occupancy of any portion of the Tenant Space (including, without limitation, any applicable possessory interest taxes), (iii) this transaction or any document to which Tenant is a party creating or transferring an interest or an estate in the Tenant Space, or (iv) otherwise in respect of or as a result of the agreement or relationship of Landlord and Tenant hereunder.

Tenant ” shall mean and refer to the Tenant set forth in Item 2 of the Basic Lease Information.

Tenant Affiliate ” shall mean and refer to any partnership, limited liability company, or corporation or other entity, which, directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, Tenant.

 

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Tenant Delay ” shall mean and refer to a delay in Landlord’s completion of the Commencement Date Conditions, which is attributable to or caused by any change order by Tenant. The foregoing notwithstanding, Landlord and Tenant agree that Tenant shall have no express right hereunder to request or demand that a change in the Tenant Space specifications be made. As such, in order for any Tenant-requested change to have any effect, all such change requests (if acceptable to Landlord) must be documented in an amendment to this Lease, which shall account for the “Deemed Commencement Date” effect described in Section 2.2.4 of this Lease.

Tenant Group ” shall mean and refer to Tenant and its directors, officers, shareholders, members, employees, constituent partners, and Tenant Affiliates.

Tenant Parties ” shall mean and refer, collectively to Tenant, the other members of the Tenant Group, Tenant’s Transferees, and their respective contractors, clients, servants, representatives, licensees, Colocating Parties, agents, and invitees.

Tenant Space ” shall mean and refer to the Premises together with the Pathway.

Tenant Space Customer ” shall mean and refer to each customer or other person or entity to which Tenant, any Tenant Affiliate, any other Tenant Party, or any Transferee, provides goods or services, which are in any way related to or associated with the use of the Tenant Space, including, but not limited to, those customers, persons or entities now or hereafter conducting transactions or other operations by or through or in connection with equipment located within the Tenant Space.

Tenant’s Datacenter Utility Payment ” shall mean and refer to Tenant’s pro rata portion of the applicable Datacenter Utility Costs, during the same billing period as the applicable Datacenter Utility Bill for the Datacenter, being allocated to the Premises based on the amount of the Premises PDU kW-hr during such billing period, as compared to the Total Datacenter PDU kW-hr during the same billing period. In the formula set forth in Section 3.5.1(a), below, Tenant’s Datacenter Utility Payment, related to the applicable Datacenter Utility Bill, is represented by the letter “ G ”.

Tenant’s Personal Property ” shall mean and refer, collectively, to all cable, wiring, connecting lines, and other installations, equipment or property installed or placed by, for, through, under or on behalf of Tenant or any Tenant Party anywhere in the Building, the Datacenter, and/or the Tenant Space, not including any equipment or property owned, leased or licensed by Landlord or any other member of the Landlord Group. Additionally, for the purposes of clarity, the parties acknowledge that “Tenant’s Personal Property” includes all equipment or property, other than equipment or property owned, leased or licensed by Landlord or any other member of the Landlord Group, installed and/or placed anywhere in the Building, the Datacenter, and/or the Tenant Space by any party specifically and solely in order to provide any service to Tenant or any Tenant Party (e.g., data storage/archiving and data recovery type equipment that is utilized by or for Tenant or any Tenant Party in the Tenant Space, but which is actually owned by a third party, other than Landlord or any other member of the Landlord Group).

Tenant’s Separately Metered Utility Payment ” shall mean the actual cost of all utilities, if any, that serve, are provided to and/or are used in, or for, the Tenant Space, for which the costs that are applicable to the Tenant Space are wholly and separately metered to the Tenant Space.

Tenant’s Shared Mechanical Payment ” shall mean each Tenant’s Datacenter Utility Payment.

Tenant’s Utility Payment ” shall mean and refer to each Tenant’s Shared Mechanical Payment and each Tenant’s Separately Metered Utility Payment.

Term ”; “ Term of this Lease ”; and “ Term of the Lease ” shall mean and refer to the period described in Item 5 of the Basic Lease Information, subject to the terms of such Item 5.

 

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Third Interruption ” shall mean and refer to the third (3 rd ) Separate/Independent Interruption of Landlord’s Essential Services occurring in any then-current Interruption Accrual Period.

Third Party POP Room Operator ” shall mean and refer to an entity, who is not an affiliate of Landlord, with whom Landlord may hereafter contract for the operation and control of the POP Room.

Third Party Tenant ” shall mean and refer to an entity, who is not an affiliate of Landlord, with whom Landlord may hereafter contract for the operation and control of the Premises.

Total Datacenter PDU kW-hr ” shall mean and refer to the number of kilowatt-hours on the PDU(s) serving the Datacenter during the same billing period as the applicable Datacenter Utility Bill for the Datacenter, being represented by the sum of the Premises PDU kW-hr plus the Other PDU kW-hr. In the formulas set forth in Sections 3.5.1(a) and (b), below, the applicable Total Datacenter PDU kW-hr is represented by the letter “ B ”.

Transfer ” shall mean and refer to (a) a sublease of all or any part of the Tenant Space, (b) an assignment of this Lease, and/or (c) any other agreement (i) permitting a third party (other than Tenant’s employees and occasional guests) to occupy or use any portion of the Tenant Space, or (ii) otherwise assigning, transferring, licensing, mortgaging, pledging, hypothecating, encumbering, or permitting a lien to attach to its interest under, this Lease.

Transferee ” shall mean and refer to any person or entity to whom a Transfer is made or sought to be made.

Transfer Notice ” shall mean and refer to a written request for Landlord’s consent to a particular Transfer, which notice shall include (i) a statement containing: (a) the name and address of the proposed Transferee; and (b) all of the principal terms of the proposed Transfer; (ii) current, certified financial statements of the proposed Transferee, and any other information and materials reasonably required by Landlord to enable Landlord to adequately review the financial responsibility of the proposed Transferee; (iii) such other information and materials as Landlord may reasonably request (and if Landlord requests such additional information or materials, the Transfer Notice shall not be deemed to have been received until Landlord receives such additional information or materials); and (iv) the form of the proposed assignment or other Transfer documentation that will be executed by Tenant and the proposed Transferee.

UPS Plant ” shall mean and refer to an uninterruptable power supply plant.

UPS Room ” shall mean and refer to that certain UPS room which serves (but is located outside of) the Datacenter.

 

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3105 ALFRED STREET

TURN KEY DATACENTER LEASE

This Turn Key Datacenter Lease (this “ Lease ”) is entered into as of the Effective Date specified in Item 4 of the Basic Lease Information, by and between Landlord (as set forth in Item 1 of the Basic Lease Information, below) and Tenant (as set forth in Item 2 of the Basic Lease Information, below):

RECITALS

A. Landlord is the owner of the Land (as set forth in Item 14 of the Basic Lease Information, below). The Land is improved with, among other things, the Building (as set forth in Item 15 of the Basic Lease Information, below), which Building is also owned by Landlord.

B. Tenant desires to lease (i) space in the Datacenter and (ii) certain Pathways between the Datacenter and the POP Rooms, as described in Exhibit C.

C. Unless otherwise specifically indicated to the contrary, all initially capitalized terms contained in this Lease shall have the meanings set forth on Schedule “1” , attached to this Lease.

NOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth, Landlord and Tenant agree as follows:

BASIC LEASE INFORMATION

 

1. Landlord :   

Digital Alfred, LLC, a Delaware limited liability company

 

2. Tenant :   

Constant Contact, Inc., a Delaware corporation

 

3. Tenant Addresses :   

Tenant Address for Notices :

 

Constant Contact, Inc.

1601 Trapelo Road

Waltham, MA 02451

Attn: Senior Vice President, Engineering and Operations

Phone: 781-472-8100

Email: jwalsh@constantcontact.com

 

With copies to:

 

Constant Contact, Inc.

1601 Trapelo Road

Waltham, MA 02451

Attn: General Counsel

Phone: 781-472-8100

Email: general_counsel@constantcontact.com

 

And:

 

WilmerHale

60 State Street

Boston, MA 02109

Attn: Paul Jakubowski, Esq.

Phone: 617-526-6948

Email: paul.jakubowski@wilmerhale.com

 

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Tenant Address for Invoice of Rent :

 

Constant Contact, Inc.

1601 Trapelo Road

Waltham, MA 02451

Attn: Accounts Payable

Phone: 781-472-8100

Email: ap@constantcontact.com

 

4. Effective Date/

Commencement Date :

    
   

(a) Effective Date :

   December 31, 2010, being the latest of the parties’ respective dates of execution of this Lease, as set forth on the signature page of this Lease (and which date shall be inserted in this Item 4 by Landlord, upon Landlord’s counter-execution of this Lease.)
   

(b) Target

    

Commencement Date :

   May 1, 2011.
   

(c) Early Delivery Date :

   April 1, 2011
   

(d) Outside Completion

Date :

   June 30, 2011
   

(e) Commencement Date :

  

Subject to the terms of Section 2.2.4 of the Standard Lease Provisions, the date upon which Landlord has completed the Commencement Date Conditions.

 

5. Term :   

Approximately seventy-two (72) full calendar months (i.e., commencing on the Commencement Date and expiring on the last day of the seventy-second (72nd) full calendar month thereafter).

 

For the avoidance of doubt, Landlord and Tenant acknowledge and agree that, if the Commencement Date occurs on a date that is other than the first (1 st ) day of a calendar month, the Term of this Lease shall be deemed to have been automatically extended by the number of calendar days in the Partial Month, such that the Term of the Lease shall then be equal to the number of full calendar months described above, plus the number of calendar days in the Partial Month.

 

For example:

 

a. If the Commencement Date occurs on May 1, 2011 , then the seventy-two (72) full calendar month Term of this Lease would commence on May 1, 2011 , and expire on April 30, 2017 .

 

b. If, however, the Commencement Date occurs on May 18, 2011 , then the seventy-two (72) full calendar month Term of this Lease would commence on May 18, 2011 , and expire on May 31, 2017 . In this example, the period occurring from May 18, 2011 through May 31, 2011 is the Partial Month. The Base Rent payable by Tenant hereunder during such Partial Month shall be payable by Tenant on a pro-rated basis, in accordance with Section 3.1 of the Standard Lease Provisions, at a rate equal to the rate of Base Rent that would otherwise be due and payable by Tenant hereunder with regard to the first (1 st ) month of the Term of this Lease (pro-rated on a per diem basis). However, in this example, the first (1 st ) month of the seventy-two (72) full calendar month Term of this Lease would, for the purposes of calculating the expiration of the Term of the Lease, be deemed to be the month of June, 2011 .

 

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6. Extension Options/

Extension Term :

 

  

Two (2) Extension Options, each to extend the Term for an Extension Term of forty-eight (48) months, subject to the terms of Section 2.3, below.

 

7. Premises/Pathway :

 

(a) Premises :

  

Landlord and Tenant acknowledge and agree that the “Premises” will consist of two (2) spaces (being Premises-A and Premises-B, each as defined below), collectively comprising approximately 3,600 square feet of area within the Datacenter, and shall be delivered to Tenant in two (2) phases , as follows:

 

1. Phase I . For the period commencing on the Commencement Date and continuing until the occurrence of the Phase II Expansion Date (defined below) (such period being referred to herein as “ Phase I ”), the Premises shall consist of approximately 1,800 square feet of area within the Datacenter (as depicted on Exhibit “A” , attached hereto, “ Premises-A ”). During Phase I, the term “ Tenant Space ” shall mean and refer to Premises-A and the Pathway.

 

2. Phase II . On the first (1 st ) day of the seventh (7 th ) full calendar month of the Term of this Lease (the “ Phase II Expansion Date ”), the Premises shall be deemed to have been automatically expanded to include approximately 1,800 square feet of additional area within the Datacenter (as depicted on Exhibit “A” , “ Premises-B ”). For the period commencing on the Phase II Expansion Date and continuing through the balance of the Term (such period being referred to herein as “ Phase II ”), the Premises shall be deemed to include Premises-A and Premises-B. During Phase II, the term “ Tenant Space ” shall mean and refer to Premises-A, Premises-B and the Pathway.

   

(b) Pathways :

 

  

As described on Exhibit “C” .

 

8. Base Rent :   

$47,770.00 per month for the period commencing on the Commencement Date and expiring on the last day of the sixth (6 th ) full calendar month of the Term of the Lease.

 

(months 1 - 6 of the Term)

 

$95,540.00 per month for months 7 - 12 of the Term.

 

$98,406.20 per month for months 13 - 24 of the Term.

 

$101,358.39 per month for months 25 - 36 of the Term.

 

$104,399.14 per month for months 37 - 48 of the Term.

 

$107,531.11 per month for months 49 - 60 of the Term.

 

$110,757.05 per month for months 61 - 72 of the Term.

 

9. Installation Fee :

 

  

$25,000.00 (the “ Installation Fee ”).

 

10. Prepaid Rent :    $47,770.00 (being the first (1 st ) month’s Base Rent). Such Prepaid Rent shall be applied to the Base Rent due in month 1 of the Term of this Lease.

 

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11. Landlord’s Address

for Notices :

 

  

Digital Alfred, LLC

c/o Digital Realty Trust, L.P.

 

   With copies to:
     1100 Space Park Drive, Suite 104    Digital Realty Trust, L.P.
     Santa Clara, CA 95054    1100 Space Park Drive, Suite 104
     Attn: Property Manager    Santa Clara, CA 95054-3417
     Facsimile No. (408) 387-8558    Attention: Asset Manager
     E-mail:    Facsimile No. (408) 387-8558
     leaseadministration@digitalrealtytrust.com     
     
          And:
     
         

Stutzman, Bromberg, Esserman & Plifka, A Professional Corporation 2323 Bryan Street, Suite 2200 Dallas, TX 75201

Attention: Noah K. Hansford

Facsimile No. (214) 969-4999

E-mail: hansford@sbep-law.com

 

12. Landlord’s Addres s    ACH Payments :     
for Payment of Rent :        
     Bank:    Bank of America NT&SA
        1850 Gateway Blvd
        Concord, CA 94520-3282
   
     Routing Number:    121000358
     Account Number:    1499805879
     Account Name:    Digital Alfred, LLC
     Regarding/Reference:    Tenant Account No, Invoice No
   
     Wire Transfer:     
   
     Bank:    Bank of America NT&SA
        100 West 33 rd Street
        New York, NY 10001
   
     Routing Number:    026009593
     Account Number:    1499805879
     Account Name:    Digital Alfred, LLC
     Regarding/Reference:    Tenant Account No Invoice No
   
     Contact Information :     
   
     Director of Cash Management
     Digital Realty Trust     
     560 Mission Street, Suite 2900
     San Francisco, CA 94105     
     P: (415) 738-6509     
    

F: (415) 495-3687

 

    
13. Brokers/Advisors :          
   

(a) Landlord’s Broker :

   Blickman-Turkus, Inc. and CB Richard Ellis, Inc.
   

(b) Tenant’s Advisor :

 

  

RampRate Sourcing Advisors, Inc.

 

14. Land :   

The Land located at:

3105 Alfred Street, Santa Clara, California

 

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15. Building :

  

3105 Alfred Street: A one (1)-story building consisting of approximately 49,858 square feet.

 

16. POP Rooms :

  

The primary POP Room (approximately as depicted on Exhibit “A”, the “ PPOP Room ”) and the secondary POP Room (approximately as depicted on Exhibit “A” , the “ SPOP Room ”; together with the PPOP Room, collectively, the “ POP Rooms ”), each being located on the first (1 st ) floor of the Building.

 

17. Storage and Receiving :

  

As it relates to Tenant’s Personal Property that is delivered to the Building from time to time, Landlord agrees, upon twenty-four (24) hours’ prior notice from Tenant, but subject to reasonable availability of the space, to permit items of Tenant’s Personal Property to be stored temporarily (i.e., for no more than seventy-two (72) hours per delivery) on a non-exclusive basis in locked storage space in the loading area of the Building. Such shipments shall be accepted by Landlord and stored in such locked space until such time as Tenant takes delivery of said shipment. The foregoing notwithstanding, nothing contained in this Item 17 shall be deemed to waive or modify the terms of the Standard Lease Provisions, below (including, but not limited to, Sections 9.2, 14.1.1 and 14.2.1).

 

18. Intentionally Deleted :

 

  

Intentionally Deleted.

 

19. Maximum Structural Load :

 

  

250 pounds of live load per square foot.

 

20. Datacenter :

  

Suite 140 located on the first (1st) floor of the Building approximately as depicted on Exhibit A ” (the “ Datacenter ”).

 

21. Intentionally Deleted.

   Intentionally Deleted.

This Lease shall consist of the foregoing Basic Lease Information, the provisions of the Standard Lease Provisions, below, Schedule “1” , above, and Exhibits A ” through “ K ”, inclusive, all of which are incorporated herein by this reference as of the Effective Date. In the event of any conflict between the provisions of the Basic Lease Information and the provisions of the Standard Lease Provisions, the Basic Lease Information shall control.

[no further text on this page]

 

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STANDARD LEASE PROVISIONS

 

1. LEASE OF TENANT SPACE .

1.1 Tenant Space . In consideration of the covenants and agreements to be performed by Tenant, and upon and subject to the terms and conditions of this Lease, Landlord hereby leases to Tenant for the Term, (i) the Premises; and (ii) the Pathways.

1.2 Condition of Tenant Space . Tenant has inspected the Datacenter and the Tenant Space and, subject to Landlord’s completion of the Commencement Date Conditions, Tenant agrees to accept (a) Premises-A and the Pathway in their “AS IS, WHERE IS” condition on the Commencement Date, and (b) Premises-B in its “AS IS, WHERE IS” condition on the Phase II Expansion Date. Tenant acknowledges and agrees that (i) except as specifically set forth herein, no representation or warranty (express or implied) has been made by Landlord as to the condition of the Property, the Building, the Datacenter or the Tenant Space or their suitability or fitness for the conduct of the Permitted Use, its business or for any other purpose, and (ii) except as specifically set forth herein, Landlord shall have no obligation to construct or install any improvements in or to make any other alterations or modifications to the Property, Building or the Tenant Space.

1.3 Datacenter Connection Area . Tenant acknowledges and agrees that all interconnections between the systems of Tenant and those of other tenants of the Datacenter, and all cross-connects between the systems of Tenant and those of carriers in the Building, must be made in the POP Rooms. Tenant acknowledges that the Datacenter Connection Area is a Common Area that will be used by and be accessible by other tenants and their technicians. Anything to the contrary contained in this Lease notwithstanding, Tenant acknowledges that the POP Rooms may hereafter be operated by a Third Party POP Room Operator. In such event, all operations in the POP Rooms (including all MMR Services), and all Tenant presences in the POP Rooms, including pathways, may be governed and controlled by the Third Party POP Room Operator; each and all of which shall be subject to the terms of this Lease and such agreements and costs as are mutually agreed in writing, by and between Tenant and the Third Party POP Room Operator.

1.4 Relocation Right . Intentionally Deleted.

1.5 Quiet Enjoyment; Access . Subject to all of the terms and conditions of this Lease, Tenant shall quietly have, hold and enjoy the Tenant Space in conformity with the Permitted Use without hindrance from Landlord or any person or entity claiming by, through or under Landlord. Subject to the terms and conditions of this Lease, including, without limitation, the Datacenter Rules and Regulations and Landlord’s Access Control Systems and Force Majeure, Tenant shall have access to the Tenant Space twenty-four (24) hours per day, seven (7) days per week.

1.6 Common Area . The Common Area shall be subject to Landlord’s sole management and control and shall be operated and maintained in such manner as Landlord in Landlord’s discretion shall determine, subject to the rights of Tenant under this Lease and provided that Landlord will not take any actions with respect to such Common Area that will unreasonably interfere with Tenant’s access to the Tenant Space or the use of the Tenant Space

 

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for the Permitted Use. Tenant, and the other Tenant Parties, shall have the nonexclusive right to use the Common Area as constituted from time to time; such use to be in common with Landlord, the other members of the Landlord Group, other tenants of the Building and other persons entitled to use the same, and subject to such reasonable rules and regulations governing use of the Common Areas as Landlord may from time to time prescribe provided that written notice of such rules and regulations is provided to Tenant. Landlord may temporarily close any part of the Common Area for such periods of time as may be necessary to prevent the public from obtaining prescriptive rights or to make repairs or alterations.

 

2. TERM .

2.1 Term . The term of this Lease, and Tenant’s obligation to pay Rent under this Lease, shall commence on the Commencement Date and shall continue in effect for the Term of the Lease, as the same may be extended, or earlier terminated, in accordance with the express terms of this Lease.

2.2 Delivery of Tenant Space . Landlord shall use commercially reasonable efforts to satisfy the Commencement Date Conditions and deliver Premises-A and the Pathway to Tenant on or prior to the Target Commencement Date. Once and if Landlord completes the Commencement Date Conditions, Landlord and Tenant acknowledge and agree that, by virtue of Landlord’s delivery of the Commencement Date Notice to Tenant, Landlord shall be deemed to have delivered Premises-A and the Pathway to Tenant, and Tenant shall be deemed to have accepted the same.

2.2.1 Landlord and Tenant agree that, if the Commencement Date Conditions have occurred prior to the Target Commencement Date, Landlord shall have the right to deliver the Commencement Date Notice to Tenant, and thereby cause the Commencement Date (or the Deemed Commencement Date, pursuant to Section 2.2.4, below) to occur, on or after the Early Delivery Date, provided that Landlord will use commercially reasonable efforts to deliver the notice of the Early Delivery Date at least ten (10) days prior to the Early Delivery Date.

2.2.2 In the event that the Commencement Date Conditions have not been completed by the Target Commencement Date, subject to extension by virtue of Tenant Delay* and Force Majeure*, Landlord shall not be deemed in default hereunder, and the Commencement Date shall be postponed, as Tenant’s sole and exclusive remedy, until the date on which the Commencement Date Conditions have occurred. Notwithstanding the foregoing, in the event that Commencement Date Conditions have not occurred prior to the Outside Completion Date, subject to extension by virtue of Tenant Delay* and Force Majeure*, Tenant shall have the right, as its sole and exclusive remedy, to terminate this Lease, provided that (a) Tenant notifies Landlord of such termination prior to the earlier to occur of (1) completion of the Commencement Date Conditions; or (2) no later than ten (10) days after the Outside Completion Date; and (b) Landlord has not caused the Commencement Date Conditions to have been completed within five (5) days after its receipt of such notice of termination from Tenant. If (aa) the Commencement Date Conditions are completed prior to Tenant’s exercise of the foregoing termination right, (bb) the Commencement Date Conditions are completed within five (5) days after Tenant’s exercise of the foregoing termination right, or (cc) Tenant shall fail to exercise such termination right within ten (10) days after the Outside Completion Date, then such termination right shall, in any such event, be deemed to have expired and shall, thereafter, be of no further force or effect.

 

* Landlord agrees to use commercially reasonable efforts to provide notice to Tenant of the occurrence of such a delay reasonably contemporaneously with such occurrence. Additionally, Landlord and Tenant agree that extensions of the Target Commencement Date and the Outside Completion Date by Force Majeure shall be capped at an aggregate of one hundred (100) days of such delays.

2.2.3 Intentionally Deleted.

 

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2.2.4 Tenant agrees that, if the date of Landlord’s completion of the Commencement Date Conditions is, in effect, pushed back due to delays caused by Tenant Delay*, the Commencement Date shall, upon delivery of the Commencement Date Notice, be deemed (for the purpose of determining the first day of the Term and the first day of Rent accrual hereunder) to have been moved up to the Deemed Commencement Date. The foregoing notwithstanding, Landlord and Tenant agree that Landlord’s post-Commencement Date obligations hereunder shall, in the event of a Deemed Commencement Date, be deemed to have commenced as of the actual date that the Commencement Date Notice is delivered to Tenant.

 

* Landlord agrees to use commercially reasonable efforts to provide notice to Tenant of the occurrence of such a delay reasonably contemporaneously with such occurrence.

2.2.5 Delivery of Premises-B. Landlord and Tenant acknowledge and agree that, on the Phase II Expansion Date, Landlord shall be deemed to have delivered Premises-B to Tenant, and Tenant shall be deemed to have accepted the same. For the avoidance of doubt (and notwithstanding the fact that Premises-A and Premises-B are (or will be) constructed as one combined cage), Landlord and Tenant acknowledge and agree that Tenant shall have no right to occupy or use Premises-B (or any of the equipment or electrical power located in, provided to and/or serving such space, as applicable), until the occurrence of the Phase II Expansion Date.

2.3 Extension Options .

2.3.1 Subject to and in accordance with the terms and conditions of this Section 2.3, Tenant shall have the number of Extension Options specified in Item 6 of the Basic Lease Information to extend the Term of this Lease, for the respective Extension Terms specified in such Item 6, upon the same terms, conditions and provisions applicable to the then-current Term of this Lease (except as provided otherwise herein). The monthly Extension Term Base Rent payable with respect to the Tenant Space for each year of the Extension Term shall be increased hereunder as of the first (1 st ) day of each such year to be equal to one hundred three percent (103%) of the Base Rent payable for the immediately preceding month of the Term of the Lease, as extended.

2.3.2 Tenant may exercise each Extension Option only by delivering an Extension Option Exercise Notice to Landlord at least six (6) calendar months prior to the then applicable expiration date of the Term, specifying that Tenant is irrevocably exercising its Extension Option so as to extend the Term of this Lease by an Extension Term on the terms set forth in this Section 2.3. In the event that Tenant shall duly exercise an Extension Option, the Term shall be extended to include the applicable Extension Term (and all references to the Term in this Lease shall be deemed to refer to the Term specified in Item 5 of the Basic Lease Information, plus all duly exercised Extension Terms). In the event that Tenant shall fail to deliver an Extension Option Exercise Notice within the applicable time period specified herein for the delivery thereof, time being of the essence, at the election of Landlord, Tenant shall be deemed to have forever waived and relinquished such Extension Option, and any other options or rights to renew or extend the Term effective after the then applicable expiration date of the Term shall terminate and shall be of no further force or effect.

2.3.3 Tenant shall have the right to exercise any Extension Option only with respect to the entire Tenant Space leased by Tenant at the time that Tenant delivers the applicable Extension Option Exercise Notice. If Tenant duly exercises an Extension Option, Landlord and

 

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Tenant shall execute an amendment reflecting such exercise. Notwithstanding anything to the contrary herein, any attempted exercise by Tenant of an Extension Option shall, at the election of Landlord, be invalid, ineffective, and of no force or effect if, on the date on which Tenant delivers an Extension Option Exercise Notice, or on the date on which the Extension Term is scheduled to commence, there shall be an uncured Event of Default by Tenant under this Lease.

 

3. BASE RENT AND OTHER CHARGES .

3.1 Base Rent . Tenant shall pay Base Rent to Landlord throughout the Term of this Lease. All Base Rent shall be paid to Landlord in monthly installments in advance on the first day of each and every calendar month throughout the Term of this Lease; provided, however, that (a) the installment of Base Rent for the first (1 st ) full calendar month of the Term shall be payable upon Tenant’s execution of this Lease; and (b) if the Term of this Lease does not commence on the first day of a calendar month, the Base Rent for the Partial Month shall (i) be calculated on a per diem basis determined by dividing the Base Rent above by the total number of calendar days in such Partial Month and multiplying such amount by the number of days remaining in such Partial Month from and after (and including) the Commencement Date, and (ii) be paid by Tenant to Landlord on the Commencement Date. Except as set forth in this Section 3.1, Tenant shall not pay any installment of Rent more than one (1) month in advance.

3.2 Installation Fee . Tenant shall pay the Installation Fee to Landlord, no later than the thirtieth (30 th ) day following receipt of an invoice therefor. Landlord and Tenant acknowledge that the Installation Fee represents partial remuneration to Landlord in consideration of the costs incurred by Landlord in connection with Landlord’s Installations and otherwise in connection with Landlord’s fixturization of the Tenant Space related to this Lease.

3.3 Payments Generally . Base Rent payable hereunder by Tenant (i) shall be payable to Landlord when due, without any prior notice or demand therefor, in lawful money of the United States without any abatement, offset or deduction whatsoever (except as specifically provided otherwise herein), and (ii) shall be payable to Landlord at the address of Landlord specified in Item 12 of the Basic Lease Information (or to such other person or to such other place as Landlord may from time to time designate in writing to Tenant). All forms of Additional Rent payable hereunder by Tenant (aa) shall be payable to Landlord within thirty (30) days after Tenant’s receipt of an invoice for same, without any other notice or demand therefor, in lawful money of the United States without any abatement, offset or deduction whatsoever (except as specifically provided otherwise herein), and (bb) shall be payable to Landlord at the address of Landlord specified in Item 12 of the Basic Lease Information (or to such other person or to such other place as Landlord may from time to time designate in writing to Tenant). No receipt of money by Landlord from Tenant after the termination of this Lease, the service of any notice, the commencement of any suit, or a final judgment for possession shall reinstate, continue or extend the Term of this Lease or affect any such notice, demand, suit or judgment. No partial payment by Tenant shall be deemed to be other than on account of the full amount otherwise due, nor shall any endorsement or statement on any check or any letter accompanying any check or payment be deemed an accord and satisfaction, and Landlord shall be entitled to accept such payment without compromise or prejudice to any of the rights of Landlord hereunder or under any Applicable Laws. In the event that the Commencement Date or the expiration of the Term (or the date of any earlier termination of this Lease) falls on a date other than the first or last day of a calendar month, respectively, the Rent payable for such partial calendar month shall be prorated based on a per diem basis.

 

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3.3.1 Landlord acknowledges and agrees that the Base Rent payable to Landlord under this Lease is on a “gross” basis except as otherwise expressly set forth herein, in consideration for all costs as may be incurred by Landlord for the operation, maintenance, management, insurance and repair of the Premises, Building and Property and the real estate taxes thereon. Except as otherwise expressly provided in this Lease, Tenant shall not be responsible for payment of any of Landlord’s costs or expenses in connection with the Tenant Space, Building and Property.

3.4 Late Payments . As it relates to any Late Payment, Tenant shall, in addition to Tenant’s obligation to pay the Late Payment to Landlord, also be required to pay to Landlord, as Additional Rent, (i) a Late Charge, and (ii) Late Payment Interest from the Delinquency Date until the date the foregoing are paid, collectively, to cover Landlord’s additional administrative costs and damages related to such Late Payment, which are difficult, if not impossible, to determine. In no event, however, shall the charges permitted under this Section 3.4, or elsewhere in this Lease, to the extent the same are considered to be interest under Applicable Law, exceed the maximum lawful rate of interest. Landlord’s acceptance of any Late Charge, or any Late Payment Interest, shall not be deemed to constitute a waiver of Tenant’s default with respect to the Late Payment, nor prevent Landlord from exercising any of the other rights and remedies available to Landlord hereunder or under any Applicable Laws.

3.5 Utilities . Tenant shall pay for all electricity and/or other utilities (e.g., chilled water) serving, provided to and/or used in, or for, the Tenant Space. Tenant shall pay each Tenant’s Utility Payment to Landlord, as Additional Rent, within thirty (30) days of receipt of each Tenant’s Utility Payment invoice. The formula described in Section 3.5.1, below, has been designed to capture Tenant’s Shared Mechanical Payment. Additionally, in the event that Landlord determines that it is no longer commercially impractical to separately meter some or all of the utility costs related to some or all of the Shared Mechanical Equipment, then Landlord may, at Landlord’s sole cost and expense, cause the relevant Shared Mechanical Equipment to be separately metered to the Tenant Space. In such event, Tenant’s Utility Payment related to the newly metered Shared Mechanical Equipment shall thereafter be the separately metered cost of the shared utilities provided to, serving and/or used in, the Tenant Space by such equipment based upon the Shared Mechanical Metering Equipment (i.e., such payment would then be a Tenant’s Separately Metered Utility Payment). Landlord and Tenant acknowledge and agree that the utility costs for which Tenant shall be responsible include the actual cost of all utilities (including electricity) serving, provided to and/or used in the UPS Room and the Pump Room. For the avoidance of doubt, it is the intent of the parties that this Section 3.5 represents a mechanism only for Landlord’s cost recovery with regard to utilities (including electrical power) serving, provided to and/or used in or for the Tenant Space, and that there is no intent for Tenant’s Utility Payment to include any element of profit to Landlord in connection therewith.

3.5.1 Calculation of Tenant’s Datacenter Utility Payments .

3.5.1.1 During Periods of Premises Operation, the term Tenant’s Datacenter Utility Payment , as it relates to each Datacenter Utility Bill, shall mean the result of the following formula:

G = N x (A / B)

 

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3.5.1.2 Intentionally Deleted.

3.5.2 Periods of Premises Underutilization . Tenant acknowledges that Shared Mechanical Costs will be incurred for the operation of the Datacenter, regardless of whether there is any power being drawn in the Premises. As such, Section 3.5.1, above, notwithstanding, Landlord and Tenant hereby agree that, during Periods of Premises Underutilization, Tenant’s Shared Mechanical Payment shall be a reasonable proration of the Shared Mechanical Costs, based on the ratio that the square footage of the Premises bears to the square footage of the Datacenter.

3.5.3 Generator Fuel Usage . Additionally, Tenant shall pay the cost of all Generator Fuel Usage, except for the extent to which such Generator Fuel Usage represents Maintenance Fuel Usage or results from the gross negligence or willful misconduct of Landlord. Landlord shall bill Tenant not more frequently than monthly for the amount of the Generator Fuel Payment. Tenant shall pay the Generator Fuel Payment to Landlord, as Additional Rent, within thirty (30) days of delivery of each Generator Fuel Payment invoice. For the avoidance of doubt, it is the intent of the parties that this Section 3.5.3 represents a mechanism only for Landlord’s cost recovery with regard to non-maintenance related Generator Fuel Usage, and that there is no intent for Tenant’s Generator Fuel Payment to include any element of profit to Landlord in connection therewith.

3.5.4 Tenant’s Additional Rent Audit Right. Landlord shall keep complete books and records regarding all Additional Rent charges made by Landlord hereunder. All such records pertaining to a particular calendar year shall be retained for at least one (1) full calendar year after the expiration of such particular calendar year (i.e., all such records pertaining to the calendar year 2012 shall be retained at least until the end of the calendar 2013). Tenant shall have the right, once per twelve (12) month period during the Term, to audit the applicable Additional Rent records of Landlord to confirm that the Additional Rent charges billed to Tenant conform to the provisions of this Lease. Such right, as it relates to any calendar year, shall be exercisable by Tenant within one (1) year after the expiration of such calendar year. Landlord shall cooperate with Tenant during each such audit in providing Tenant reasonable access to Landlord’s books and records for the calculation of such items of Additional Rent during normal business hours to enable Tenant to audit such books and records. If the audit discloses any overpayment on the part of Tenant, then Tenant shall be entitled to a credit on the next succeeding installment of Additional Rent, following Landlord’s confirmation of the correctness of such audit conclusions, for an amount equal to the overcharge, and such credit shall be extended to succeeding installments of Additional Rent in the event such overcharge exceeds the amount of the next succeeding such installment. In the event the Term of this Lease has expired or been earlier terminated, then Tenant shall be entitled to a refund of such excess from Landlord within thirty (30) days after Landlord’s confirmation of the correctness of such audit conclusions. In addition, in the event such audit by Tenant discloses such an overcharge in excess of ten percent (10%) of the amount payable pursuant to this Lease, then Landlord shall pay to Tenant the reasonable costs and expenses of such audit, not to exceed Five Thousand and No/100 Dollars ($5,000.00) for any particular audit.

 

4. TAXES .

4.1 Taxes – Equipment . Tenant shall be liable for and shall pay before delinquency all Taxes – Equipment. If any such Taxes - Equipment are levied or assessed against Landlord or the Property, and if Landlord elects to pay the same, Tenant shall pay to Landlord as Additional Rent, within thirty (30) days of Landlord’s demand therefor, that part of such Taxes – Equipment for which Tenant is liable hereunder. In the event that Tenant desires to contest such Taxes – Equipment, Landlord agrees to reasonably cooperate with Tenant in connection therewith at Tenant’s cost.

4.2 Taxes – Other . Tenant shall pay to Landlord, as Additional Rent and within thirty (30) days of Landlord’s demand therefor, and in such manner and at such times as Landlord shall direct from time to time by written notice to Tenant all Taxes – Other.

 

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4.2.1 Landlord represents and warrants that, to the best of Landlord’s Actual Knowledge, (a) no Taxes-Other are due or payable with regard to this Lease as of the Effective Date of this Lease; and (b) no Taxes-Other will be due or payable with regard to this Lease with regard to the calendar year in which the Effective Date occurs.

 

5. INTENTIONALLY DELETED .

 

6. PERMITTED USE; COMPLIANCE WITH RULES AND LAWS; HAZARDOUS MATERIALS .

6.1 Permitted Use . Tenant shall use the Tenant Space only for the Permitted Use. Any other use of the Tenant Space is subject to Landlord’s prior written consent, which consent may be withheld or conditioned in Landlord’s sole and absolute discretion.

6.1.1 Limitations on Permitted Use . Tenant agrees that neither Tenant, nor any other Tenant Party, may use the Tenant Space, or operate within the Tenant Space, the Datacenter and/or the Building, in any manner, which: (i) causes or is reasonably likely to cause damage to the Property, the Building, the Datacenter, the Tenant Space or any Building System; (ii) will invalidate or otherwise violate a requirement or condition of any fire, extended coverage or any other insurance policy covering the Property, the Building, and/or the Tenant Space, or the property located therein, or will increase the cost of any of the same; (iii) constitutes a nuisance and/or otherwise unreasonably and materially interferes with other tenants’ or occupants’ use of space in the Building or otherwise at the Property, and/or any equipment, facilities or systems of any such tenant or occupant; (iv) unreasonably and materially interferes with the transmission or reception of microwave, television, radio, telephone, or other communication signals by antennas or other facilities located at the Property. Additionally, and notwithstanding anything to the contrary contained in this Section 6.1, Tenant agrees that neither Tenant, nor any other Tenant Party, may (a) operate a meet-me room in the Tenant Space or any other portion of the Building, (b) provide MMR Services in the Tenant Space or any other portion of the Building, or (c) refer to the Tenant Space as a “meet-me room”. Tenant agrees to reimburse Landlord for any losses, costs or damages caused by unauthorized parties who gain access to the Tenant Space or the Building through access cards, keys or other access devices provided to Tenant (or any other Tenant Party) by Landlord. Tenant agrees to reimburse Landlord, as Additional Rent, for any additional insurance premium charged by Landlord’s insurance carrier for any insurance policy by reason of Tenant’s failure to comply with the provisions of this Section 6.1.1.

6.2 Datacenter Rules and Regulations . Tenant’s Permitted Use shall be subject to, and Tenant, and all other Tenant Parties, shall comply fully with the Datacenter Rules and Regulations. Landlord shall have the right, from time-to-time, to change, amend and/or supplement the Datacenter Rules and Regulations as may be deemed by Landlord, in the exercise of its sole but good faith discretion, advisable for the safety, care and/or cleanliness of the Tenant Space, the Datacenter, the Building and/or the Property, and/or for the preservation of good order in any of same; provided, however, that such changes to the Datacenter Rules and Regulations may not increase Tenant’s monetary obligations under this Lease or unreasonably interfere with Tenant’s Permitted Use of the Tenant Space. In the event of a conflict between the Datacenter Rules and Regulations and the terms of this Lease, the terms of this Lease shall govern. Tenant shall be responsible for causing the other Tenant Parties to comply with the Datacenter Rules and Regulations. Landlord shall notify Tenant in writing when changes are made to Datacenter Rules and Regulations.

6.3 Compliance with Laws; Hazardous Materials .

6.3.1 Compliance with Laws . Tenant, at Tenant’s sole cost and expense, shall timely take all action required to cause all Alterations and Tenant’s (and all other Tenant Parties’) use of the Tenant Space to comply at all times during the Term of this Lease in all

 

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respects with all Applicable Laws; provided, however, that in no event shall Tenant be obligated to make improvements of a capital nature to the Premises, Building or Property except to correct work performed by Tenant or its contractors.

6.3.1.1 Landlord represents and warrants to Tenant that, as of the Effective Date (a) to the best of Landlord’s Actual Knowledge, the Building and the Premises are in material compliance with all Applicable Laws, including the requirements of all easement and encumbrance documents; (b) the Permitted Use of the Premises are permitted at the Property; (c) Landlord holds fee simple title to the Property, subject to all matters of record, and (as of the Effective Date) subject to no mortgage; (d) Landlord has full power and authority to enter into this Lease and has obtained all consents and taken all actions necessary to enable Landlord to do so; and (e) to the best of Landlord’s Actual Knowledge, no other party has any possessory right to the Premises or has claimed the same.

6.3.1.2 Except for the extent of Tenant’s obligations with regard to compliance with Applicable Laws set forth in Section 6.3.1, above, Landlord covenants to timely take all action required to cause the Building and the Premises to be in material compliance with all Applicable Laws, including the requirements of all applicable easement and encumbrance documents throughout the Term.

6.3.2 Hazardous Materials . Tenant agrees that neither Tenant, nor any other Tenant Party, shall Handle any Hazardous Materials in the Tenant Space or any portion of the Building or the Property. Additionally, Tenant agrees that neither Tenant, nor any other Tenant Party, shall use the Tenant Space in any manner which may directly or indirectly lead to any non-compliance with any Environmental Law.

6.3.2.1 Landlord hereby represents and warrants to Tenant that, to the best of Landlord’s Actual Knowledge, as of the Effective Date, (a) except for the extent to which same is disclosed in the Environmental Reports, neither the Property, nor the Building nor the Tenant Space contain any Hazardous Materials, other than those amounts and types of Hazardous Materials (e.g., the battery acid contained within the Datacenter’s batteries) that are utilized in the ordinary course of operating the Datacenter, (b) except for the extent to which same is disclosed in the Environmental Reports, neither the Property, nor the Building nor the Tenant Space contain Hazardous Materials at levels or in conditions that are in violation of applicable Environmental Laws, (b) except for the extent to which same is disclosed in the Environmental Reports, no underground storage tanks are located on the Property, (c) no Claims or actions of any sort have been brought against Landlord concerning Hazardous Materials on the Property, and (d) no investigations have been initiated against Landlord concerning Hazardous Materials on the Property.

6.3.2.2 Landlord shall indemnify, defend upon demand with counsel reasonably acceptable to Tenant and hold Tenant harmless from and against, any liabilities, losses, claims, demands, interest, penalties, fines, attorneys’ fees, experts’ fees, court costs, remediation costs, and other expenses actually incurred by Tenant as a result of the presence of any Hazardous Materials in, on, about, under or emanating from the Premises or Property as of the Effective Date of this Lease.

6.4 Electricity Consumption Threshold . Tenant’s actual electricity consumption for the Premises, as reasonably determined by Landlord pursuant to such measurement method or methods as Landlord shall employ from time to time (including, without limitation, the use of sub-meters and/or pulse meters or electrical surveys), shall not at any time, exceed the Electricity Consumption Threshold. The power drawn by all of Tenant’s Personal Property shall be included in the calculation of Tenant’s actual electricity consumption for the Premises. In the event that an ECT Overage occurs, Tenant agrees to take immediate action to cause power consumption in the Premises to be at or below the Electricity Consumption Threshold.

 

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6.5 Maximum Structural Load . Tenant shall not place a load upon the Premises or the Datacenter exceeding the Maximum Structural Load.

 

7. ACCESS CONTROL; LANDLORD’S ESSENTIAL SERVICES; INTERRUPTION OF SERVICES; SAS 70 .

7.1 Access Control . Landlord will provide Landlord’s Access Control Systems during the Term of this Lease. Landlord reserves the right, but without assuming any duty, to institute additional access control measures in order to further control and regulate access to the Building or any part thereof. Landlord shall not, under any circumstances, be responsible for providing or supplying security services to the Datacenter, the Tenant Space or any part of the Building in excess of the Landlord’s Access Control Systems (and, unless expressly agreed in writing by Landlord, Landlord shall not under any circumstances be deemed to have agreed to provide any access control services in excess of the above specified Landlord’s Access Control Systems). Tenant acknowledges and agrees that the activities of all persons in the Datacenter are and shall be subject to surveillance by video camera and/or otherwise by Landlord’s agents and employees.

7.1.1 In connection with Landlord’s Access Control Systems, Landlord agrees to maintain an authorized “access list” for the Tenant. Landlord agrees to use commercially reasonable efforts to perform “adds to” and “removals from” such authorized “access list” within one (1) hour after receiving any written notice of such request that is provided between the hours of 8:00am and 5:00pm on business days.

7.1.2 Landlord agrees (a) to retain the recordings of the Datacenter’s and Common Area’s video surveillance system for at least a rolling period of thirty (30) consecutive days, and (b) to provide Tenant access to such recordings within a reasonable period (being no more than 2 business days) following Landlord’s receipt of written request for access to same.

7.2 Landlord’s Essential Services . Landlord’s agreement to provide Landlord’s Essential Services and Tenant’s remedies for Interruptions of Landlord’s Essential Services, are described on Exhibit “F” , attached hereto.

7.3 Interruption of Services . Landlord shall not be liable or responsible to Tenant for any loss, damage or expense of any type which Tenant may sustain or incur if the quantity or character of the utility-provided electric service is changed, is no longer available, or is no longer suitable for Tenant’s requirements, except as expressly set forth on Exhibit “F” , attached hereto, with regard to Interruptions of Essential Services. Additionally, except as expressly set forth on Exhibit “F”, attached hereto, with regard to Interruptions of Essential Services , no interruption or malfunction of any electrical or other service to the Premises, or to any other portion of the Building or Property, shall, in any event, (i) constitute an eviction or disturbance of Tenant’s use and possession of the Tenant Space, (ii) constitute a breach by Landlord of any of Landlord’s obligations under this Lease, (iii) render Landlord liable for damages of any type or entitle Tenant to be relieved from any of Tenant’s obligations under this Lease (including the obligation to pay Base Rent, Additional Rent, or other charges), (iv) grant Tenant any right of setoff or recoupment, (v) provide Tenant with any right to terminate this Lease, or (vi) make Landlord liable for any injury to or interference with Tenant’s business or any punitive, incidental or Consequential Damages, whether foreseeable or not, whether arising from or relating to the making of or failure to make any repairs, alterations or improvements, or whether arising from or related to the provision of or failure to provide for or to restore

 

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any service in or to any portion of the Property, the Building or the Datacenter . In the event of the interruption of any such service, however, Landlord shall employ commercially reasonable efforts to restore such service or cause the same to be restored in any circumstances in which such restoration is within the reasonable control of Landlord.

7.4 SAS-70 Reporting. Landlord agrees to reasonably cooperate with Tenant, at no cost to Tenant, in regards to Tenant’s conduct of any audit of (a) Tenant’s operations in the Tenant Space and/or (b) the maintenance and operation of the Building, performed in accordance Statement on Auditing Standards Number 70, as promulgated by the American Institute of Certified Public Accountants (a “ SAS 70 Audit ”), or similar regulations, including by providing reasonable access to Landlord’s records with respect to the maintenance and operation of the Building. Additionally, in the event that Landlord causes a SAS 70 Audit to be performed with regard to (a) or (b), above, during the Term of the Lease, Landlord agrees to provide Tenant (within thirty (30) days after Landlord’s receipt of same) a copy of the final report that Landlord receives as a result of each such SAS 70 Audit, except that Landlord shall be permitted to redact from each such report any information that relates to (i) any premises in the Building other than the Premises; and/or (ii) any tenant in the Building other than Tenant.

7.5 Self-Help Restriction . Landlord and Tenant acknowledge and agree that, due to the “shared” nature of the Datacenter and the electrical and mechanical infrastructure serving same, Tenant shall not have the right to perform any of Landlord’s maintenance and/or repair obligations under Section 8.1, above (such a right is referred to herein as a “ Self-Help Right ”).

 

8. MAINTENANCE; ALTERATIONS; REMOVAL OF TENANT’S PERSONAL PROPERTY .

8.1 Landlord’s Maintenance . Except as expressly provided in this Section 8.1, Landlord shall have no obligation to repair and/or maintain the Tenant Space. Landlord will maintain and keep in good repair at Landlord’s sole cost and expense the Pathway, the PDUs serving the Premises, Landlord’s Access Control Systems, the HVAC system and plumbing, if any, serving the Premises, the UPS Plant serving the Premises, the Back-Up Power, the fire suppression systems serving the Premises, the Common Area cable management systems (comprised of ladder racks, fiber trays, under-floor cable trays and other similar equipment located within the Common Areas that are installed for the benefit of all tenants of the Building), the floors and foundation of the Building, the exterior walls and windows of the Building, the roof of the Building, the Common Areas, and the Common Area HVAC system within the Building.

8.1.1 PM Standards . Tenant acknowledges that Landlord’s PM Standards shall be updated on at least an annual basis. Landlord shall provide Tenant with Landlord’s PM Schedule as far in advance as is reasonably practicable. Landlord agrees to perform the PM Activities and to substantially adhere to the then current PM Schedule in connection with such performance.

8.1.2 Tenant’s PM Audit . During the Term, Tenant shall have the right, once per rolling six (6) month period, to perform a PM Audit. Tenant shall exercise the foregoing right by delivering its PM Audit Notice to Landlord no less than thirty (30) days before the date upon which Tenant desires to perform its PM Audit. The PM Audit Notice must detail the equipment for which Tenant wishes to inspect the PM Books and Records. Any such PM Audit shall be performed during Landlord’s normal business hours at a time and location within the Building reasonably designated by Landlord. Landlord shall respond to Tenant’s PM Audit Notice within five (5) business days after Landlord’s receipt of Tenant’s PM Audit Notice with the date, time and location of Tenant’s PM Audit. If Tenant’s PM Audit reveals that Landlord is delinquent in complying with the PM Schedule, Tenant shall deliver written notice to Landlord of such delinquency, and Landlord shall cure such delinquency within the time allowed pursuant to Section 16.1.1 of this Lease.

 

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8.2 Tenant’s Maintenance . During the Term of this Lease, Tenant shall, at Tenant’s sole cost and expense, maintain the Tenant Space and Tenant’s equipment therein in good order and in a clean and safe condition. If Tenant fails to perform its covenants of maintenance and repair hereunder, or if Tenant or any of Tenant’s technicians or representatives physically damages the Property, the Building or any portion of any of the above, or the personal property of any other tenant or occupant, or causes an interruption of services to the Premises, the Datacenter and/or in the Building, Landlord may, but shall not be obligated to, perform all necessary or appropriate maintenance and repair, and any amounts expended by Landlord in connection therewith, plus an administrative charge of ten percent (10%) of such amounts, shall be reimbursed by Tenant to Landlord as Additional Rent within thirty (30) days after Landlord’s demand therefor.

8.3 Alterations .

8.3.1 Notwithstanding any provision in this Lease to the contrary, Tenant shall not make or cause to be made any Alterations to the Tenant Space, the Datacenter, or any other portion of the Building or Property without the prior written consent and approval of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. The foregoing notwithstanding, Landlord’s consent shall not be required for any usual and customary installations, repairs, maintenance, and removals of electrical distribution equipment downstream of the PDUs in the Premises, equipment and telecommunication cables within the Tenant Space if and to the extent that such installations, repairs, maintenance, and removals (i) are usual and customary within the industry, (ii) are in compliance with the Datacenter Rules and Regulations, and (iii) will not adversely affect the Building’s structure, the provision of services to other Building tenants, or the Building’s electrical, plumbing, HVAC, life safety or mechanical systems. Landlord and Tenant acknowledge and agree that (a) Landlord’s Installations are hereby deemed to be Alterations hereunder; and (b) all Landlord’s Installations shall be left as part of the Tenant Space, upon the expiration or earlier termination of this Lease, in good and operable condition, ordinary wear and tear and damage by fire or other casualty excepted.

8.3.2 Each request for Alterations consent must contain one (1) full size hard copy of all drawings together with one (1) full set of drawings on CD.

8.3.3 In any instance where Tenant desires to conduct Alterations, Tenant’s contractors, laborers, material men and others furnishing labor or materials for Tenant’s job must work in harmony, and not interfere, with any labor utilized by Landlord, Landlord’s contractors or mechanics or by any other tenant or such other tenant’s contractors or mechanics; and if at any time such entry by one (1) or more persons furnishing labor or materials for Tenant’s work shall cause disharmony or interference for any reason whatsoever without regard to fault, the consent granted by Landlord to Tenant and/or the express or implied permission for such persons to enter the Premises may be withdrawn at any time upon written notice to Tenant. Additionally, all such contractors, laborers, material men and others must obtain (and provide Landlord evidence of) such insurance as Landlord may reasonably require, prior to any such entry; provided that, in no event shall such insurance requirements exceed those that are described on Exhibit “B-1” , attached hereto.

8.4 Removal of Tenant’s Personal Property . Tenant agrees that, upon the expiration or earlier termination of this Lease, Tenant shall at Tenant’s sole cost and expense, promptly remove all of Tenant’s Personal Property, and shall restore those portions of the Building, the Datacenter, and/or the Tenant Space damaged by such removal of (or by the initial installation of) such Tenant’s Personal Property to their condition existing immediately prior to the installation or placement of such items (including, without limitation, the replacement of all damaged floor tiles in the Premises), ordinary wear and tear and damage by fire or other casualty excepted. If Tenant fails to promptly remove any such Tenant’s Personal Property pursuant to this Section 8.4, Landlord shall have the right to cause the removal of such Tenant’s Personal Property and the restoration of those portions of the Building, the Datacenter, and/or the Tenant Space damaged by such removal to their condition existing immediately prior to the installation or placement of such Tenant’s Personal Property, ordinary wear and tear excepted, in which case Tenant agrees to reimburse Landlord within thirty (30) days of Landlord’s demand therefor, for all of Landlord’s actual and reasonable out of pocket costs of removal and restoration plus an administrative fee equal to five percent (5%) of such costs.

 

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9. CASUALTY EVENTS; TAKINGS; INSURANCE .

9.1 Casualty Events; Takings .

9.1.1 Casualty Events . If, during the Term of this Lease, any portion of the Building, the Datacenter, or the Tenant Space shall be damaged or destroyed, in whole or in part, by a Casualty Event, Landlord shall, subject to the terms of this Section 9.1.1, and Sections 9.1.1.1 and 9.1.1.2, below, cause the Casualty Repair to occur. Landlord shall provide the Casualty Repair Notice to Tenant as soon as is reasonably practicable following the Casualty Event. For the avoidance of doubt, however, such repair and reconstruction obligation shall not be deemed to include any obligation on the part of Landlord with regard to any Alteration other than Landlord’s Installations, nor any of Tenant’s Personal Property.

9.1.1.1 Landlord’s Termination Right . Notwithstanding the foregoing, in the event that the Repair Period-Estimated exceeds ninety (90) days, Landlord shall have the right to terminate this Lease by, and effective upon, written notice to Tenant as part of the Casualty Repair Notice.

9.1.1.2 Tenant’s Termination Right . If (a) a Casualty Event causes damage to the Tenant Space, or (b) a Casualty Event causes damage to the Building, such that Tenant is prevented from accessing the Premises or Tenant’s use of the Premises/Pathway for the Permitted Use is materially impaired, then Tenant shall have the right to terminate this Lease by, and effective upon, written notice to Landlord if (i) the Repair Period-Estimated exceeds ninety (90) days (in which case Tenant must provide written notice to Landlord of such termination within sixty (60) days after Tenant’s receipt of the Casualty Repair Notice), or (ii) the Repair Period-Actual exceeds ninety (90) days (in which case Tenant must provide written notice to Landlord of such termination prior to the one hundredth (100 th ) day of the Repair Period-Actual).

9.1.1.3 Casualty-Complete . The foregoing notwithstanding, in the event of a Casualty-Complete, this Lease shall automatically terminate as of the date of the Casualty-Complete.

9.1.1.4 Base Rent Abatement – Casualty Events . In the event that this Lease is terminated pursuant to Sections 9.1.1.1, 9.1.1.2 or 9.1.1.3, above, Landlord shall refund to Tenant any prepaid Base Rent, less any sum then owing to Landlord by Tenant. If, however, this Lease is not terminated pursuant to any of said Sections, Base Rent shall be abated proportionately during the Repair Period-Actual to the extent that the Tenant Space (i) is unfit for use by Tenant in the ordinary conduct of Tenant’s business, and (ii) actually is not used by Tenant.

9.1.2 Takings .

9.1.2.1 Total Taking . If all or substantially all of the Tenant Space, the Building or the Property shall be the subject of a Taking, this Lease shall terminate as of the date of the vesting of title in the condemning authority.

9.1.2.2 Partial Taking . If only a part of the Tenant Space, the Building or the Property shall be the subject of a Taking, this Lease shall continue in full force and effect, subject to the terms of Sections 9.1.2.3-9.1.2.7, below.

9.1.2.3 Landlord’s Termination Right – Partial Taking . If the part of the Building or the Property that is taken or condemned as part of the Taking contains a part of the Tenant Space, the Building or the Property that, in Landlord’s reasonable discretion, is material to the operation of the Tenant Space, Landlord may terminate this Lease by notice to Tenant given within sixty (60) days following the date upon which Landlord received notice of such Taking. If Landlord so notifies Tenant, this Lease shall terminate upon the date set forth in the notice, which date shall not be more than thirty (30) days following the giving of such notice.

9.1.2.4 Tenant’s Termination Right – Partial Taking . If the part of the Building or the Property that is taken or condemned as part of the Taking contains any portion of the Premises that existed immediately prior to such Taking, or if, by reason of such Taking, Tenant no longer has reasonable means of access to the Tenant Space or Tenant’s Permitted Use of the Premises is materially impaired, Tenant may terminate this Lease by notice to Landlord given within sixty (60) days following the date upon which Tenant received notice of such Taking. If Tenant so notifies Landlord, this Lease shall terminate upon the date set forth in the notice, which date shall not be more than thirty (30) days following the giving of such notice.

 

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9.1.2.5 Restoration – Taking . If this Lease shall not have been terminated pursuant to Sections 9.1.2.3 or 9.1.2.4, above, Landlord, at Landlord’s expense, shall, as soon as is reasonably practicable, restore that part of the Tenant Space that was not taken or condemned as part of the Taking to a self-contained rental unit substantially equivalent (with respect to character, quality, appearance and services) to that which existed immediately prior to occurrence of the Taking, excluding Tenant’s Personal Property; provided, however, that in the event Tenant receives an award for Tenant’s Alterations, such amounts shall be applied towards the restoration of such items.

9.1.2.6 Base Rent Abatement – Taking . In the event that this Lease is terminated pursuant to Sections 9.1.2.1, 9.1.2.3 or 9.1.2.4, above, Landlord shall refund to Tenant any prepaid Base Rent, less any sum then owing to Landlord by Tenant. If, however, this Lease is not terminated pursuant to any of said Sections, Base Rent shall be reduced proportionately to the extent that the Premises is reduced as a result of the Taking.

9.1.2.7 Taking Award Rights . Landlord reserves the right to receive the entirety of the condemning authority’s award related to a Taking of any portion of the Property. The foregoing notwithstanding, in the event that this Lease is terminated in connection with any Taking, Landlord expressly permits Tenant to make a separate claim against the condemning authority, in any appropriate proceeding, for the value of Tenant’s unamortized, but taken, leasehold improvements or other improvements to the Tenant Space made by Tenant and for Tenant’s moving expenses related to such Taking, but only if such claim and/or recovery does not reduce the condemnation/taking award otherwise payable to Landlord in connection with such Taking. If any such award that is made, or compensation that is paid, to either party specifically includes an award or amount for the other, the party first receiving the same shall promptly make an accounting of same to the other.

9.1.3 Tenant’s Remedy . Tenant’s termination rights and rights to Base Rent abatement, to the extent provided above in this Article 9, shall be Tenant’s sole and exclusive remedies in the event of a Casualty Event or Taking.

9.2 Tenant’s Insurance . Tenant shall, at Tenant’s expense, procure and maintain throughout the Term of this Lease a policy or policies of insurance in accordance with the terms and requirements set forth in Exhibit “B-1” to this Lease. All of Tenant’s insurance policies with respect to the Tenant Space shall be endorsed so as to include a waiver of subrogation in accordance with and to the full extent of Tenant’s waiver of claims with respect to the Landlord Group set forth in Section 14.1.1 of this Lease.

9.2.1 The commercial general liability policies procured by Tenant hereunder shall name Landlord and Landlord’s managing agent, and any Holders designated by Landlord as additional insureds. Prior to occupying the Tenant Space, and prior to the expiration of each such policy, Tenant shall submit to Landlord certificates of insurance evidencing such policies (and the applicable renewals thereof) being in effect. All insurance policies procured hereunder shall contain a provision stating that the insurer shall endeavor to provide at least thirty (30) days’ written notice to Landlord and all others named as additional insureds prior to any cancellation or material modification of such policy.

9.3 Landlord’s Insurance . Landlord shall, at Landlord’s expense, procure and maintain throughout the Term of this Lease a policy or policies of insurance in accordance with the terms and requirements set forth in Exhibit “B-2” to this Lease. Each of such insurance policies shall be endorsed so as to include a waiver of subrogation in accordance with and to the full extent of Landlord’s waiver of claims with respect to the Tenant Group set forth in Section 14.1.2 of this Lease. For the avoidance of doubt, however, Landlord and Tenant acknowledge and agree that, in no event, shall Landlord be obligated to carry any insurance covering any of Tenant’s Personal Property, any Alteration to the Tenant Space made by or on behalf of Tenant, or covering any Tenant Party.

 

10. TRANSFERS .

10.1 Restrictions on Transfers; Landlord’s Consent . Except as otherwise expressly set forth in Section 10.1.1 and Section 10.5, below, to the contrary, Tenant shall not effect a Transfer, without Landlord’s express prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Except as

 

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otherwise expressly set forth in this Lease, no Transfer (whether voluntary, involuntary or by operation of law) shall be valid or effective without Landlord’s prior written consent and, at Landlord’s election, any such Transfer or attempted Transfer shall constitute an Event of Default by Tenant under Section 15.1.2 of this Lease.

10.1.1 Permitted Transfer . Notwithstanding anything to the contrary in this Lease, Tenant may, without the consent of Landlord (and without being subject to Landlord’s recapture rights under Section 10.3, below) undertake Permitted Transfers.

10.2 Notice to Landlord . If Tenant desires to make any Transfer (other than a Permitted Transfer, for which Tenant must merely notify Landlord prior to the occurrence of same), then at least ten (10) business days (but no more than one hundred eighty (180) days) prior to the proposed effective date of the Transfer, Tenant shall submit a Transfer Notice to Landlord. If, thereafter, Tenant modifies any of the terms and conditions relevant to a proposed Transfer specified in the Transfer Notice, Tenant agrees to re-submit such Transfer Notice to Landlord for its consent pursuant to all of the terms and conditions of this Article 10.

10.3 Landlord’s Recapture Rights . Except with regard to a Permitted Transfer, at any time within ten (10) business days after Landlord’s receipt of all (but not less than all) of the information and documents described in Section 10.2, Landlord shall have the right (but not the obligation), exercisable by written notice to Tenant, to elect to cancel and terminate this Lease.

10.4 No Release; Subsequent Transfers . No Transfer (whether or not a Permitted Transfer) will release the undersigned Tenant from Tenant’s obligations under this Lease or alter the primary liability of the undersigned Tenant to pay the Rent and to perform all other obligations to be performed by Tenant hereunder. In no event shall the acceptance of any payment by Landlord from any other person be deemed to be a waiver by Landlord of any provision hereof. Consent by Landlord to one Transfer will not be deemed consent to any subsequent Transfer. In the event of breach by any Transferee in the performance of any of the terms hereof, Landlord may proceed directly against the undersigned Tenant without the necessity of exhausting remedies against such Transferee.

10.5 Colocation . Landlord acknowledges that the business to be conducted by the undersigned Tenant in the Premises may require Tenant to enter into Colocation Agreements that will permit Colocation Parties to engage in Colocation Activities. Landlord expressly agrees that Tenant may, without the need for Landlord’s consent, enter into such Colocation Agreements; provided, however, that (a) the Colocation Agreements, and each Colocation Party’s use of the Tenant Space, must comply with the terms of this Lease (including the Datacenter Rules and Regulations) and all Applicable Laws; (b) the Colocation Agreements, and the Colocation Parties’ rights thereunder, shall be subject and subordinate at all times to this Lease and all of its provisions, covenants and conditions; and (c) in no event may the rights of any Colocation Party, vis a vis the members of the Landlord Group, be greater than the rights of Tenant hereunder. Anything to the contrary contained herein notwithstanding, Landlord and Tenant acknowledge and agree that the Colocation Agreements shall not constitute, or be deemed to be, the grant of a leasehold interest, or otherwise constitute, or be deemed to be, a real property interest.

10.6 Excess Rent . Landlord and Tenant agree that, if Tenant assigns this Lease, or subleases any part of the Tenant Space, for any Excess Rent, then Tenant shall pay to Landlord, as Additional Rent, fifty percent (50%) of any such Excess Rent immediately upon Tenant’s receipt thereof.

11. ESTOPPEL CERTIFICATES . At any time and from time to time, within fifteen (15) days after written request by Landlord, Tenant shall execute, acknowledge and deliver to Landlord a statement in writing certifying all matters relating to this Lease reasonably requested by Landlord and/or any prospective purchaser of the Building and/or the Property and/or any Holder. Tenant acknowledges and agrees that any statement delivered (or to be delivered) pursuant to this Article 11 may be relied upon by Landlord and any prospective purchaser of the Building and/or the Property and by any current and/or prospective Holder, and any assignee of any such Holder.

 

12. SUBORDINATION AND ATTORNMENT; HOLDER RIGHTS .

12.1 Subordination and Attornment . Without the necessity of any additional document being executed by Tenant for the purpose of effecting a subordination, and at the election of Landlord or any Holder, this Lease will be subject and subordinate at all times to all Security Documents, which may now exist or hereafter be

 

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executed which constitute a lien upon or affect the Property or any portion thereof, or Landlord’s interest and estate in any of said items. Notwithstanding the foregoing, Landlord reserves the right to subordinate (or cause the subordination of) any such Security Documents to this Lease. In the event of any termination or transfer of Landlord’s estate or interest in the Property, the Building, the Datacenter or the Tenant Space by reason of any termination or foreclosure of any such Security Documents (and notwithstanding any subordination of such Security Document to this Lease that may or may not have occurred), at the election of Landlord’s successor in interest, Tenant agrees to attorn to and become the tenant of such successor, in which event Tenant’s right to possession of the Property will not be disturbed as long as Tenant is not in default under this Lease beyond applicable notice or cure periods. Tenant hereby waives any right under any Applicable Law or otherwise to terminate or otherwise adversely affect this Lease and the obligations of Tenant hereunder in the event of any termination or transfer of Landlord’s estate or interest in the Property, the Building, the Datacenter, or the Tenant Space by reason of any termination or foreclosure of any such Security Documents. Tenant covenants and agrees to execute and deliver, within fifteen (15) days of receipt thereof, and in the form reasonably required by Landlord or any Holder, any additional documents evidencing the priority or subordination of this Lease and Tenant’s agreement to attorn with respect to any such Security Document; provided, however, any such agreement subordinating this Lease to such lease, mortgage or deed of trust shall contain a non-disturbance provision that is reasonably acceptable to such Holder, Landlord and Tenant in accordance with Section 12.3, below.

12.2 Holder Protection . Tenant agrees to give each Noticed Holder, by registered or certified mail, a copy of any notice of default served upon the Landlord by Tenant. Tenant further agrees that if Landlord shall have failed to cure such default within thirty (30) days after such notice to Landlord (or if such default cannot be cured or corrected within that time, then within such additional time as may be necessary if Landlord has commenced such cure within such thirty (30) days and is diligently pursuing the remedies or steps necessary to cure or correct such default), then, prior to Tenant pursuing any remedy for such default provided hereunder, at law or in equity, any Noticed Holder shall have an additional thirty (30) days within which to cure or correct such default (or if such default cannot reasonably be cured or corrected within that time, then such additional time as may be necessary if the Noticed Holder has commenced within such thirty (30) days and is diligently pursuing the remedies or steps necessary to cure or correct such default).

12.3 SNDA . Simultaneously with execution of this Lease if the Building is subject to any Security Document, or if the Building is not so subject as of the Effective Date, then at any time that the Building is hereafter made subject to any Security Document(s), Landlord shall use commercially reasonable good faith efforts to cause the Holder to deliver an SNDA to Tenant. Notwithstanding anything herein to the contrary, the subordination of this Lease to any Security Document hereafter placed upon the Building, and Tenant’s agreement to attorn to the Holder as provided in this Article 12, shall be conditioned upon the Holder entering into an SNDA.

 

13. SURRENDER OF TENANT SPACE; HOLDING OVER .

13.1 Tenant’s Method of Surrender . Upon the expiration of the Term of this Lease, or upon any earlier termination of this Lease or the termination of Tenant’s right to possess the Tenant Space, Tenant shall, subject to the provisions of this Article 13 and Section 8.4, quit and surrender possession of the Tenant Space to Landlord in good working order and clean condition, ordinary wear and tear excepted.

13.2 Disposal of Tenant’s Personal Property . If any property not belonging to Landlord remains in the Tenant Space after the expiration of, or within fifteen (15) days after any earlier termination of, the Term of this Lease or the termination of Tenant’s right to possess the Tenant Space, Tenant shall be deemed to have abandoned such property and to have authorized Landlord to make such disposition of such property as Landlord may desire without liability for compensation or damages to Tenant or any other Tenant Party.

13.3 Holding Over . If Tenant should remain in possession of all or any portion of the Tenant Space after the expiration of the Term of this Lease (or any earlier termination of this Lease or the termination of Tenant’s right to possess the Tenant Space), without the execution by Landlord and Tenant of a new lease or an extension of the Term of this Lease, then Tenant shall be deemed to be occupying the entire Tenant Space as a tenant-at-sufferance, upon all of the terms contained herein, except as to term and Base Rent and any other provision reasonably determined by Landlord to be inapplicable. During any such holdover period, Tenant shall pay to Landlord a monthly Base Rent in an amount equal to one hundred fifty percent (150%) of the Base Rent payable by

 

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Tenant to Landlord during the last month of the Term of this Lease and one hundred percent (100%) of the Additional Rent payable by Tenant to Landlord during the last month of the Term of this Lease. The monthly rent payable for such holdover period shall in no event be construed as a penalty or as liquidated damages for such retention of possession, nor shall such monthly rent be considered to be any form of Consequential Damages related to such retention of possession. Neither any provision hereof nor any acceptance by Landlord of any rent after any such expiration or earlier termination shall be deemed a consent to any holdover hereunder or result in a renewal of this Lease or an extension of the Term, or any waiver of any of Landlord’s rights or remedies with respect to such holdover. As such, and notwithstanding any provision to the contrary contained herein, Landlord expressly reserves the right to require Tenant to surrender possession of the Tenant Space upon the expiration of the Term of this Lease or upon the earlier termination hereof or at any time during any holdover and the right to assert any remedy at law or in equity to evict Tenant and collect damages in connection with any such holdover.

13.4 Survival . The provisions of this Article 13 shall survive the expiration or early termination of this Lease.

 

14. WAIVERS; INDEMNIFICATION; CONSEQUENTIAL DAMAGES; LIENS .

14.1 Waivers .

14.1.1 Tenant hereby waives its rights against the Landlord Group with respect to any claims or damages or losses for bodily injury to persons and/or damage to any Tenant’s Personal Property, which are caused by or result from (i) risks insured against under any insurance policies which are required to be obtained and maintained by Tenant under this Lease, and were, in fact, carried by Tenant at the time of such claim, damage, loss or injury, or (ii) risks which would have been covered under any insurance required to be obtained and maintained by Tenant under this Lease had such insurance been obtained and maintained as required, including all such claims, damages and losses, which are caused by or result from the negligence or willful misconduct of any member of the Landlord Group . The foregoing waivers shall be in addition to, and not a limitation of, any other waivers or releases contained in this Lease.

14.1.2 Landlord hereby waives its rights against the Tenant Group with respect to any claims or damages or losses for bodily injury to persons and/or for damage to the Building, the Property and/or Landlord’s equipment and fixtures, which are caused by or result from (i) risks insured against under any insurance policies which are required to be obtained and maintained by Landlord under this Lease and that were, in fact, carried by Landlord at the time of such claim, damage, loss or injury, or (ii) risks which would have been covered under any insurance required to be obtained and maintained by Landlord under this Lease had such insurance been obtained and maintained as required , including all such claims, damages and losses, which are caused by or result from the negligence or willful misconduct of any member of the Tenant Group . The foregoing waivers shall be in addition to, and not a limitation of, any other waivers or releases contained in this Lease.

14.2 Indemnification .

14.2.1 Indemnification by Tenant.

14.2.1.1 Tenant hereby agrees to indemnify, defend, and hold harmless Landlord and the other members of the Landlord Group from and against (and to reimburse Landlord and the other members of the Landlord Group for) any and all Claims arising from and/or in connection with:

(i) the use or occupancy of the Tenant Space or any portion of the Building or the Property by Tenant or any other Tenant Party and/or any person claiming by, through or under Tenant or any other Tenant Party, including, without limitation:

(a) Claims related to any Colocation Agreement;

(b) the acts or omissions of any Colocating Party;

 

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(c) the payment (or non-payment) of Taxes – Equipment;

(d) the malfunctioning of Tenant’s Security System;

(e) Claims related to any of Tenant’s Personal Property;

(f) Claims by any Tenant Party (or any individual accessing the Tenant Space on any Tenant Party’s behalf) for bodily injury;

(g) Tenant’s failure to surrender the Tenant Space upon the expiration or any earlier termination of this Lease or the termination of Tenant’s right to possess the Tenant Space in accordance with the terms of this Lease; and

(h) the removal, exercise of dominion over and/or disposition of any of Tenant’s Personal Property that is left in the Tenant Space after the expiration of the Term of this Lease in violation of Section 13.2.

(ii) the active gross negligence or willful misconduct of Tenant or any other Tenant Party with respect to the Tenant Space, the Building or the Property;

(iii) any person or entity, other than the Tenant’s Broker listed in Item 13 of the Basic Lease Information, making a claim for any commission or other compensation in connection with the execution of this Lease or the leasing of the Tenant Space to Tenant if based on an allegation that such claimant dealt through Tenant.

14.2.1.2 The foregoing notwithstanding, Tenant shall not be required to indemnify Landlord or any other member of the Landlord Group to the extent that the relevant Claims were caused by the active gross negligence or willful misconduct of any member of the Landlord Group.

14.2.1.3 In the event that any action or proceeding is brought against Landlord or any other member of the Landlord Group by reason of any indemnified Claim, Tenant, upon notice from Landlord, shall defend such action or proceeding at Tenant’s cost and expense by counsel reasonably approved by Landlord. Tenant agrees that no settlement offer shall be offered or accepted by Tenant in connection with any such indemnification and/or defense without Landlord’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. This indemnity provision and Tenant’s obligations under this Section 14.2 shall survive the expiration or termination of this Lease as to any matters arising prior to such expiration or termination or prior to Tenant’s vacation of the Tenant Space and the Building. Notwithstanding any provision to the contrary contained in this Section 14.2, nothing contained in this Section 14.2 shall be interpreted or used in any way to affect, limit, reduce or abrogate any insurance coverage provided by any insurer to either Tenant or Landlord.

14.2.2 Indemnification by Landlord . Landlord hereby agrees to defend, indemnify, and hold harmless Tenant and the other members of the Tenant Group from and against (and to reimburse Tenant and the other members of the Tenant Group for) all Claims to the extent arising from or in connection with the active gross negligence or willful misconduct of Landlord or any member of the Landlord Group at the Property.

14.2.2.1 The foregoing notwithstanding, Landlord shall not be required to indemnify Tenant or any other member of the Tenant Group to the extent that the relevant Claims were caused by the active gross negligence or willful misconduct of any member of the Tenant Group.

14.2.2.2 In the event that any action or proceeding is brought against Tenant or any other member of the Tenant Group by reason of any indemnified Claim, Landlord

 

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upon notice from Tenant shall defend such action or proceeding at Landlord’s cost and expense by counsel reasonably approved by Tenant. Landlord agrees that no settlement offer shall be offered or accepted by Landlord in connection with any such indemnification and/or defense without Tenant’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. This indemnity provision and Landlord’s obligations under this Section 14.2 shall survive the expiration or termination of this Lease as to any matters arising prior to such expiration or termination. Notwithstanding any provision to the contrary contained in this Section 14.2, nothing contained in this Section 14.2 shall be interpreted or used in any way to affect, limit, reduce or abrogate any insurance coverage provided by any insurer to either Tenant or Landlord.

14.3 Consequential Damages . Notwithstanding anything to the contrary (express or implied) contained herein, under no circumstances whatsoever shall Landlord or Tenant ever be liable under this Lease for first-party or third-party Consequential Damages; provided, however, that Tenant hereby agrees to indemnify and hold Landlord and the other members of the Landlord Group harmless with regard to (and to reimburse Landlord and any other members of the Landlord Group for) any and all claims by, through, or under any Tenant Space Customer for Consequential Damages related to any use of the Tenant Space or any equipment located within the Tenant Space , excluding all such claims, if any, which arise as a result of the gross negligence of the Landlord Group .

14.4 Liens . Notwithstanding anything to the contrary herein, in no event shall Tenant have any right (express or implied) to create or permit there to be established any lien or encumbrance of any nature against the Tenant Space, the Building or the Property or against Landlord’s or Tenant’s interest therein or hereunder, including, without limitation, for any improvement or improvements by Tenant, and Tenant shall fully pay the cost of any improvement or improvements made or contracted for by Tenant. Tenant shall require each contractor which it engages to perform any improvements or alterations within the Tenant Space or elsewhere in the Building or the Property, to acknowledge and agree in writing that it is performing its work under its agreement with Tenant solely for the benefit of Tenant and that Tenant is not acting as Landlord’s agent. Any mechanic’s lien filed against the Tenant Space, the Building or the Property, or any portion of any of the above, for work claimed to have been done, or materials claimed to have been furnished to Tenant, shall be duly discharged or bonded off by Tenant within thirty (30) days after notice to Tenant of the filing of the lien.

 

15. TENANT DEFAULT .

15.1 Events of Default By Tenant . Each of the following shall constitute an Event of Default by Tenant under this Lease:

15.1.1 Any failure or refusal by Tenant to timely pay any undisputed* portions of Rent or other payments or charges required to be paid hereunder, within ten (10) days of notice that the same is due.

 

* In order to be considered to have been properly disputed, the relevant amount(s) must have been timely disputed in good faith in writing by Tenant prior to the due date thereof.

15.1.2 Any failure by Tenant to perform or observe any other covenant or condition of this Lease (including, without limitation, those contained in the Datacenter Rules and Regulations) to be performed or observed by Tenant (other than those described in Section 15.1.1, above or Sections 15.1.3, 15.1.4, or 15.1.5, below) if such failure continues for a period of thirty (30) days following written notice to Tenant of such failure; provided, however, that in the event Tenant’s failure to perform or observe any covenant or condition of this Lease to be performed or observed by Tenant cannot reasonably be cured within thirty (30) days following written notice to Tenant, Tenant shall not be in default if Tenant commences to cure same within such thirty (30) day period and thereafter diligently prosecutes the curing thereof to completion.

 

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15.1.2.1 Event of Default-ECT Overage . Section 15.1.2, above, notwithstanding, it shall be an Event of Default by Tenant (i) if Tenant fails to remedy* an ECT Overage within one hundred twenty (120) hours after its receipt of an ECT Default Notice, and/or (ii) if three (3) separate and distinct ECT Overages occur in any rolling thirty (30) day period.

 

* In connection with this Section 15.1.2.1, the term “remedy” shall mean and refer to a meaningful and relatively permanent remedy of the condition causing the ECT Overage.

15.1.3 The filing or execution or occurrence of any one of the following provided the same is not dismissed or otherwise rectified within sixty (60) days: (i) a petition in bankruptcy or other insolvency proceeding by or against Tenant, (ii) a petition or answer seeking relief for Tenant under any provision of the Bankruptcy Act, (iii) an assignment by Tenant for the benefit of creditors, (iv) a petition or other proceeding by or against Tenant for the appointment of a trustee, receiver or liquidator of Tenant or any of Tenant’s property, (v) a proceeding by any governmental authority for the dissolution or liquidation of Tenant, or (vi) any other instance whereby Tenant or any general partner of Tenant or any guarantor of Tenant’s obligations under this Lease shall cease doing business as a going concern.

15.1.4 Any failure by Tenant to execute and deliver any statement or document described in Article 11, Section 12.1 or Section 17.21 requested to be so executed and delivered by Landlord within the time periods specified in such Article or Section, where such failure continues for ten (10) days after delivery of written notice of such failure by Landlord to Tenant.

The parties hereto acknowledge and agree that all of the notice periods provided in this Section 15.1 are in lieu of, and not in addition to, the notice requirements of any Applicable Laws.

15.2 Remedies . Upon the occurrence of any Event of Default by Tenant, Landlord shall, in addition to an action for money damages, specific performance and/or injunctive relief, have the option to pursue any one or more of the remedies described in Section 1 of Exhibit “D” attached hereto and incorporated herein by this reference, each and all of which shall, subject to applicable law, be cumulative and nonexclusive.

 

16. LANDLORD’S LIABILITY .

16.1 Landlord Default; Tenant’s Remedies .

16.1.1 Landlord Default . The following shall constitute a Landlord Default:

16.1.1.1 if: (a) Landlord shall fail to perform or observe any of Landlord’s Lease Undertakings, and (b) such failure continues for a period of ten (10) days following written notice to Landlord of such failure; provided, however, that in the event that Landlord’s failure to perform or observe any of Landlord’s Lease Undertakings cannot reasonably be cured within ten (10) days following written notice to Landlord, such failure to cure shall not be a Landlord Default if Landlord commences its cure within such ten (10) day period and thereafter diligently prosecutes the curing thereof to completion. Landlord agrees to use commercially reasonable efforts to provide daily updates to Tenant regarding progress toward such completion.

16.1.1.2 The filing or execution or occurrence of any one of the following, provided the same is not dismissed or otherwise rectified within sixty (60) days: (i) a petition in bankruptcy or other insolvency proceeding by or against Landlord, (ii) a petition or answer seeking relief for Landlord under any provision of the Bankruptcy Act, (iii) an assignment by Landlord for the benefit of creditors, (iv) a petition or other proceeding by or against Landlord for the appointment of a trustee, receiver or liquidator of Landlord or any of Landlord’s property, (v) a proceeding by any governmental authority for the dissolution or liquidation of Landlord, or (vi) any other instance whereby Landlord or any general partner of Landlord or any guarantor of Landlord’s obligations under this Lease shall cease doing business as a going concern.

16.1.2 Tenant’s Remedies . Except as otherwise expressly provided herein, (a) in the event of any Landlord Default, Tenant’s sole and exclusive remedies for any such failure shall be an action for money damages, specific performance and/or injunctive relief, and (b) in no event shall Tenant have the right to terminate the Lease nor shall Tenant’s obligation to pay Base Rent or other charges under this Lease abate based upon any default by Landlord of its obligations under the Lease. In that connection, Tenant hereby expressly waives any right conveyed to Tenant by virtue of any law granting Tenant a lien upon the property of Landlord and/or upon rental due to Landlord or granting Tenant a right to withhold Rent and/or terminate this Lease.

 

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16.2 Landlord’s Liability . In consideration of the benefits accruing under this Lease to Tenant, and notwithstanding anything to the contrary contained in the Lease Documents, it is expressly understood and agreed by and between the parties to this Lease that:

(i) the collective recourse of Tenant and its successors and assigns against Landlord (and the liability of Landlord to Tenant, its successors and assigns) with respect to (a) any actual or alleged breach or breaches by or on the part of Landlord of any of Landlord’s Lease Undertakings, and (b) any other matter relating to Tenant’s occupancy of the Tenant Space, shall be limited, in the aggregate, solely to an amount equal to Landlord’s Liability Cap;

(ii) other than Landlord’s Liability Cap, Tenant shall have no recourse against any other assets of Landlord;

(iii) Tenant shall have no recourse against any assets of any member of the Landlord Group other than Landlord;

(iv) except to the extent of Landlord’s Liability Cap, no personal liability or personal responsibility of any sort with respect to any of Landlord’s Lease Undertakings, or any alleged breach thereof, is assumed by, or shall at any time be asserted or enforceable against, Landlord; and

(v) no personal liability or personal responsibility of any sort with respect to any of Landlord’s Lease Undertakings, or any alleged breach thereof, is assumed by, or shall at any time be asserted or enforceable against, any member of the Landlord Group other than Landlord.

16.3 Transfer of Landlord’s Interest . Landlord (and each of Landlord’s successors-in-interest) shall have the right, from time to time, to assign its interest and obligations, in writing and/or by operation of law, in and under this Lease to any third party to whom Landlord conveys its interest in the Property. Once and if Landlord (and/or any successor to Landlord) shall convey its interest in the Property to a third party, (a) Landlord (and each such successor) shall be fully released from all of the obligations and liabilities of Landlord under the Lease Documents accruing on or after the date of such transfer of Landlord’s interest in the Property to such third party, and (b) Tenant agrees to look solely to the successor-in-interest of Landlord for all such obligations and liabilities accruing on or after the date of such transfer. If any security has been given by Tenant to secure the faithful performance of any of the covenants of this Lease, Landlord shall transfer or deliver said security, as such, to Landlord’s successor in interest and thereupon Landlord shall be discharged from any further liability with regard to said security.

16.3.1 Status as a Real Estate Investment Trust . Landlord shall have the right, from time to time, to assign part of its interest and obligations in and under this Lease to a wholly owned subsidiary of Landlord (or a wholly owned subsidiary of Landlord’s parent company), if and to the extent that Landlord determines such partial transfer is necessary or advisable in connection with the status of Landlord, or any other member of the Landlord Group, as a real estate investment trust.

16.3.2 Partial Assignment . Should Landlord assign part of its obligation to a third party, Landlord shall, subject to the terms of Sections 14.1, 14.2 and 16.2, retain the responsibility for ensuring that the assigned obligations are properly performed under this Lease, including ensuring that such third party provides all reasonable account management services.

 

17. MISCELLANEOUS .

17.1 Severability . If it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is invalid or unenforceable, (i) the remaining terms and provisions hereof shall be unimpaired and shall remain in full force and effect; and (ii) the invalid or unenforceable term or provision shall be replaced by a term or provision that is valid and enforceable and that comes closest to effectuating the intention of such invalid or unenforceable term or provision.

 

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17.2 No Waiver . No failure or delay by Landlord to insist on the strict performance of any obligation, covenant, agreement, term or condition of this Lease, or to exercise any right or remedy available upon such non-performance, will constitute a waiver thereof, and no breach or failure by Tenant to perform will be waived, altered or modified, except by written instrument signed by Landlord.

17.3 Attorneys’ Fees and Costs . If either Landlord or Tenant initiates any litigation, mediation, arbitration or other proceeding regarding the enforcement, construction or interpretation of this Lease, then the non-prevailing party shall pay the prevailing party’s reasonable attorneys’ fees and costs (including, without limitation, all reasonable expense reimbursements, reasonable expert witness fees, reasonable litigation costs, court or arbitration tribunal costs, filing fees, reasonable exhibit fees, reasonable forensic consultant fees, reasonable litigation support costs, the costs of appeals and reasonable attorneys’ fees and costs incurred in connection with post-judgment collection and enforcement efforts). In addition, if it should otherwise be necessary or proper for Landlord to consult an attorney concerning this Lease for the review of instruments evidencing a proposed Transfer or for the purpose of collecting Rent, Tenant agrees to pay to Landlord its actual attorneys’ fees whether suit be brought or not to the extent such fees exceed $1,000.00 . The parties agree that this Section 17.3 shall survive the expiration or termination of this Lease.

17.4 Waiver of Right to Jury Trial . TO THE FULLEST EXTENT PERMITTED BY LAW, LANDLORD AND TENANT EACH EXPRESSLY WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY TRIAL HELD AS A RESULT OF A CLAIM ARISING OUT OF, IN CONNECTION WITH, OR IN ANY MANNER RELATED TO THIS LEASE IN WHICH LANDLORD AND TENANT ARE ADVERSE PARTIES. FOR THE AVOIDANCE OF DOUBT, THE FILING OF A CROSS-COMPLAINT BY ONE AGAINST THE OTHER IS SUFFICIENT TO MAKE THE PARTIES “ADVERSE.”

17.5 Headings; Time; Survival . The headings of the Articles, Sections, Schedules and Exhibits of this Lease are for convenience only and do not define, limit or construe the contents thereof. Words of any gender used in this Lease shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, unless the context otherwise requires. In all instances where a party is required to pay any sum or do any act at a particular indicated time or within an indicated period, it is understood that time is of the essence. Any obligations of a party accruing prior to the expiration or termination of this Lease shall survive the expiration or termination of this Lease, and such party shall promptly perform all such obligations whether or not this Lease has expired.

17.6 Notices . Any notice which may or shall be given under the provisions of this Lease shall be in writing and may be delivered by (i) hand delivery or personal service, (ii) a reputable overnight courier service which provides evidence of delivery, or (iii) (iv) e-mail (so long as a confirming copy is forwarded by a reputable overnight courier service within twenty-four (24) hours thereafter), if for Landlord, to the Building office and at the address specified in Item 11 of the Basic Lease Information, or if for Tenant, at the address specified in Item 3 of the Basic Lease Information, or at such other addresses as either party may have theretofore specified by written notice delivered in accordance herewith. Such address may be changed from time to time by either party by giving notice as provided herein. Notice shall be deemed given, (a) when delivered (if delivered by hand or personal service), (b) if sent by a reputable overnight courier service, on the business day immediately following the business day on which it was sent, or (c) the date the e-mail is transmitted.

17.7 Governing Law; Jurisdiction . This Lease shall be governed by, and construed in accordance with, the laws of the state in which the Property is located. In addition, Landlord and Tenant hereby submit to the local jurisdiction of the State in which the Property is located. Each party agrees that any action by the other against such party shall be instituted in the State in which the Property is located.

17.8 Incorporation; Amendment; Merger . This Lease, along with any schedules, exhibits and attachments or other documents referred to herein, all of which are hereby incorporated into this Lease by this reference, constitutes the entire and exclusive agreement between Landlord and Tenant relating to the Tenant Space and the Datacenter and each of the aforementioned documents may be altered, amended or revoked only by an instrument in writing signed by the party to be charged thereby. All prior or contemporaneous oral or written agreements, understandings and/or practices relative to the leasing or use of the Tenant Space are merged herein or revoked hereby.

 

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17.9 Brokers . Each party hereto represents to the other that the representing party has not engaged, dealt with or been represented by any broker in connection with this Lease other than the respective broker(s) and advisors specified in Item 13 of the Basic Lease Information.

17.10 Examination of Lease; Binding on Parties . Each of the parties hereto acknowledges that it has read and reviewed this Lease and that it has had the opportunity to confer with counsel in the negotiation of this Lease. Accordingly, this Lease shall be construed neither for nor against Landlord or Tenant, but shall be given a fair and reasonable interpretation in accordance with the meaning of its terms and the intent of the parties. This Lease shall not be binding or effective until each of the parties hereto has executed and delivered an original counterpart hereof to each other. No contractual or other rights shall exist between Landlord and Tenant with respect to the Tenant Space until both have executed and delivered this Lease, notwithstanding that Landlord has delivered to Tenant an unexecuted copy of this Lease. The submission of this Lease to Tenant shall not constitute the grant of an option for the Tenant to lease, or otherwise create any interest by Tenant in, the Tenant Space. The execution of this Lease by Tenant and return to Landlord shall not be binding upon Landlord, notwithstanding any time interval, until Landlord has, in fact, executed and delivered this Lease to Tenant.

17.11 Recordation . Neither Tenant nor any person or entity acting through, under or on behalf of Tenant shall record or cause the recordation of this Lease; provided however that a short form memorandum of this Lease (the “ Memo of Lease ”) in the form attached hereto as Exhibit “K” shall be executed by Landlord and Tenant within ten (10) business days after the Effective Date and recorded by Tenant in the real estate records of Santa Clara County, California.

17.12 Authority . Each of Landlord and Tenant represents to the other party that the person executing this Lease on its behalf is duly authorized to execute and deliver this Lease pursuant to its respective by-laws, operating agreement, resolution or other legally sufficient authority. Further, each party represents to the other party that (i) if it is a partnership, the undersigned are all of its general partners, (ii) it has been validly formed or incorporated, (iii) it is duly qualified to do business in the state in which the Property is located, and (iv) this Lease is being executed on its behalf and for its benefit.

17.13 Successors and Assigns . Except as otherwise provided in this Lease, all of the covenants, conditions and provisions of this Lease shall be binding upon, and shall inure to the benefit of the parties hereto and their respective heirs, personal representatives and permitted successors and assigns.

17.14 Force Majeure . Except for the extent to which a party’s obligations or rights are expressly stated herein to apply notwithstanding the effect of Force Majeure events, a party shall incur no liability to the other party with respect to, and shall not be responsible for any failure to perform, any of its obligations hereunder (other than payment obligations or obligations that may be cured by the payment of money (e.g., maintaining insurance)) if such failure is caused by a Force Majeure event. The amount of time for a party to perform any of its obligations (other than payment obligations) shall be extended by the amount of time such party is delayed in performing such obligation by reason of any Force Majeure event.

17.15 No Partnership or Joint Venture; No Third Party Beneficiaries . Nothing contained in this Lease shall be deemed or construed to create the relationship of principal and agent, or partnership, or joint venturer, or any other relationship between Landlord and Tenant other than landlord and tenant. Landlord shall have no obligations hereunder to any person or entity other than Tenant, and no other parties shall have any rights hereunder as against Landlord.

17.16 Access by Landlord . Landlord, Landlord’s agents and employees shall have the right to enter upon any and all parts of the Tenant Space at any reasonable time upon prior reasonable oral or written notice (except in the case of an emergency when no prior notice shall be required, and except as otherwise expressly set forth below) to examine the condition thereof, to clean, to make any repairs, alterations or additions required to be made by Landlord hereunder, to show the Tenant Space to prospective purchasers or prospective or current

 

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mortgage lenders (in either case only upon 48 hours’ prior oral or written notice), to show the Tenant Space to prospective tenants (only during the last three (3) months of the Term, and only upon 48 hours’ prior oral or written notice), to determine whether Tenant is complying with all of its obligations under this Lease, and/or to exercise any of Landlord’s rights or remedies hereunder. In connection with Landlord’s rights hereunder, Tenant agrees that Landlord shall at all times have and retain a key that will unlock all of the doors in, on or about the Tenant Space; and, in the absence of such a key, Landlord shall have the right to use any reasonable means to open such doors to obtain entry to the Tenant Space. Notwithstanding anything herein to the contrary, except for emergencies, Landlord shall use reasonable efforts to minimize disruption of Tenant’s business or occupancy during such entries.

17.17 Rights Reserved by Landlord . Except as otherwise expressly provided to the contrary in this Lease, Landlord hereby expressly reserves all rights related to the Premises, the Datacenter, the Building and the Property, including, but not limited to the right: (i) to change the name or street address of the Building and/or the Property; (ii) to install, affix and maintain all signs on the exterior and/or interior of the Building and/or the Property; (iii) to change, from time to time, the dimensions, configurations and locations of the Common Areas, and/or to otherwise make such alterations to the Datacenter or the Building as Landlord deems desirable without disruption of the conduct of Tenant’s business in the Premises/Pathway; (iv) to install, operate and maintain systems which monitor, by closed circuit television or otherwise, all persons entering or leaving the Building, the Datacenter, and/or the Property; (v) to install and maintain pipes, ducts, conduits, wires and structural elements located in the Datacenter or the Tenant Space and which serve other parts or other tenants or occupants of the Datacenter, the Building and/or the Property without disruption of the conduct of Tenant’s business in the Premises/Pathway; (vi) to create any additional improvements to structural and/or mechanical systems, interior and exterior walls and/or glass without disruption of the conduct of Tenant’s business in the Premises/Pathway; and (vii) to lease space in the Datacenter, the Building and the Property, and to create such other tenancies in the Datacenter, the Building and the Property as Landlord shall desire. Notwithstanding the foregoing, Landlord shall notify Tenant of such alterations as may materially alter the delivery of service and make commercially reasonable accommodations to ameliorate any adverse impact on such delivery of service for changes to service components including but not limited to the following:

 

  a) 2N UPS, N +1 Generator redundancy for the Premises.

 

  b) Concurrently maintainable (Tier III) Premises.

 

  c) At least 6 minutes of UPS power under full load.

 

  d) 30” raised floor height and 12’ ceiling height.

 

  e) 25% perforated tiles for Tenant space.

 

  f) Zone 4 code compliance for earthquakes.

 

  g) At least 24 hours of fuel run time for generators.

 

  h) Double-interlock pre-action sprinkler system.

 

  i) No less than “N” Generator plant with camlok tap box for additional generator, in case of main generator failure or main generator maintenance.

 

  j) Generators to have weather resistant enclosure and a double contained fuel tank, as well as all required approvals of such generators from local municipality (including architectural, noise, and planning to the extent required by Applicable Law).

 

  k) Monitoring of PDU and other electrical infrastructure using BMS by TAC or equivalent systems.

 

  l) Revenue grade metering at the main distribution voltage supply switch.

 

  m) Power quality metering at the output of the UPS.

 

  n) Energy management & monitoring system, with monitoring and control for: mechanical heat rejection equipment; UPS systems; PDUs; fire alarm; water flow switch; security system; temperature/humidity; under floor leak detection system; lighting; power metering & monitoring system / energy management system. The energy management & monitoring system will monitor all critical equipment for the Datacenter, with alerts configured to page the Building engineer, service provider, and, if required by Tenant, Tenant staff.

 

  o) Tenant access to web portal including viewing the Building management system data for the Premises.

 

  p) Carrier neutrality and availability of multiple IP transit providers in the Building.

 

  q) Multiple fiber egress points from the Building.

 

  r) Building security monitoring.

 

  s) Continuation of all building services, including provisioning, maintenance, and replacement of common electrical and HVAC equipment, access to loading dock, exterior maintenance (landscaping, parking lot, etc.); and interior services (trash pickup, common area maintenance, restrooms and temperature control) without additional charge to client.

 

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  t) Electronic “key card” reader/system for access into the Premises.

17.18 Counterparts; Delivery by Facsimile or E-mail . This Lease may be executed simultaneously in two or more counterparts each of which shall be deemed an original, but all of which shall constitute one and the same Lease. Landlord and Tenant agree that the delivery of an executed copy of this Lease by facsimile or e-mail shall be legal and binding and shall have the same full force and effect as if an original executed copy of this Lease had been delivered.

17.19 Confidentiality . Each party agrees that (i) the terms and provisions of this Lease, business and financial information disclosed by either party, trade secrets, and disputes, are confidential and constitute proprietary information of the parties and (ii) it shall not disclose, and it shall cause its partners, officers, directors, shareholders, employees, brokers and attorneys to not disclose any term or provision of this Lease to any other person without first obtaining the prior written consent of the other party, except that each party shall have the right to disclose such information for valid business, legal and accounting purposes and/or if advisable under any applicable securities laws regarding public disclosure of business information. Landlord acknowledges that Tenant will include this Lease in filings with governmental agencies, including without limitation the Securities and Exchange Commission, but only to the extent that such inclusion and/or disclosure is required under applicable securities laws. The foregoing notwithstanding, Landlord reserves the right to post a press release or press releases, that discloses the fact that Landlord and Tenant have entered into a lease; provided that same does not disclose the location, economics or square footage related hereto. Any references in such press release or press releases, in excess of the fact that Landlord and Tenant have entered into a lease, require approval by Tenant, which Tenant may withhold in its sole and absolute discretion.

17.20 Incorporation of Schedules and Exhibits . All of the terms and conditions of all of the Schedules and Exhibits to this Lease are hereby incorporated into this Lease.

17.21 Financial Statements . Within ten (10) business days after Landlord’s written request therefor, which request shall be made only in the event that any actual or prospective lender, mortgagee or purchaser of the Building has required same, Tenant shall deliver Tenant’s Financial Statements to Landlord for the two (2) fiscal years immediately preceding Landlord’s request. If Tenant does not then have its Financial Statements audited, Tenant must forward unaudited Financial Statements certified by Tenant’s chief financial officer as true, complete and correct in all material respects. Tenant’s failure to timely comply with this Section 17.21 shall be an Event of Default by Tenant under Section 15.1.4 of this Lease. Landlord hereby agrees to maintain Tenant’s Financial Statements as proprietary and confidential and agrees not to disclose Tenant’s Financial Statements to any third party other than any actual or prospective lender, mortgagee, or purchaser of the Building, and Landlord’s attorneys, accountants and similar business advisors. Notwithstanding the foregoing, this Section 17.21 shall not apply with regard to Tenant’s Financial Statements if, as the case may be, (a) the entity named as “Tenant” or the entity that is named as “Guarantor” under this Lease is a publicly traded entity that is traded on a nationally recognized stock exchange, and (b) such entity’s Financial Statements are available online at no cost to Landlord.

17.22 Master Lease . Landlord and Tenant hereby acknowledge and agree that Landlord may enter into a Master Lease with a Third Party Tenant for the operation and control of all or part of the Premises, and in such event, the Lease will automatically, without consent or further action of Tenant, be deemed a sublease between the Third Party Tenant, as sub-landlord, and Tenant, as subtenant. This provision is self-operating; however, Tenant agrees to execute any documents needed to confirm such sublease, Landlord will use commercially reasonable efforts cause the lessor under such Master Lease to execute a reasonable non-disturbance and recognition agreement with Tenant simultaneously with the execution of such Master Lease, and if the Master Lease is entered into and Third Party Tenant defaults thereunder, Tenant will attorn to Landlord, as substitute sublandlord, and, provided Tenant is not in default under the Lease after the expiration of any applicable notice and cure periods, Tenant may remain in possession of the Tenant Space under the terms of the Lease, even if Landlord should terminate the Master Lease.

[SIGNATURES APPEAR ON NEXT PAGE]

 

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IN WITNESS WHEREOF, the parties hereto have duly executed this Lease on the respective dates set forth below to be effective as of the Effective Date.

 

LANDLORD :

DIGITAL ALFRED, LLC,

a Delaware limited liability company

By:   Digital Realty Trust, L. P.,
 

a Maryland limited partnership,

its member and manager

  By:   Digital Realty Trust, Inc.,
   

a Maryland corporation,

its general partner

    By:  

/s/ Richard Berk

    Name:   Richard Berk
    Title:   Vice President Portfolio Management, West Region

Date: December 31, 2010

 

TENANT :

CONSTANT CONTACT, INC.,

a Delaware corporation

By:  

/s/ John Walsh

Name:   John Walsh
Title:   Senior Vice President, Engineering and Operations
Date: December 31, 2010

Signature Page


EXHIBIT “A”

DEPICTION OF DATACENTER AND PREMISES

 

LOGO

 

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EXHIBIT “B-1”

TENANT’S INSURANCE REQUIREMENTS

Policies

 

A. Commercial general liability insurance (including contractual liability):    $5,000,000 single limit; $5,000,000 aggregate limit.*
B. “Special Peril Form” property insurance:    Full replacement value of Tenant’s Personal Property.
C. Workers’ compensation insurance:    In accordance with the laws of the state in which the Property is located, and Employer’s Liability insurance with a limit not less than $1,000,000 Bodily Injury Each Accident; $1,000,000 Bodily Injury By Disease - Each Person; and $1,000,000 Bodily Injury By Disease - Policy Limit.
D. Automobile liability insurance:    Primary auto liability insurance with limits of not less than $1,000,000 per occurrence covering owned, hired and non-owned vehicles used by Tenant or any other member of the Tenant Group.
E. Business interruption insurance:    In such amount as will reimburse Tenant for direct or indirect loss of earnings attributable to all perils insured against by the property insurance described above for a period of not less than twelve (12) months.

 

* some or all of which may be provided by umbrella coverage.

Requirements :

All insurance required of Tenant under this Lease shall be issued by insurers with a “General Policyholders Rating” of at least A-, VIII, as set forth in “Best’s Insurance Guide.” Such insurers shall be authorized to do business in the State in which the Property is located. Tenant’s commercial general liability policy shall be written to apply to all bodily injury (including death), property damage and personal injury losses, and shall include blanket contractual liability, broad form property damage, independent contractor’s coverage, cross liability and severance of interest clauses.

 

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EXHIBIT “B-2”

LANDLORD’S INSURANCE REQUIREMENTS

Policies

 

A. Commercial general liability insurance (including contractual liability):    $10,000,000 single limit; $20,000,000 aggregate limit.*
B. “Special Peril Form” property insurance:    Full replacement value of the Building and Landlord’s personal property installed therein.*
C. Workers’ compensation insurance:    In accordance with the laws of the state in which the Property is located, and Employer’s Liability insurance with a limit not less than $1,000,000 Bodily Injury Each Accident; $1,000,000 Bodily Injury By Disease - Each Person; and $1,000,000 Bodily Injury By Disease - Policy Limit.
D. Automobile liability insurance:    Primary auto liability insurance with limits of not less than $1,000,000 per occurrence covering owned, hired and non-owned vehicles used by Landlord or any other member of the Landlord Group.

 

* some or all of which may be provided by umbrella coverage.

Requirements :

All insurance required of Landlord under this Lease shall be issued by insurers with a “General Policyholders Rating” of at least A-, VIII, as set forth in “Best’s Insurance Guide.” Such insurers shall be authorized to do business in the State in which the Property is located. Landlord’s commercial general liability policy shall be written to apply to all bodily injury (including death), property damage and personal injury losses, and shall include blanket contractual liability, broad form property damage, independent contractor’s coverage, cross liability and severance of interest clauses.

 

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EXHIBIT “C”

DESCRIPTION OF PATHWAY

One (1) dedicated four-inch (4”) conduit, designated by Landlord, from the Premises to the PPOP Room (the “ PPOP Pathway ”); and

One (1) dedicated four-inch (4”) conduit, designated by Landlord, from the Premises to the SPOP Room (the “ SPOP Pathway ”; together, with the PPOP Pathway, collectively, the “ Pathway ”).

Tenant shall be permitted to pull and/or install Cables in the Pathway. Tenant shall be limited in the number of Cables that may be pulled through said Pathway only by Applicable Law and by the physical constructs of such Pathway. Tenant is responsible for the costs and installation of all such Cables

 

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EXHIBIT “D”

CALIFORNIA STATE LAW PROVISIONS

 

1. REMEDIES FOR EVENTS OF DEFAULT .

1.1. Landlord’s Right to Terminate Upon Tenant Default . In the event of any Event of Default by Tenant as provided in Section 15.1 of the Lease, Landlord shall have the right to terminate this Lease and recover possession of the Tenant Space by giving written notice to Tenant of Landlord’s election to terminate this Lease, in which event Landlord shall be entitled to receive from Tenant: (a) the worth at the time of award of any unpaid Rent which had been earned at the time of such termination; plus (b) the worth at the time of award of the amount by which the unpaid Rent which would have been earned after termination until the time of award exceeds the amount of such rental loss Tenant proves could have been reasonably avoided; plus (c) the worth at the time of award of the amount by which the unpaid Rent for the balance of the Term after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; plus (d) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant’s failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom; and (e) at Landlord’s election, such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by Applicable Laws. As used in clauses (a) and (b), above, “worth at the time of award” shall be computed by allowing interest at the then highest lawful contract rate of interest. As used in clause (c), above, “worth at the time of award” shall be computed by discounting such amount at the Discounting Rate (defined below). As used herein, the term “ Discounting Rate ” means the lesser of (i) the Prime Rate plus one percent (1%), or (ii) the maximum rate permitted by Applicable Laws.

1.2. Landlord’s Right To Continue Lease Upon Tenant Default . In the event of a default of this Lease and abandonment of the Tenant Space by Tenant, if Landlord does not elect to terminate this Lease as provided in Section 1.1, above, Landlord may from time to time, without terminating this Lease, enforce all of its rights and remedies under this Lease. Without limiting the foregoing, Landlord shall have the remedy described in California Civil Code Section 1951.4 (Landlord may continue this Lease in effect after Tenant’s breach and abandonment and recover Rent as it becomes due, if Tenant has the right to sublet or assign, subject only to reasonable limitations). To the fullest extent permitted by Applicable Law, the proceeds of any reletting shall be applied first to pay to Landlord all costs and expenses of such reletting (including without limitation, costs and expenses of retaking or repossessing the Tenant Space, removing persons and property therefrom, securing new tenants, including expenses for refixturizing, alterations and other costs in connection with preparing the Tenant Space for the new tenant, and if Landlord shall maintain and operate the Tenant Space, the costs thereof) and receivers’ fees incurred in connection with the appointment of and performance by a receiver to protect the Tenant Space and Landlord’s interest under this Lease and any necessary or reasonable alterations; second, to the payment of any indebtedness of Tenant to Landlord other than Rent due and unpaid hereunder; third, to the payment of Rent due and unpaid hereunder; and the residue, if any, shall be held by Landlord and applied in payment of other or future obligations of Tenant to Landlord as the same may become due and payable, and Tenant shall not be entitled to receive any portion of such revenue. No re-entry or taking of possession of the Tenant Space by Landlord pursuant to this Section 1.2 shall be construed as an election to terminate this Lease unless a written notice of such election shall be given to Tenant or unless the termination thereof be decreed by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord, Landlord may, at any time after such reletting, elect to terminate this Lease for any such Event of Default. Upon the occurrence of an Event of Default by Tenant under Section 15.1 of the Lease, if the Tenant Space or any portion thereof are sublet, Landlord, in addition and without prejudice to any other remedies herein provided or provided by Applicable Laws, may, at its option, collect directly from the sublessee all rentals becoming due to the Tenant and apply such rentals against other sums due hereunder to Landlord.

1.3. Efforts to Relet . For the purposes of this Exhibit “D” , Tenant’s right to possession shall not be deemed to have been terminated by efforts of Landlord to relet the Tenant Space (or any portion

 

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thereof), by its acts of maintenance or preservation with respect to the Tenant Space (or any portion thereof), or by appointment of a receiver to protect Landlord’s interests hereunder. The foregoing enumeration is not exhaustive, but merely illustrative of acts which may be performed by Landlord without terminating Tenant’s right to possession.

1.4. Waiver of Right of Redemption . Tenant hereby waives for Tenant and for all those claiming under Tenant all right now or hereafter existing to redeem by order or judgment of any court or by any legal process or writ, Tenant’s right of occupancy of the Tenant Space after any termination of this Lease. Notwithstanding any provision of this Lease to the contrary, the expiration or termination of this Lease and/or the termination of Tenant’s rights to possession of the Tenant Space shall not discharge, relieve or release Tenant from any obligation or liability whatsoever under any indemnity provision of this Lease, including without limitation the provisions of Section 14.2 of this Lease.

1.5. Cumulative Remedies; Equitable Relief . The specific remedies to which Landlord may resort under the provisions of this Lease are cumulative and are not intended to be exclusive of any other remedies or means of redress to which it may be lawfully entitled in case of any breach or threatened breach by Tenant of any provisions of this Lease. In addition to the other remedies provided in this Lease, subject to Applicable Laws, Landlord shall be entitled to a restraint by injunction of the violation or attempted or threatened violation of any of the covenants, conditions or provisions of this Lease or to a decree compelling specific performance of any such covenants, conditions or provisions.

1.6. Tenant’s Waiver . Tenant acknowledges that Landlord has entered into this Lease in reliance upon, among other matters, Tenant’s agreement and continuing obligation to pay all Rent due throughout the Term. As a result, if Landlord elects, at Landlord’s sole option, to attempt to relet all or any part of the Tenant Space, Tenant agrees that Landlord has no obligation to: (i) relet the Tenant Space prior to leasing any other space within the Datacenter or Building; (ii) relet the Tenant Space (a) at a rental rate or otherwise on terms below market, as then determined by Landlord in its sole discretion; (b) to any entity not satisfying Landlord’s then standard financial credit risk criteria or Datacenter criteria regarding security/interconnectivity; (c) for a use or upon terms not substantially consistent with the terms and requirements of this Lease; (iii) make any alterations to the Tenant Space, the Datacenter or the Building; and/or (iv) otherwise incur any costs in connection with any such reletting, unless Tenant unconditionally delivers to Landlord, in good and sufficient funds, the full amount thereof in advance.

1.7. Landlord’s Right to Cure . All covenants and agreements to be performed by Tenant under this Lease shall be performed by Tenant at Tenant’s sole cost and expense. If Tenant should fail to make any payment (other than Base Rent) or cure any default hereunder within the time herein permitted, Landlord, without being under any obligation to do so, without thereby waiving such default and in addition to and without prejudice to any other right or remedy of Landlord, may make such payment and/or remedy such other default for the account of Tenant (and enter the Tenant Space for such purpose), and thereupon Tenant shall be obligated to, and hereby agrees to, pay to Landlord as Additional Rent, within ten (10) days following Landlord’s demand therefor, all costs, expenses and disbursements (including actual attorneys’ fees) incurred by Landlord in taking such remedial action, plus an administrative fee of ten percent (10%) of such amount.

1.8. Notices . Tenant hereby acknowledges and agrees that all of the notice periods provided in Section 15.1 of the Lease are in lieu of, and not in addition to, any notice required under California Code of Civil Procedure Section 1161 et. seq., or any similar or successor law.

 

2. STATUTORY WAIVERS .

2.1 Tenant hereby waives the provisions of Section 1950.7 of the California Civil Code, and all other provisions of Law, now or hereinafter in force, which restricts the amount or types of claim that a landlord may make upon a security deposit or imposes upon a landlord (or its successors) any obligation with respect to the handling or return of security deposits.

 

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2.2 Tenant hereby waives any and all rights under and benefits of subsection 1 of Section 1932 and Sections 1941 and 1942 of the California Civil Code or under any similar law, statute, or ordinance now or hereafter in effect.

2.3 Landlord’s and Tenant’s waivers set forth in Section 9.1.4 of the Lease shall include, without limitation, (i) the provisions of Sections 1932(2) and 1933(4) of the California Civil Code, as amended from time to time, and the provisions of any successor or other law of like import and (ii) the provisions of Sections 1265.130 and 1265.150 of the California Code of Civil Procedure, as amended from time to time, and the provisions of any successor or other law of like import.

2.4 Environmental Disclosures .

(a) Tenant is hereby notified that the Land and the Building described herein contain Hazardous Substances (including, but not limited to, ACM); as a result, the Land, the Building and the owner, lessee or other possessor of the Land and/or the Building may be subject to requirements, restrictions, provisions, and liabilities contained in Chapter 6.5 and Chapter 6.8 of Division 20 of the State of California Health and Safety Code. This statement is not a declaration that a hazard exists.

(b) WARNING: Tenant is hereby notified that the Land and the Building contain one or more chemicals (including ACM) known to the State of California to cause cancer.

 

3. NOTICE OF COMPLETION .

Upon completion of any Alterations, Tenant agrees to cause a Notice of Completion to be recorded in the office of the Recorder of the county in which the Property is located in accordance with Section 3093 of the Civil Code of the State of California or any successor statute.

 

4. NOTICES .

If the term “Tenant”, as used in this Lease, refers to more than one (1) person and/or entity, and notice given as aforesaid to any one of such persons and/or entities shall be deemed to have been duly given to Tenant. Notwithstanding any provision of this Lease to the contrary, in the case where statutory law requires that any notice, notice to quit or pay rent, summons or complaint (or any other form of writing required in connection with the assertion of rights against Tenant, the enforcement of Tenant’s obligations under this Lease or the termination of Tenant’s rights hereunder) (collectively, “ Statutory Written Notices or Complaints ”) must be delivered or served in a particular form, delivered to or served on Tenant through delivery to or service on a particular representative of Tenant, delivered or served in a particular manner (or by a particular method), for purposes of determining compliance with such applicable statutory requirements, the time, manner or method of delivery of all such Statutory Written Notices or Complaints delivered to or served on all of the Tenant addressees for notices listed in Item 3 of the Basic Lease Information (other than the timing, manner and/or method of delivery of the Statutory Written Notice or Complaint to the first addressee listed in Item 3 of the Basic Lease Information) shall be disregarded, and if the timing, manner and, method of delivery and form of the Statutory Written Notice or Complaint delivered to the first addressee listed in Item 3 of the Basic Lease Information shall satisfy the applicable statutory requirements, then such statutory requirements shall be deemed satisfied with respect to the timing, manner, and method of delivery and form with respect to all Tenant addressees as of the date of delivery to such first addressee.

 

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EXHIBIT “E”

LANDLORD’S INSTALLATIONS

[Intentionally Omitted]

 

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EXHIBIT “E-1”

COMMISSIONING CRITERIA

[Intentionally Omitted]

 

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EXHIBIT “F”

SERVICE LEVEL

Table A.

 

1.       Electricity Consumption Threshold :

  

281 total kW during Phase I.

 

562 total kW during Phase II.

 

2.       Target Battery Capacity :

  

Six (6) minutes.

 

3.       Back-Up Power Specifications :

  

One (1) 2.0 MW Building generator supplies dedicated back-up power for the Datacenter. Landlord shall ensure that Building generator is sized appropriately to support Datacenter power loads.

 

One (1) 2.0 MW Building generator supplies shared backup power for the Datacenter and other datacenter space. Landlord shall ensure throughout the term of this Lease that Building generator is sized appropriately to support power loads of Datacenter and other datacenter spaces.

 

4.       HVAC Specifications .

 

    

(a)     Target Temperature Range:

  

Average temperature of the Premises, measured at the return air vents in the Premises, between 68 degrees Fahrenheit and 78 degrees Fahrenheit.

 

(b)     Target Humidity Range :

  

Average relative humidity of the Premises, measured at the return air vents in the Premises, between 35% and 55%.

 

Service Level – Terms.

 

1. Landlord’s Essential Services.

A. Electricity . Landlord shall furnish electricity to the Premises sufficient to meet the Electricity Consumption Threshold. The obligation of Landlord to provide electricity to the Premises shall be subject to the rules, regulations and requirements of the supplier of such electricity and of any governmental authorities regulating providers of electricity and shall be limited, except as expressly set forth in the next sentence, to providing power sufficient to meet the Electricity Consumption Threshold. In addition, Landlord shall furnish back-up power for the Premises sufficient to meet the Back-Up Power Specifications. Landlord hereby represents that the Back-Up Power Specifications are sufficient to support the Datacenter’s designed IT and HVAC system loads during a utility power outage. Except for the Back-Up Power Specifications, Landlord shall have no obligation to provide emergency, supplemental or back-up power systems for use in the Premises, or otherwise in, or for, the Tenant Space.

B. HVAC . Landlord shall furnish HVAC to the Premises sufficient to cause the average temperature and humidity of the Premises (measured at the return air vents in the Premises) to meet the HVAC Specifications. The obligation of Landlord to provide HVAC to the Premises shall be limited to providing HVAC sufficient to meet the HVAC Specifications.

 

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2. Interruptions of Landlord’s Essential Services; Losses of Redundancy.

A. Outage Credits; and Partial Outage Credits.

(1) Upon the occurrence of each Separate/Independent Interruption of Landlord’s Essential Services, Tenant shall be entitled to an Outage Credit in the amount set forth opposite the duration of such Interruption of Landlord’s Essential Services in Table 2.A.(1)-A and 2.A.(1)-B, below, as applicable:

Table Related to the Calculation of Outage Credits (Table 2.A.(1)-A)

 

Interruption Duration:   

Tenant’s Remedy:

0-1 hour    The Level-1 Outage Credit(s) described in Table 2.A.(1)-B, below.
   
1hr, 1minute through 4 consecutive hours during which such Interruption of Landlord’s Essential Services occurs or continues    One (1) Outage Credit in addition to Outage Credit(s) granted, above, for such Interruption for the 0-1 hour outage period.
   
4hrs, 1minute through 8 consecutive hours during which such Interruption of Landlord’s Essential Services occurs or continues    One (1) Outage Credit in addition to the Outage Credits granted, above, for such Interruption for 0-1 hour outage period and 1-4 hour outage period.
   
8hrs, 1minute through 12 consecutive hours during which such Interruption of Landlord’s Essential Services occurs or continues    One (1) Outage Credit in addition to Outage Credits granted, above, for such Interruption for 0-1 hour outage period, 1–4 hour outage period and 4-8 hour outage period.
   
Each twelve (12) hour period thereafter during which such Interruption of Landlord’s Essential Services occurs or continues.    One (1) Outage Credit in addition to Outage Credits granted, above, previously for such Interruption.

Table Describing the Level-1 Outage Credits (Table 2.A.(1)-B)

 

Interruption Occurrence:    Level-1 Outage Credit:

Each First Interruption.

  

One (1) Outage Credit.

 

Each Second Interruption.

  

 

Two (2) Outage Credits.

 

Each Third Interruption.

  

 

Three (3) Outage Credits.

 

Each Four-Plus Interruption.

  

 

Four (4) Outage Credits.

(2) Upon the occurrence of each Loss of Redundancy that occurs for at least one hundred sixty eight (168) consecutive hours (i.e., seven (7) full twenty-four (24) hour periods), Tenant shall be entitled to one-half (1/2) of an Outage Credit (each, a “ Partial Outage Credit ”) as set forth opposite the duration of such Loss of Redundancy in Table 2.A.(2), below:

Table Related to the Calculation of Partial Outage Credits (Table 2.A.(2))

 

Loss of Redundancy Duration:    Tenant’s Remedy:
One hundred sixty eight (168) consecutive hours.    One Partial Outage Credit.
   
Each period of one hundred sixty eight (168) consecutive hours thereafter during which such Loss of Redundancy continues.    One (1) Partial Outage Credit in addition to the Partial Outage Credit granted, above, previously for such Loss of Redundancy.

 

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(3) In the event that Tenant is entitled to an Outage Credit or Partial Outage Credit, the Outage Credit or Partial Outage Credit, as applicable, shall be applied as a credit towards Tenant’s Base Rent due in the immediately following month of the Term; provided, however, in the event that an Outage Credit or Partial Outage Credit accrues during the final month of the Term, Landlord will pay to Tenant the amount of the Outage Credit or Partial Outage Credit within thirty (30) days following the expiration of the Term.

(4) The foregoing notwithstanding, (a) the aggregate total of Outage Credits and Partial Outage Credits to which Tenant may become entitled in any calendar month shall not exceed Tenant’s total monthly Base Rent (at the time of the event); and (b) Tenant’s entitlement to, and accrual of, Outage Credits related to any Interruption – Electrical shall occur only from and after the point at which the aggregate duration of all Interruptions – Electrical during any rolling twelve (12) month period exceeds the Interruption – Electrical Duration Threshold.

B. Interruption Cure Completion Notice . Once Landlord has rectified a particular Interruption of Landlord’s Essential Services or Loss of Redundancy, Landlord shall provide the Interruption Cure Completion Notice to Tenant as soon as is reasonably practicable thereafter.

C. Performance Review The Tenant and Landlord will meet periodically at Tenant’s request, but no less than annually, to review the Landlord’s performance and compliance with the performance standards, as specified in this Exhibit.

 

3. Termination Rights.

A. Continuous Outage Termination Right. In the event of a Continuous Outage, Tenant may terminate this Lease by timely delivery of the Continuous Outage Termination Notice to Landlord. Tenant’s failure to timely deliver Tenant’s Continuous Outage Termination Notice shall automatically extinguish Tenant’s right to terminate this Lease with respect to that particular Continuous Outage.

B. Chronic Outage Termination Right. In the event of a Chronic Outage, Tenant may terminate this Lease by timely delivery of the Chronic Outage Termination Notice to Landlord. Tenant’s failure to timely deliver Tenant’s Chronic Outage Termination Notice shall automatically extinguish Tenant’s right to terminate this Lease with respect to that particular Chronic Outage.

4. Remedies Exclusive. Tenant agrees that Tenant’s entitlement to Outage Credits, Partial Outage Credits and termination rights, as expressly set forth in this Exhibit “F” , shall be Tenant’s sole and exclusive remedies with regard to each Interruption of Landlord’s Essential Services and/or Loss of Redundancy.

 

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EXHIBIT “G”

INTENTIONALLY DELETED

 

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EXHIBIT “H”

COMMENCEMENT DATE NOTICE

              , 2010

VIA [E-MAIL]: [# OR E-MAIL ADDRESS]

AND FEDERAL EXPRESS

[INSERT TENANT’S ADDRESS

FOR NOTICES FROM BLI #3]

 

  Re: That certain Turn Key Datacenter Lease with an effective date of               , 20      (as amended and modified from time to time, the “ Lease ”), by and between Constant Contact, Inc., a Delaware corporation (“ Tenant ”), as tenant, and Digital Alfred, LLC, a Delaware limited liability company (“ Landlord ”), as landlord, covering certain premises more particularly described in the Lease at that certain building located at 3105 Alfred Street, Santa Clara, California. Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Lease.

Ladies and Gentlemen:

Please be advised that Landlord has caused each of the Commencement Date Conditions to occur. In that connection, please find the Commissioning Complete Letter, attached hereto as Attachment “1”. Accordingly, Landlord confirms the following:

1. The Commencement Date of the Lease is               , 20      .

[ADD SECTIONS TO CONFIRM TAKE-DOWN OR OTHER DATES, IF APPLICABLE]

2. Tenant’s Base Rent schedule is as follows:

$          for the period               , 20      through               , 20     

(the Partial Month) [DELETE IF COMMENCEMENT DATE IS THE 1 ST ]

$47,770.00 per month for the period               , 20      through               , 20     

(months 1-6 of the Term)

$95,540.00 per month for the period               , 20      through               , 20     

(months 7-12 of the Term)

$98,406.20 per month for the period               , 20      through               , 20     

(months 13-24 of the Term)

$101,358.39 per month for the period               , 20      through               , 20     

(months 25-36 of the Term)

$104,399.14 per month for the period               , 20      through               , 20     

(months 37-48 of the Term)

$107,531.11 per month for the period               , 20      through               , 20     

(months 49-60 of the Term)

$110,757.05 per month for the period               , 20      through               , 20     

(months 61-72 of the Term)

 

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Should you have any questions, please contact [PROPERTY MANAGER] at [PHONE #], who will be glad to assist you.

 

Sincerely,
By:  

 

Name:  

 

Title:  

 

 

On behalf of Landlord

 

cc: [INSERT ADDITIONAL NOTICE ADDRESSES, IF APPLICABLE]

 

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ATTACHMENT “1”

COMMISSIONING COMPLETE LETTER

[USE COMMISSIONING AGENT’S LETTERHEAD]

COMMISSIONING COMPLETE LETTER

              , 2010

VIA [INSERT METHOD]

Digital Alfred, LLC

c/o Digital Realty Trust, L.P.

1100 Space Park Drive, Suite 104

Santa Clara, CA 95054

Attn: Property Manager

 

  Re: Commissioning of Suite 140 (the “ Datacenter ”), located in that certain building located at 3105 Alfred Street, Santa Clara, California.

Ladies and Gentlemen:

We are pleased to advise you that, as of      :      [AM/PM] on [MONTH] [DATE], 20      , Level 4 and Level 5 Commissioning of the above-referenced Datacenter are complete. We have concluded that the mechanical and electrical systems supporting the Datacenter are operating in accordance with the design intent. Please note that we will be accumulating the testing data and will forward our final report to you no later than [MONTH] [DATE], 20      .

We understand that third parties (e.g. tenants or potential tenants of the Datacenter and your lenders or potential lenders) may rely on the statements made in this letter (this “ Commissioning Complete Letter ”), and we authorize you to share this Commissioning Complete Letter with third parties as you see fit.

Should you have any questions, please contact [COMMISSIONING REPRESENTATIVE] at [PHONE #], who will be glad to assist you.

 

Sincerely,
[COMMISSIONING AGENT]
By:  

 

Name:  

 

Title:  

 

 

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EXHIBIT “I”

INTENTIONALLY OMITTED

 

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EXHIBIT “J”

ENVIRONMENTAL REPORTS

[Intentionally Omitted]

 

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EXHIBIT “K”

FORM OF MEMO OF LEASE

MEMORANDUM OF LEASE

Notice is hereby given pursuant to the laws of the State of California of a lease upon the following terms:

 

Date of Execution:                 , 20     
Landlord:    Digital Alfred, LLC, a Delaware limited liability company.
Tenant:    Constant Contact, Inc., a Delaware corporation.
Premises; Pathways:    Premises A (commencing on the Commencement Date) consisting of approximately 1,800 square feet of area in Suite 140 of the Building (defined below), and Premises B (commencing on the first day of the sixth full calendar month of the Term) consisting of approximately 1,800 square feet of area in Suite 140 (together, the “Premises”), the PPOP Pathway consisting of one (1) dedicated four-inch (4”) conduit, designated by Landlord, from the Premises to the PPOP Room (as defined in the Lease), and the SPOP Pathway consisting of one (1) dedicated four-inch (4”) conduit, designated by Landlord, from the Premises to the SPOP Room (as defined in the Lease), such Premises and such Pathways being within the “Building” known as 3105 Alfred Street, Santa Clara, California and more particularly described in the Lease, which Building is located on the land more particularly described on Exhibit 1 attached hereto.
Term:    Approximately seventy-two (72) full calendar months (i.e., commencing on the Commencement Date (as defined in the Lease), and expiring seventy-two (72) full calendar months thereafter, unless extended pursuant to the Lease). In the event that the Commencement Date occurs on the Target Commencement Date (as defined in the Lease; i.e., May 1, 2011), the Term of the Lease would expire on April 30, 2017, unless extended pursuant to the Lease.
Extension Option:    Two (2) Extension Options, each to extend the Term for an Extension Term of forty-eight (48) months each, subject to the terms and conditions of the Lease.

This Memorandum of Lease has been executed merely to give notice of the Lease, and all of the terms, conditions and covenants thereof which are incorporated herein by reference. The parties hereto do not intend this Memorandum of Lease to modify or amend the terms, conditions and covenants of the Lease.

 

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Executed as an instrument under seal as of the      day of              , 20      .

 

LANDLORD:       TENANT:
DIGITAL ALFRED, LLC,       Constant Contact, Inc., a Delaware corporation
a Delaware limited liability company         
By:    Digital Realty Trust, L. P.,         
   a Maryland limited partnership,

its member and manager

        
   By:    Digital Realty Trust, Inc.,       By:   

 

      a Maryland corporation,       Name:   
      its general partner       Title:   
      By:   

 

        
      Name:            
      Title:            

 

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STATE OF                     

 

                     County, ss.                 , 20     

On this      day of              , 20      , before me, the undersigned notary public, personally appeared                      , the                      of Digital Realty Trust, Inc., a Maryland corporation which is the general partner of Digital Realty Trust, L.P., a Maryland limited partnership which is the member and manager of Digital Alfred, LLC, proved to me through satisfactory evidence of identification, which was                      , to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he signed it voluntarily for its stated purpose, as the                      of Digital Realty Trust, Inc., a Maryland corporation which is the general partner of Digital Realty Trust, L.P., a Maryland limited partnership which is the member and manager of Digital Alfred, LLC.

                                          (official signature and seal of notary)

My commission expires                                         

[Affix Seal]

 

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COMMONWEALTH OF MASSACHUSETTS

 

                     County, ss.                 , 20     

On this      day of              , 20      , before me, the undersigned notary public, personally appeared                      , the                      of Constant Contact, Inc., proved to me through satisfactory evidence of identification, which was                                           , to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he signed it voluntarily for its stated purpose, as the                      of Constant Contact, Inc.

                                          (official signature and seal of notary)

My commission expires                                         

[Affix Seal]

 

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EXHIBIT 1

Legal Description

 

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FIRST AMENDMENT

TO

TURN KEY DATACENTER LEASE

THIS FIRST AMENDMENT TO TURN KEY DATACENTER LEASE (this “ Amendment ”) is made and entered into as of the latest date of execution as set forth on the signature page hereof (the “ 1A Effective Date ”), by and between DIGITAL ALFRED, LLC , a Delaware limited liability company (“ Landlord ”), and CONSTANT CONTACT, INC. , a Delaware corporation (“ Tenant ”).

W I T N E S S E T H:

WHEREAS , Landlord and Tenant have heretofore entered into that certain Turn Key Datacenter Lease having an effective date of December 31, 2010 (the “ TKD Lease ”), covering approximately 3,600 total square feet of area (the “ Premises ”) located in Suite 140 (the “ Datacenter ”), in that certain building located at 3105 Alfred Street, Santa Clara, California (the “ Building ”);

WHEREAS , Landlord and Tenant have heretofore entered into that certain POP Room Rider having an effective date of December 31, 2010 (the “ POP Rider ”), which amends and modifies the TKD Lease and covers (i) two (2) one-quarter (1/4) racks in Suite 155 of the Building, and (ii) two (2) one-quarter (1/4) racks in Suite 142 of the Building (the TKD Lease and the POP Rider are referred to herein, collectively, as the “ Lease ”);

WHEREAS , any capitalized term or phrase used in this Amendment shall have the same meaning as the meaning ascribed to such term or phrase in the Lease unless expressly otherwise defined in this Amendment; and

WHEREAS , Landlord and Tenant desire to further modify the terms of the Lease in accordance with the terms and conditions herein provided.

NOW, THEREFORE , for and in consideration of the sum of Ten and No/100 Dollars ($10.00) and other good and valuable consideration paid by each party hereto to the other, the receipt and sufficiency of which are hereby mutually acknowledged, Landlord and Tenant hereby agree as follows:

1. Early Access .

A. Definitions . As used herein:

(i) “ Early Access ” shall mean and refer to Tenant’s ability to enter Premises-A prior to the Commencement Date and Premises-B prior to the Phase II Expansion Date, for the purposes of inspecting same and for performing Tenant Work.

 

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(ii) “ Early Access Date ” shall mean and refer to the date upon which Landlord provides Tenant the Early Access Notice. Landlord agrees to use commercially reasonable efforts to cause the Early Access Date to occur on or before April 1, 2011 .

(iii) “ Early Access Notice ” shall mean and refer to the notice from Landlord to Tenant notifying Tenant that Landlord has advanced the Commencement Date Conditions sufficiently to allow Tenant to engage in certain activities of Tenant Work prior to the Commencement Date.

(iv) “ Early Access Period ” shall mean and refer to (a) the period between the Early Access Date and the Commencement Date, as it relates to Premises-A, and (b) the period between the Early Access Date and the Phase II Expansion Date, as it relates to Premises-B.

(v) “ Tenant Work ” shall mean and refer to all installations in the Premises, other than the completion of the Commencement Date Conditions, including the installation of Tenant’s Personal Property.

B. License . Landlord agrees to permit Tenant and the other Tenant Parties to have Early Access in the Premises, on and after the Early Access Date, except during the performance of Commissioning of the Datacenter. Any such permission shall constitute a license only, conditioned upon Tenant and Tenant’s contractors’ obtaining Landlord’s prior written consent (not to be unreasonably withheld) with regard to each item of Tenant Work that any of such parties desire to undertake during the Early Access Period. Notwithstanding anything in the Lease or this Amendment to the contrary, the Early Access Period may be reduced by Landlord to the extent such Early Access materially interferes with Landlord’s ability to complete the Commencement Date Conditions on or before the Target Commencement Date. Tenant’s Early Access shall be subject to (and, during such period, Tenant must comply with) all of the terms and provisions of this Lease, excepting only the payment of Base Rent; provided, however, Tenant’s Early Access to Premises-B during Phase I shall not affect Tenant’s obligation to pay Base Rent during the Phase I period. Additionally, Tenant agrees that (a) Landlord’s obligations to provide services to Premises-A and/or the equipment serving Premises-A shall commence on the Commencement Date and shall not apply during the Early Access Period for Premises-A, (b) Landlord’s obligations to provide services to Premises-B and/or equipment serving Premises-B shall commence on the Phase II Expansion Date and shall not apply during the Early Access Period for Premises-B, and (c) Tenant shall be required to pay any and all electricity charges that accrue to the Premises during the Early Access Period. For the avoidance of doubt, Tenant agrees that Tenant will only perform Tenant Work in the Premises during the Early Access Period, and that Tenant will not commence business operations in Premises-A prior to the Commencement Date, nor will Tenant commence business operations in Premises-B prior to the Phase II Expansion Date.

2. Confidentiality . Each party agrees that (i) the terms and provisions of this Amendment are confidential and constitute proprietary information of the parties; and (ii) as such, the terms and provisions of this Amendment are, and shall be, subject to the terms of Section 17.19 of the Standard Lease Provisions of the TKD Lease.

 

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3. Miscellaneous .

A. In the event that the terms of the Lease conflict or are inconsistent with those of this Amendment, the terms of this Amendment shall govern.

B. The Lease is hereby amended as and where necessary to give effect to the express terms of this Amendment. Except as amended by this Amendment, the terms of the Lease remain in full force and effect.

C. This Amendment shall become effective only upon execution and delivery by both Landlord and Tenant.

D. This Amendment may be executed simultaneously in two or more counterparts each of which shall be deemed an original, but all of which shall constitute one and the same Amendment. Landlord and Tenant agree that the delivery of an executed copy of this Amendment by facsimile or e-mail shall be legal and binding and shall have the same full force and effect as if an original executed copy of this Amendment had been delivered.

[SIGNATURE PAGE TO FOLLOW]

 

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IN WITNESS WHEREOF , Landlord and Tenant have caused this Amendment to be executed on the respective dates set forth below, to be effective as of the 1A Effective Date.

 

LANDLORD :

DIGITAL ALFRED, LLC,

a Delaware limited liability company

By:   Digital Realty Trust, L. P.,
  a Maryland limited partnership,
  its member and manager
  By:   Digital Realty Trust, Inc.,
    a Maryland corporation,
    its general partner
    By:  

/s/ Richard Berk

    Name:   Richard Berk
    Title:   Vice President Portfolio Management, West Region
Date: March 31, 2011

 

TENANT :

CONSTANT CONTACT, INC.,

a Delaware corporation

By:  

/s/ John J. Walsh, Jr.

Name:   John J. Walsh, Jr.
Title:   Senior Vice President, Engineering and Operations
Date: March 27, 2011

 

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SECOND AMENDMENT

TO

TURN KEY DATACENTER LEASE

THIS SECOND AMENDMENT TO TURN KEY DATACENTER LEASE (this “ Amendment ”) is made and entered into as of (but not necessarily on) the latest of the parties’ respective dates of execution set forth on the signature page hereof (the “ 2A Effective Date ”), by and between DIGITAL ALFRED, LLC , a Delaware limited liability company (“ Landlord ”), and CONSTANT CONTACT, INC. , a Delaware corporation (“ Tenant ”).

W I T N E S S E T H:

WHEREAS , Landlord and Tenant have heretofore entered into that certain Turn Key Datacenter Lease having an effective date of December 31, 2010 (the “ Original TKD Lease ”), as amended by that certain First Amendment to Turn Key Datacenter Lease having an effective date of March 31, 2011 (the “ 1A ”; together with the Original TKD Lease, collectively, the “ TKD Lease ”), covering approximately 3,600 total square feet of area located in Suite 140 and certain pathway rights (collectively, the “ Tenant Space ”), in that certain building located at 3105 Alfred Street, Santa Clara, California (the “ Building ”);

WHEREAS , Landlord and Tenant have heretofore entered into that certain POP Room Rider having an effective date of December 31, 2010 (the “ POP Rider ”), which amends and modifies the TKD Lease and covers (i) two (2) one-quarter (1/4) racks in Suite 155 of the Building, and (ii) two (2) one-quarter (1/4) racks in Suite 142 of the Building (the TKD Lease and the POP Rider are referred to herein, collectively, as the “ Lease ”);

WHEREAS , the Lease commenced eighteen (18) days following the Outside Completion Date set forth in the TKD Lease (the “ Late Lease Commencement ”);

WHEREAS , each capitalized term or phrase used in this Amendment shall have the same meaning as the meaning ascribed to such term or phrase in the Lease unless expressly otherwise defined in this Amendment; and

WHEREAS , Landlord and Tenant desire to further modify the terms of the Lease in accordance with the terms and conditions herein provided.

NOW, THEREFORE , for and in consideration of the sum of Ten and No/100 Dollars ($10.00) and other good and valuable consideration paid by each party hereto to the other, the receipt and sufficiency of which are hereby mutually acknowledged, Landlord and Tenant hereby agree as follows:

1. Tenant Improvement Allowance; Installation Fee .

A. 2A Tenant Improvement Allowance . Contemporaneously with Landlord’s execution of this Amendment, Landlord hereby agrees to deliver the sum of

 

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$50,000.00 (the “ 2A Tenant Improvement Allowance ”) to Tenant, as a tenant improvement allowance. Notwithstanding anything in the Lease to the contrary, Tenant hereby (i) agrees that the 2A Tenant Improvement Allowance shall be Tenant’s sole and exclusive remedy with respect to the Late Lease Commencement, and (ii) releases and holds harmless Landlord and the other members of the Landlord Group from any and all Claims arising from, in connection with, or in any manner related to the Late Lease Commencement (“ Tenant’s Release ”). Tenant’s Release shall survive the expiration or termination of the Lease.

B. Installation Fee . Landlord and Tenant acknowledge that Landlord has not yet invoiced Tenant for, and Tenant has not yet paid, the Installation Fee. Effective as of, and from and after, the 2A Effective Date, Landlord does hereby waive the Installation Fee contained in Item 9 of the Basic Lease Information of the TKD Lease. Accordingly, effective as of, and from and after, the 2A Effective Date:

(i) Tenant shall no longer be obligated to pay the Installation Fee;

(ii) Item 9 of the Basic Lease Information of the TKD Lease is hereby amended and restated in its entirety to read as follows:

 

9.     Intentionally Deleted :    Intentionally Deleted.

(iii) Section 3.2 of the Standard Lease Provisions of the TKD Lease is hereby amended and restated in its entirety to read as follows:

3.2 Installation Fee . Intentionally Deleted.

2. Estoppel . Tenant hereby (a) confirms, to the best of Tenant’s actual knowledge, Landlord is not in default under the Lease as of the date this Amendment is executed by Tenant, and (b) confirms that, to the best of Tenant’s actual knowledge, as of the date this Amendment is executed by Tenant, Landlord has no outstanding obligations with respect to the Tenant Space and/or under the Lease that would, with the passage of time, the giving of notice, or both, result in Landlord being in default under the Lease.

3. Confidentiality . Each party agrees that the terms and provisions of this Amendment are confidential and shall be governed by Section 17.19 of the Standard Lease Provisions of the TKD Lease as though the terms hereof were originally part of the Lease.

4. Miscellaneous .

A. In the event that the terms of the Lease conflict or are inconsistent with those of this Amendment, the terms of this Amendment shall govern. In that connection, the Lease is hereby amended as and where necessary, even though not specifically referred to herein, in order to give effect to the terms of this Amendment.

B. Except as amended by this Amendment, the terms of the Lease are ratified by the parties and remain in full force and effect.

 

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C. Submission of this Amendment for examination does not constitute an offer, right of first refusal, reservation of, or option for, any premises in or on the Building. This Amendment shall become effective only upon execution and delivery by both Landlord and Tenant.

D. This Amendment may be executed simultaneously in two or more counterparts each of which shall be deemed an original, but all of which shall constitute one and the same Amendment. Landlord and Tenant agree that the delivery of an executed copy of this Amendment by facsimile or e-mail shall be legal and binding and shall have the same full force and effect as if an original executed copy of this Amendment had been delivered.

[SIGNATURE PAGE TO FOLLOW]

 

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IN WITNESS WHEREOF , Landlord and Tenant have caused this Amendment to be executed on the respective dates set forth below, to be effective as of the 2A Effective Date.

 

LANDLORD:

DIGITAL ALFRED, LLC,

a Delaware limited liability company

By:   

  Digital Realty Trust, L. P.,
  a Maryland limited partnership,
  its member and manager
 

By:   

  Digital Realty Trust, Inc.,
    a Maryland corporation,
    its general partner
   

By:   

 

/s/ Richard Berk

   

Name:

  Richard Berk
   

Title:

  Vice President Portfolio Management, West Region

Date: December 15, 2011

TENANT :

 

CONSTANT CONTACT, INC.,

a Delaware corporation

By:

 

/s/ John J. Walsh, Jr.

Name:

  John J. Walsh, Jr.

Title:

  Senior Vice President, Engineering and Operations

Date: November 28, 2011

 

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Exhibit 10.12

Datacenter Lease

 

 

55 MIDDLESEX TURNPIKE

 

 

DATACENTER LEASE

Between

DIGITAL 55 MIDDLESEX, LLC

as Landlord

and

CONSTANT CONTACT, INC.

as Tenant

Dated

January 1, 2011


TABLE OF CONTENTS

 

              Page  

1.

 

LEASE OF TENANT SPACE

     1   
 

1.1

  

Tenant Space

     1   
 

1.2

  

Condition of Tenant Space

     1   
 

1.3

  

Datacenter Connection Area

     1   
 

1.4

  

Relocation Right

     1   
 

1.5

  

Quiet Enjoyment; Access

     1   
 

1.6

  

Common Area

     1   

2.

 

TERM

     1   
 

2.1

  

Term

     1   
 

2.2

  

Delivery of Tenant Space

     2   
 

2.3

  

Extension Options

     2   

3.

 

BASE RENT AND OTHER CHARGES

     3   
 

3.1

  

Base Rent

     3   
 

3.2

  

Installation Fee

     3   
 

3.3

  

Payments Generally

     3   
 

3.4

  

Late Payments

     3   
 

3.5

  

Utilities

     4   

4.

 

TAXES

     5   
 

4.1

  

Taxes - Equipment

     5   
 

4.2

  

Taxes - Other

     5   

5.

 

INTENTIONALLY DELETED

     5   

6.

 

PERMITTED USE; COMPLIANCE WITH RULES AND LAWS; HAZARDOUS MATERIALS

     5   
 

6.1

  

Permitted Use

     5   
 

6.2

  

Datacenter Rules and Regulations

     5   
 

6.3

  

Compliance with Laws; Hazardous Materials

     6   
 

6.4

  

Electricity Consumption Threshold

     6   
 

6.5

  

Maximum Structural Load

     7   

7.

 

ACCESS CONTROL; LANDLORD’S ESSENTIAL SERVICES; INTERRUPTION OF SERVICES

     7   
 

7.1

  

Access Control

     7   
 

7.2

  

Landlord’s Essential Services

     7   
 

7.3

  

Interruption of Services

     7   
 

7.4

  

SAS-70 Reporting

     7   
 

7.5

  

Self-Help Restriction

     8   

8.

 

MAINTENANCE; ALTERATIONS; REMOVAL OF TENANT’S PERSONAL PROPERTY

     8   
 

8.1

  

Landlord’s Maintenance

     8   

 

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TABLE OF CONTENTS

(continued)

 

              Page  
 

8.2

  

Tenant’s Maintenance

     8   
 

8.3

  

Alterations

     8   
 

8.4

  

Removal of Tenant’s Personal Property

     9   

9.

 

CASUALTY EVENTS; TAKINGS; INSURANCE

     9   
 

9.1

  

Casualty Events; Takings

     9   
 

9.2

  

Tenant’s Remedy

     11   
 

9.3

  

Tenant’s Insurance

     11   
 

9.4

  

Landlord’s Insurance

     11   

10.

 

TRANSFERS

     11   
 

10.1

  

Restrictions on Transfers; Landlord’s Consent

     11   
 

10.2

  

Notice to Landlord

     11   
 

10.3

  

Landlord’s Recapture Rights

     11   
 

10.4

  

No Release; Subsequent Transfers

     12   
 

10.5

  

Colocation

     12   
 

10.6

  

Excess Rent

     12   

11.

 

ESTOPPEL CERTIFICATES

     12   

12.

 

SUBORDINATION AND ATTORNMENT; HOLDER RIGHTS

     12   
 

12.1

  

Subordination and Attornment

     12   
 

12.2

  

Holder Protection

     13   
 

12.3

  

SNDA

     13   

13.

 

SURRENDER OF TENANT SPACE; HOLDING OVER

     13   
 

13.1

  

Tenant’s Method of Surrender

     13   
 

13.2

  

Disposal of Tenant’s Personal Property

     13   
 

13.3

  

Holding Over

     13   
 

13.4

  

Survival

     14   

14.

 

WAIVERS; INDEMNIFICATION; CONSEQUENTIAL DAMAGES; LIENS

     14   
 

14.1

  

Waivers

     14   
 

14.2

  

Indemnification

     14   
 

14.3

  

Consequential Damages

     16   
 

14.4

  

Liens

     16   

15.

 

TENANT DEFAULT

     16   
 

15.1

  

Events of Default By Tenant

     16   
 

15.2

  

Remedies

     17   

16.

 

LANDLORD’S LIABILITY

     17   
 

16.1

  

Landlord Default; Tenant’s Remedies

     17   
 

16.2

  

Landlord’s Liability

     18   
 

16.3

  

Transfer of Landlord’s Interest

     18   

 

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TABLE OF CONTENTS

(continued)

 

              Page  

17.

 

MISCELLANEOUS

     18   
 

17.1

  

Severability

     18   
 

17.2

  

No Waiver

     18   
 

17.3

  

Attorneys’ Fees and Costs

     19   
 

17.4

  

Waiver of Right to Jury Trial

     19   
 

17.5

  

Headings; Time; Survival

     19   
 

17.6

  

Notices

     19   
 

17.7

  

Governing Law; Jurisdiction

     19   
 

17.8

  

Incorporation; Amendment; Merger

     19   
 

17.9

  

Brokers

     19   
 

17.10

  

Examination of Lease; Binding on Parties

     20   
 

17.11

  

Recordation

     20   
 

17.12

  

Authority

     20   
 

17.13

  

Successors and Assigns

     20   
 

17.14

  

Force Majeure

     20   
 

17.15

  

No Partnership or Joint Venture; No Third Party Beneficiaries

     20   
 

17.16

  

Access By Landlord

     20   
 

17.17

  

Rights Reserved by Landlord

     21   
 

17.18

  

Counterparts; Delivery by Facsimile or E-mail

     21   
 

17.19

  

Confidentiality

     21   
 

17.20

  

Incorporation of Schedules and Exhibits

     22   
 

17.21

  

Financial Statements

     22   
 

17.22

  

Master Lease

     22   
 

17.23

  

Conversion of Previous Agreement

     22   

 

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SCHEDULE “1”

CERTAIN DEFINED TERMS

ACM ” shall mean and refer to asbestos, asbestos-containing materials or presumed asbestos-containing materials.

Additional Rent ” shall mean and refer to all amounts (other than Base Rent) payable by Tenant to Landlord pursuant to this Lease, whether or not denominated as such.

Affiliate Transfer ” shall mean and refer to an assignment by Tenant of this Lease to a Tenant Affiliate where (x) Tenant gives Landlord prior written notice of the name of such Tenant Affiliate, and (y) the applicable Tenant Affiliate assumes, in writing, for the benefit of Landlord, all of Tenant’s obligations under this Lease.

Aggregate Direct Electric Loads ” shall mean and refer to all electricity associated with Metered Direct Electric Loads and Unmetered Direct Electric Loads.

Alterations ” shall mean and refer to any alterations, additions, improvements or replacements to the Tenant Space, or any other portion of the Building or Property performed by or on behalf of Tenant or any other Tenant Party.

Ancillary Utility Costs ” shall mean and refer to (a) all costs associated with the purchase by Landlord of electricity, power, fuel, oil, water treatment chemicals or other consumable utilities or commodities (including any water, electricity or other utility costs associated with the production or distribution of chilled water or HVAC services), exclusive of costs associated with Aggregate Direct Electric Loads for any Building tenant, and (b) reasonable utility costs associated with Landlord’s provisions of lighting and HVAC services to the Common Area; provided, however, that in no event shall Ancillary Utility Costs include the cost of capital expenditures associated with (a) and (b) above.

Applicable Laws ” shall mean and refer to (a) all laws, ordinances, building codes, rules, regulations, orders and directives of any governmental authority now or hereafter having jurisdiction over the Property, (b) all covenants, conditions and restrictions now or hereafter affecting the Property, and (c) all rules, orders, regulations and requirements of any applicable fire rating bureau or other organization performing a similar function for the Property.

Back-Up Power Specifications ” shall mean and refer to the specific elements of back-up power that are described in Items 2 & 3 of Exhibit “F” , Table A.

Back-Up Power Systems ” shall mean and refer to the specific equipment used by Landlord to meet the Back-Up Power Specifications.

Base Rent ” shall mean and refer to the amounts of Base Rent set forth in Item 8 of the Basic Lease Information.

Building ” shall mean and refer to the Building described in Item 15 of the Basic Lease Information.

Building Systems ” shall mean and refer to the Building and/or Property systems and equipment, including, without limitation, all fire/life safety, electrical, HVAC, plumbing or sprinkler, access control (including, without limitation, Landlord’s Access Control Systems), mechanical, and telecommunications systems and equipment.

Cables ” shall mean and refer to all fiber and/or copper cabling that is placed into the Pathway by Landlord on Tenant’s behalf, or by Tenant and/or by any other Tenant Party.

Card Reader Completion Notice ” shall mean and refer to a notice from Landlord to Tenant, memorializing Landlord’s completion of the Card Reader Installation

 

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Casualty-Complete ” shall mean and refer to a Casualty Event that results in the complete destruction of the Building.

Casualty Event ” shall mean and refer to fire, explosion or any other disaster causing damage to the Property, the Building, or the Tenant Space.

Casualty Repair ” shall mean and refer to the repair and reconstruction of the damaged portion(s) of the Building and/or the Tenant Space to substantially the same condition in which they existed immediately prior to a particular Casualty Event.

Casualty Repair Notice ” shall mean and refer to written notice by Landlord to Tenant notifying Tenant of the Repair Period-Estimated.

Chronic Outage ” shall mean and refer to the occurrence in any Suite or more than one Suite of three (3) or more Qualifying Chronic Outages within a twelve (12) consecutive month period. For the avoidance of doubt and by way of example, one (1) Qualifying Chronic Outage with respect to each of Suite 1.5, 1.5.1, and 1.5.2 within a twelve (12) consecutive month period would constitute a Chronic Outage. Similarly, three (3) Qualifying Chronic Outages with respect to Suite 1.5 within a twelve (12) consecutive month period would constitute a Chronic Outage.

Chronic Outage Termination Notice ” shall mean and refer to written notice from Tenant to Landlord, delivered within thirty (30) days after the occurrence of a Chronic Outage, that Tenant thereby terminates this Lease.

Claims ” shall mean and refer to all third party claims, actions, suits and proceedings, and all losses, damages, obligations, liabilities, penalties, fines, costs and expenses arising from any such claims, actions, suits, or proceedings, including, without limitation, attorneys’ fees, legal costs, and other costs and expenses of defending against any such claims, actions, suits, or proceedings.

Colocation Activity ” shall mean and refer to the installation, operation and maintenance by a Colocation Party of such Colocation Party’s computer, switch and/or communications equipment in the Tenant Space, and the connection of such equipment with the equipment of other Colocation Parties within the Tenant Space.

Colocation Agreement ” shall mean and refer to a license agreement, by and between Tenant and a Colocation Customer, whereby Tenant provides such Colocation Customer (and its related Colocation Parties) a license for the sole purpose of engaging in Colocation Activities within the Tenant Space.

Colocation Customer ” shall mean and refer to a non-carrier customer of Tenant, who desires to engage in Colocation Activities within the Tenant Space, under and pursuant to a Colocation Agreement.

Colocation Party ” shall mean and refer to any person claiming, directly or indirectly, by, through or under any Colocation Customer, together with the officers, agents, servants and employees of each Colocation Customer.

Common Area ” shall mean and refer to that part of the Property lying outside the Premises designated by Landlord from time to time for the common use of all tenants of the Building, as applicable, including among other facilities, the sidewalks, service corridors, curbs, truck ways, loading areas, private streets and alleys, lighting facilities, halls, lobbies, delivery passages, elevators, drinking fountains, meeting rooms, public toilets, parking areas and garages, decks and other parking facilities, landscaping and other common rooms and common facilities.

Consequential Damages ” shall mean and refer to consequential damages, incidental damages, indirect damages, or special damages, or for loss of profit, loss of business opportunity or loss of income.

 

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Continuous Outage ” shall mean and refer to an Interruption of Landlord’s Essential Services that continues for fifteen (15) consecutive days, regardless of whether or not such Interruption of Landlord’s Essential Services was caused by Force Majeure.

Continuous Outage Termination Notice ” shall mean and refer to written notice from Tenant to Landlord, delivered within thirty (30) days after the occurrence of a Continuous Outage, that Tenant thereby terminates this Lease.

Control ”, as used in the definition of Tenant Affiliate, shall mean and refer to the right to exercise, directly or indirectly, fifty percent (50%) or more of the voting rights attributable to the controlled entity and/or the power to elect a majority of the controlled entity’s board of directors.

Datacenter Connection Area ” shall mean and refer to the central shared point of pathway access in the Building, as designated by Landlord.

Datacenter Rules and Regulations ” shall mean and refer to Landlord’s rules and regulations for the Building, as same may be amended from time to time in accordance with Section 6.2 of the Lease. The current version of the Datacenter Rules and Regulations is available on the Internet at the following URL:

http://www.digitalrealtytrust.com/leasing/

Deadline Date ” shall mean and refer to the date that is thirty (30) days following the latest date of execution as set forth on the signature page attached hereto.

Default Rate ” shall mean and refer to an interest rate equal to the lesser of (a) one percent (1%) per month or (b) the maximum lawful rate of interest.

Delinquency Date ” shall mean and refer to the date that is five (5) days after the date on which any particular payment of Rent is due from Tenant to Landlord.

Digital ” shall mean and refer to Digital Realty Trust, L.P., a Maryland limited partnership.

ECT Default Notice ” shall mean and refer to written notice from Landlord notifying Tenant of an ECT Overage.

ECT Overage ” shall mean and refer to a situation in which the electricity consumption in any Suite exceeds the Electricity Consumption Threshold for such Suite.

ECT – Suite 1.14A ” shall mean and refer to the amount of electrical power described as ECT – Suite 1.14A in Item 1 of Exhibit “F” , Table A.

ECT – Suite 1.5 ” shall mean and refer to the amount of electrical power described as ECT – Suite 1.5 in Item 1 of Exhibit “F” , Table A.

ECT – Suite 1.5.1 ” shall mean and refer to the amount of electrical power described as ECT – Suite 1.5.1 in Item 1 of Exhibit “F” , Table A.

ECT – Suite 1.5.2 ” shall mean and refer to the amount of electrical power described as ECT – Suite 1.5.2 in Item 1 of Exhibit “F” , Table A.

Electricity Consumption Threshold ” shall mean and refer to (a) the ECT – Suite 1.5 as it relates to Suite 1.5, (b) ECT – Suite 1.5.1 as it relates to Suite 1.5.1, (c) ECT – Suite 1.5.2 as it relates to Suite 1.5.2, and (d) ECT – Suite 1.14A as it relates to Suite 1.14A.

Electricity Specifications ” shall mean and refer, collectively, to the Electricity Consumption Threshold and the Back-Up Power Specifications.

 

-iii-


Environmental Laws ” shall mean and refer to all now and hereafter existing Applicable Laws regulating, relating to, or imposing liability or standards of conduct concerning public health and safety or the environment.

Event of Default by Tenant ” shall mean and refer to the occurrence of any of the Events of Default by Tenant described in Sections 15.1.1-15.1.5, inclusive.

Excess Rent ” shall mean and refer to any consideration in excess of the sum of (a) the pro-rata portion of Rent applicable to the portion of the Tenant Space subject to the assignment or sublease, less (b) the reasonable leasing costs (i.e., tenant improvement allowances, other design and construction costs, legal fees and broker commissions paid by Tenant) actually incurred by Tenant in connection with such sublease or assignment.

Existing Pathways ” shall mean and refer to the Existing Pathways described on Exhibit “C” to the Lease.

Extension Option ” shall mean and refer to Tenant’s option to extend the Term of the Lease, the number and duration of which is as set forth in Item 6 of the Basic Lease Information, and the terms for which are as set forth in Section 2.3 of the Standard Lease Provisions.

Extension Option Exercise Notice ” shall mean and refer to written notice from Tenant to Landlord specifying that Tenant is irrevocably exercising an Extension Option so as to extend the Term of this Lease by the applicable Extension Term on the terms set forth in Section 2.3 of the Standard Lease Provisions.

Extension Term ” shall mean and refer to the duration of each duly authorized Extension Option, as set forth in Item 6 of the Basic Lease Information.

Extension Term Base Rent ” shall mean and refer to the monthly Base Rent payable with respect to the Tenant Space during an Extension Term.

Financial Statements ” shall mean and refer to audited annual financial statements of the indicated entity, including (i) an opinion of a certified public accountant, (ii) a balance sheet, and (iii) a profit and loss statement (income statement), all prepared in accordance with generally accepted accounting principles consistently applied.

First Interruption ” shall mean and refer to the first (1 st ) Separate/Independent Interruption of Landlord’s Essential Services occurring in any Suite in any period of twelve (12) consecutive months.

Force Majeure ” shall mean and refer to any cause or reason beyond the reasonable control of the party obligated to perform hereunder, including, but not limited to, strike, labor trouble, governmental rule, regulations, ordinance, statute or interpretation, or fire, earthquake, or civil commotion.

Four-Plus Interruption ” shall mean and refer to the fourth (4 th ), and any subsequent, Separate/Independent Interruption of Landlord’s Essential Services occurring in any Suite in any then-current Interruption Accrual Period.

Generator Fuel Usage ” shall mean and refer to Tenant’s pro rata share of all fuel used by the element(s) of the Back-Up Power Systems described in Item 3 of Exhibit “F” , Table A. Such pro rata share shall be calculated in a manner consistent with Section 3.5.4 of the Standard Lease Provisions.

Generator Fuel Payment ” shall mean and refer to the actual cost of all Generator Fuel Usage that is not Maintenance Fuel Usage.

Handle ,” “ Handled ,” or “ Handling ” shall mean and refer to any installation, handling, generation, storage, treatment, use, disposal, discharge, release, manufacture, refinement, presence, migration, emission, abatement, removal, transportation, or any other activity of any type in connection with or involving Hazardous Materials.

 

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Hazardous Materials ” shall mean and refer to: (1) any material or substance: (i) which is defined or becomes defined as a “hazardous substance,” “hazardous waste,” “infectious waste,” “chemical mixture or substance,” or “air pollutant” under Environmental Laws; (ii) containing petroleum, crude oil or any fraction thereof; (iii) containing PCBs; (iv) containing ACM; (v) which is radioactive; (vi) which is infectious; or (2) any other material or substance displaying toxic, reactive, ignitable, explosive or corrosive characteristics, and is defined, or becomes defined by any Environmental Law.

Holder ” shall mean and refer to any mortgagee or beneficiary with a mortgage or deed of trust encumbering the Property or any portion thereof, or any lessor of a ground or underlying lease with respect to the Property or any portion thereof.

HVAC ” shall mean and refer to heating, ventilation and air conditioning.

HVAC Specifications ” shall mean and refer to the specifications set forth in Item 4(a) and (b) of Exhibit “F” , Table A.

Installation Fee ” shall mean and refer to the Installation Fee set forth in Item 9 of the Basic Lease Information, subject to the terms of Section 3.2 of the Standard Lease Provisions.

Interruption Accrual Period ” shall, as it relates to each Suite, mean and refer to the period of twelve (12) consecutive months occurring from and after each First Interruption.

Interruption Cure Completion Notice ” shall mean and refer to written notice from Landlord that a particular Interruption of Landlord’s Essential Services or Loss of Redundancy has been rectified.

Interruption – Electrical ” shall mean and refer to the occurrence of a partial or complete interruption of electricity to any collective pair of A-side and B-side PDUs supplying electrical power to Tenant’s Personal Property within the Premises; provided that such occurrence is not caused by any act or omission of Tenant or any other Tenant Party, nor by a Casualty Event, nor by, or during, an ECT Overage. The foregoing notwithstanding, if (a) Tenant fails to take advantage of the redundant electrical design of the Premises (e.g. Tenant “single-cords” its equipment in a scenario where “dual-cording” of Tenant’s equipment is available), (b) there occurs an interruption of electricity to one (1) or more PDUs from which Tenant draws electricity to power Tenant’s Personal Property, (c) such interruption results in a power outage in one (1) or more items of Tenant’s Personal Property, and (d) such power outage could have been avoided if Tenant had taken proper advantage of the electrical redundancies in the Premises, then such interruption will be deemed not to have been an Interruption – Electrical.

Interruption – Electrical Duration Threshold ” shall mean and refer to an aggregate of six (6) minutes in any rolling twelve (12) month period.

Interruption – Humidity ” shall mean and refer to the occurrence of the average relative humidity of a Suite measured at the return air vents in such Suite being outside of the Target Humidity Range for a period of ninety (90), or more, consecutive minutes; provided that such occurrence is not caused by any act or omission of Tenant or any other Tenant Party, nor by a Casualty Event, nor by, or during, an ECT Overage. For the avoidance of doubt, the duration of each Interruption – Humidity shall commence from and after the expiration of the ninetieth (90 th ) consecutive minute of the average relative humidity of such Suite being outside of such Target Humidity Range.

Interruption of Landlord’s Essential Services ” shall mean and refer to (a) an Interruption – Electrical; (b) an Interruption – Temperature, or (c) an Interruption – Humidity.

Interruption – Temperature ” shall mean and refer to the occurrence of the average temperature of a Suite measured at the return air vents in such Suite being outside of the Target Temperature Range for a period of ninety (90), or more, consecutive minutes; provided that such occurrence is not caused by any act or omission of Tenant or any other Tenant Party, nor by a Casualty Event, nor by, or during, an ECT Overage. For the avoidance of doubt, the duration of each Interruption – Temperature shall commence from and after the expiration of the ninetieth (90 th ) consecutive minute of the average temperature of such

 

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Suite being outside of the Target Temperature Range. The foregoing notwithstanding, in the event that the average temperature of a Suite measured at the return air vents in such Suite reaches (or exceeds) one hundred (100) degrees Fahrenheit for any period of time , such occurrence will be deemed to have been an Interruption – Temperature, regardless of whether such average temperature has been outside of the Target Temperature Range for ninety (90) consecutive minutes; provided that such occurrence is not caused by any act or omission of Tenant or any other Tenant Party, nor by a Casualty Event, nor by, or during, an ECT Overage).

Land ” shall mean and refer to the Land described in Item 14 of the Basic Lease Information.

Landlord ” shall mean and refer to the Landlord set forth in Item 1 of the Basic Lease Information.

Landlord Default ” shall mean and refer to the occurrence of a Landlord Default, as described in Section 16.1.1.

Landlord Group ” shall mean and refer to Landlord and its directors, officers, shareholders, members, employees, constituent partners, affiliates, beneficiaries and trustees.

Landlord’s Access Control Systems ” shall mean and refer to: (i) a check-in desk at the Building’s main entrance operated by Landlord twenty-four (24) hours per day, seven (7) days per week, fifty-two (52) weeks per year, (ii) an electronic “key card” system or biometric reader to control access to each Suite or the larger suite in which a Suite is located, including, upon installation, the Suite 1.14.A Cage Card Reader, and (iii) closed-circuit television cameras in critical common areas in the Building.

Landlord’s Actual Knowledge ” or similar phrase shall mean and refer to the actual current knowledge, as of the Effective Date, of Dianna Maddocks, Digital Realty Trust, L.P., Asset Manager for the Building, Chun M. Lee, Vice President of Digital Realty Trust, L.P., and David J. Caron, Senior Vice President of Digital Realty Trust, L.P. (the foregoing three (3) individuals, being employees of Digital Realty Trust, L.P., who would have direct and specific knowledge regarding the Building, but who shall not have the duty of additional investigation in connection with this Lease).

Landlord’s Essential Services ” shall mean and refer to Landlord’s obligations to meet the Electricity Specifications and the HVAC Specifications.

Landlord’s Installations ” shall mean and refer to the installations defined as such, as set forth on Exhibit “E” , attached hereto.

Landlord’s Lease Undertakings ” shall mean and refer to any representation, warranty, covenant, undertaking or agreement contained in any of the Lease Documents that is to be provided or performed by Landlord.

Landlord’s Liability Cap ” shall mean and refer to an aggregate amount of Landlord’s interest in the Property not to exceed $10,000,000.00.

Late Charge ” shall mean and refer to a sum equal to five percent (5%) of the amount of a particular Late Payment.

Late Payment ” shall mean and refer to the portion of any payment of Rent that (a) is not a disputed in good faith by Tenant in writing prior to the due date thereof; and (b) Landlord has not received from Tenant prior to the Delinquency Date.

Late Payment Interest ” shall mean and refer to interest on a particular Late Payment at the Default Rate.

Lease Documents ” shall mean and refer to this Lease and all schedules, exhibits, riders, amendments, and addenda to this Lease.

Loss of Redundancy ” shall mean and refer to the occurrence of any unscheduled disruption and/or loss of electricity to the A-side or B-side PDUs supplying electrical power to Tenant’s Personal Property within a

 

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Suite; provided that such occurrence is not caused by any act or omission of Tenant or any other Tenant Party, nor by a Casualty Event, nor by, or during, an ECT Overage. For the purposes of clarity, the disruption of electricity to any such A-side or B-side PDU that occurs (and continues only) during a PM Activity for the PDUs will be deemed not to have been a Loss of Redundancy.

Maintenance Fuel Usage ” shall mean and refer to Generator Fuel Usage that is used for the performance of Landlord’s maintenance obligations hereunder.

Master Lease ” shall mean and refer to an agreement between Landlord and the Third Party Tenant regarding the operation and control of the Premises.

Maximum Structural Load ” shall mean and refer to the Maximum Structural Load set forth in Item 19 of the Basic Lease Information.

Metered Direct Electrical Loads ” shall mean and refer to electrical loads fed by way of an electrical panel or PDU exclusively serving all or any part of the Tenant Space.

MMR Services ” shall mean and refer to the services typically provided by companies in the primary business of providing carrier-neutral interconnections, such as Equinix, CRG West and Telehouse, including without limitation, furnishing of space, racks and pathway to telecommunications carriers for the purpose of such carriers’ placement and maintenance of computer, switch and/or communications equipment and cross-connections by such carriers with the communications cable and facilities of other parties in the Building.

New Pathway Completion Date ” shall mean and refer to the date of the New Pathway Completion Notice.

New Pathway Completion Notice ” shall mean and refer to a notice from Landlord to Tenant, memorializing Landlord’s completion of the New Pathway Installation.

New Pathway Installation ” shall mean and refer to the New Pathway Installation as defined on Exhibit “C” , subject to the provisions of Section 2.2.1 of the Standard Lease Provisions.

Noticed Holder ” shall mean and refer to a Holder for which Tenant has been notified in writing of the address of such Holder.

Outage Credit ” means the quotient achieved by dividing the Base Rent of the affected Suite(s) for the month in which the Interruption of Landlord’s Essential Services occurred by 60.

Partial Month ” shall, in the event of a Commencement Date that occurs on a date that is other than the first (1 st ) day of a calendar month, mean and refer to the number of calendar days (including the Commencement Date) remaining in the month in which the Commencement Date occurs.

Pathways ” shall mean and refer to the Pathway described in Item 7 of the Basic Lease Information.

PCBs ” shall mean and refer to polychlorinated biphenyls.

PDUs ” shall mean and refer to power distribution units.

Permitted Transfer ” shall mean and refer to: (i) the transfer of a majority interest of the outstanding shares of stock of Tenant, (ii) the merger of Tenant with another entity or entities, and (iii) the sale of all or substantially all of Tenant’s assets, and/or (iv) Affiliate Transfers; provided that, in any such event, (a) the action is taken pursuant to a bona fide business transaction and not principally or exclusively as a means to evade the consent requirements under this Lease, and (b) the “Tenant” under this Lease after such transaction has a net worth (which shall be equal to total assets minus total liabilities and determined in accordance with generally accepted accounting principles (“ GAAP ”)) of not less than the net worth (as determined in accordance with GAAP) of Tenant as of the Effective Date of this Lease, as evidenced in a manner reasonably acceptable to Landlord.

 

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Permitted Use ” shall mean and refer to the placement, installation, operation, repair and maintenance of computer, switch and/or communications equipment and connections of such equipment (subject to the terms of Section 1.3 of the Standard Lease Provisions), via telecommunications cables, with the facilities and/or equipment of other tenants in the Building.

PM Activity ” shall mean and refer to each of the activities contained on Landlord’s then-current PM Standards.

PM Audit ” shall mean and refer to Tenant’s inspection of the PM Books and Records.

PM Audit Notice ” shall mean and refer to written notice of Tenant’s intent to perform a PM Audit.

PM Books and Records ” shall mean and refer to the books and records used by Landlord for documenting performance of the PM Activities.

PM Schedule ” shall mean and refer to Landlord’s then-current schedule for the performance of the PM Activities.

PM Standards ” shall mean and refer to the activities of preventative maintenance that Landlord performs with regard to the equipment that serves the Premises. Landlord’s current list of PM Standards is available on the Internet at the following URL:

http://www.digitalrealtytrust.com/leasing

POP Room ” shall mean and refer to the POP Room described in Item 16 of the Basic Lease Information.

Premises ” shall mean and refer to the Premises described in Item 7 of the Basic Lease Information.

Prepaid Rent ” shall mean and refer to the Prepaid Rent set forth in Item 10 of the Basic Lease Information, subject to the terms of Section 3.1 of the Standard Lease Provisions.

Previous Agreement ” shall mean and refer to that certain Master Services Agreement, as amended, by and between Sentinel Properties-Bedford, LLC, as predecessor-in-interest to Landlord, and Tenant, as customer, dated July 19, 2007, and relating to Tenant’s license to use the Previous Agreement Space and the Existing Pathway.

Previous Agreement Space ” shall mean and refer to, collectively, Suite 1.5 in the Building, Suite 1.5.1 in the Building, and Suite 1.5.2 in the Building.

Property ” shall mean and refer to the Land, the Building, and Landlord’s personal property thereon or therein.

Qualifying Chronic Outage ” shall mean and refer to the occurrence of:

(a) each Separate/Independent Interruption of Landlord’s Essential Services, which continues for four (4) or more consecutive hours, regardless of whether or not such Interruption of Landlord’s Essential Services was caused by Force Majeure (i.e., each such Interruption of Landlord’s Essential Services equals one (1) Qualifying Chronic Outage) for the Suite in which it occurs,

(b) each complete period of seven hundred twenty (720) consecutive hours occurring during a Loss of Redundancy (i.e., each such period equals one (1) Qualifying Chronic Outage) for the Suite in which it occurs, or

(c) the collective occurrence within a rolling period of ninety (90) consecutive days of five (5) Separate/Independent Interruptions of Landlord’s Essential Services - Electrical of any duration to the same pair of A-side and B-side PDUs, regardless of whether or not such Interruptions - Electrical were caused by Force Majeure (i.e., each five (5) equals one (1) Qualifying Chronic Outage), for the Suite in which it occurs.

 

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Rent ” shall mean and refer to all Base Rent, plus all Additional Rent.

Repair Period-Actual ” shall mean and refer to the period of time that it actually takes to repair and/or restore the Building following a Casualty Event in order to enable Tenant’s use of the Tenant Space in the ordinary conduct of Tenant’s business.

Repair Period-Estimated ” shall mean and refer to the period of time, which Landlord estimates will be required for the repair and/or restoration of the Building following a Casualty Event in order to enable Tenant’s use of the Tenant Space in the ordinary conduct of Tenant’s business.

Second Interruption ” shall mean and refer to the second (2 nd ) Separate/Independent Interruption of Landlord’s Essential Services occurring in any Suite in any then-current Interruption Accrual Period.

Security Documents ” shall mean and refer to: (i) all ground leases or underlying leases; (ii) the lien of any mortgage, deed, or deed of trust; (iii) all past and future advances made under any such mortgages, deeds, or deeds of trust; and (iv) all renewals, modifications, replacements and extensions of any such ground leases, master leases, mortgages, deeds, and deeds of trust.

Separate/Independent Interruption of Landlord’s Essential Services ”, and similar phrases used herein, shall mean and refer to (a) Interruptions of Landlord’s Essential Services that occur from separate and unrelated root causes; or (b) a further occurrence of a particular Interruption of Landlord’s Essential Services that occurs after Landlord has provided Tenant the Interruption Cure Completion Notice with regard to the immediately preceding occurrence of such Interruption of Landlord’s Essential Services.

Separate/Independent Interruption of Landlord’s Essential Services - Electrical ”, and similar phrases used herein, shall mean and refer to (a) Interruptions – Electrical that occur from separate and unrelated root causes; or (b) a further occurrence of a particular Interruption – Electrical that occurs after Landlord has provided Tenant the Interruption Cure Completion Notice with regard to the immediately preceding occurrence of such Interruption - Electrical.

SNDA ” shall mean and refer to a subordination, non-disturbance and attornment agreement in a form that is reasonably acceptable to Tenant, which provides that, so long as there is no Event of Default by Tenant, Tenant may remain in possession of the Tenant Space under the terms of this Lease, even if the Holder should acquire Landlord’s title to the Building.

Suite 1.14.A Cage Card Reader ” shall mean and refer to the electronic “key card” system to be installed by Landlord on the exterior of the cage located inside Suite 1.14.A, for the purpose of controlling access to such caged area.

Suite 1.5 Expiration Date ” shall mean and refer to the earlier to occur of (a) the last day of the twenty-fourth (24 th ) month of the Term of the Lease, and (b) the earlier termination of this Lease.

Suite 1.5 Surrender Date ” shall mean and refer to the later to occur of (a) the Suite 1.5 Expiration Date, and (b) the date on which Tenant has surrendered the Suite 1.5 Tenant Space to Landlord in accordance with Section 13.1.1 of the Standard Lease Provisions.

Suite 1.5 Tenant Space ” shall mean and refer to, collectively, Suite 1.5, Existing Pathway-A (as described on Exhibit “C” ) and Existing Pathway-C (as defined on Exhibit “C” ).

Suite 1.5 Term ” shall mean and refer to the period commencing on the Commencement Date and expiring on the Suite 1.5 Expiration Date.

System Efficiency Losses ” shall mean and refer to electricity usage or losses associated with transformers, wiring, panels, UPS systems and/or PDU’s residing upstream of the Metering Equipment – Tenant Space and downstream of the meter at which the local utility measures Building electrical usage.

 

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Taking ” shall mean and refer to the Property, or some portion thereof, having been taken under the power of eminent domain or condemned by any competent authority for any public or quasi-public use or purpose, or sold to prevent the exercise thereof.

Target Humidity Range ” the range of relative humidity percentages described in Item 4(b) of Exhibit “F” , Table A.

Target Temperature Range ” the range of temperatures described in Item 4(a) of Exhibit “F” , Table A.

Taxes – Equipment ” shall mean and refer to all governmental fees, taxes, tariffs and other charges levied directly or indirectly against any personal property, fixtures, machinery, equipment, apparatus, systems, connections, interconnections and appurtenances located in, or used by Tenant in or in connection with, the Tenant Space.

Taxes – Other ” shall mean any excise, sales, privilege or other tax, assessment or other charge (other than income taxes) imposed, assessed or levied by any governmental or quasi-governmental authority or agency upon Landlord on account of (i) the Rent (and other amounts) payable by Tenant hereunder (or any other benefit received by Landlord hereunder), including, without limitation, any gross receipts tax, license fee or excise tax levied by any governmental authority, (ii) this Lease, Landlord’s business as a lessor hereunder, and/or the possession, leasing, operation, management, maintenance, alteration, repair, use or occupancy of any portion of the Tenant Space (including, without limitation, any applicable possessory interest taxes), (iii) this transaction or any document to which Tenant is a party creating or transferring an interest or an estate in the Tenant Space, or (iv) otherwise in respect of or as a result of the agreement or relationship of Landlord and Tenant hereunder.

Tenant ” shall mean and refer to the Tenant set forth in Item 2 of the Basic Lease Information.

Tenant Affiliate ” shall mean and refer to any partnership, limited liability company, or corporation or other entity, which, directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, Tenant.

Tenant Group ” shall mean and refer to Tenant and its directors, officers, shareholders, members, employees, constituent partners, and Tenant Affiliates.

Tenant Parties ” shall mean and refer, collectively to Tenant, the other members of the Tenant Group, Tenant’s Transferees, and their respective contractors, clients, servants, representatives, licensees, Colocating Parties, agents, and invitees.

Tenant Space ” shall mean and refer to the Premises together with the Pathway.

Tenant Space Customer ” shall mean and refer to each customer or other person or entity to which Tenant, any Tenant Affiliate, any other Tenant Party, or any Transferee, provides goods or services, which are in any way related to or associated with the use of the Tenant Space, including, but not limited to, those customers, persons or entities now or hereafter conducting transactions or other operations by or through or in connection with equipment located within the Tenant Space.

Tenant’s Personal Property ” shall mean and refer, collectively, to all cable, wiring, connecting lines, and other installations, equipment or property installed or placed by, for, through, under or on behalf of Tenant or any Tenant Party anywhere in the Building and/or the Tenant Space, not including any equipment or property owned, leased or licensed by Landlord or any other member of the Landlord Group. Additionally, for the purposes of clarity, the parties acknowledge that “Tenant’s Personal Property” includes all equipment or property, other than equipment or property owned, leased or licensed by Landlord or any other member of the Landlord Group, installed and/or placed anywhere in the Building and/or the Tenant Space by any party specifically and solely in order to provide any service to Tenant or any Tenant Party (e.g., data storage/archiving and data recovery type equipment that is utilized by or for Tenant or any Tenant Party in the Tenant Space, but which is actually owned by a third party, other than Landlord or any other member of the Landlord Group).

 

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Term ”; “ Term of this Lease ”; and “ Term of the Lease ” shall mean and refer to the period described in Item 5 of the Basic Lease Information, subject to the terms of such Item 5.

Third Interruption ” shall mean and refer to the third (3 rd ) Separate/Independent Interruption of Landlord’s Essential Services occurring in any Suite in any then-current Interruption Accrual Period.

Third Party POP Room Operator ” shall mean and refer to an entity, who is not an affiliate of Landlord, with whom Landlord may hereafter contract for the operation and control of the POP Room.

Third Party Tenant ” shall mean and refer to an entity, who is not an affiliate of Landlord, with whom Landlord may hereafter contract for the operation and control of the Premises.

Transfer ” shall mean and refer to (a) a sublease of all or any part of the Tenant Space, (b) an assignment of this Lease, and/or (c) any other agreement (i) permitting a third party (other than Tenant’s employees and occasional guests) to occupy or use any portion of the Tenant Space, or (ii) otherwise assigning, transferring, licensing, mortgaging, pledging, hypothecating, encumbering, or permitting a lien to attach to its interest under, this Lease.

Transferee ” shall mean and refer to any person or entity to whom a Transfer is made or sought to be made.

Transfer Notice ” shall mean and refer to a written request for Landlord’s consent to a particular Transfer, which notice shall include (i) a statement containing: (a) the name and address of the proposed Transferee; and (b) all of the principal terms of the proposed Transfer; (ii) current, certified financial statements of the proposed Transferee, and any other information and materials reasonably required by Landlord to enable Landlord to adequately review the financial responsibility of the proposed Transferee; (iii) such other information and materials as Landlord may reasonably request (and if Landlord requests such additional information or materials, the Transfer Notice shall not be deemed to have been received until Landlord receives such additional information or materials); and (iv) the form of the proposed assignment or other Transfer documentation that will be executed by Tenant and the proposed Transferee.

Unmetered Direct Electric Loads ” shall mean and refer to electrical loads fed by way of electrical panels not exclusively serving all or any part of the Tenant Space, and shall be attributable to the Tenant Space based upon a reasonable estimate by Landlord.

UPS Plant ” shall mean and refer to an uninterruptable power supply plant.

 

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55 MIDDLESEX TURNPIKE

DATACENTER LEASE

This Datacenter Lease (this “ Lease ”) is entered into as of the Effective Date specified in Item 4 of the Basic Lease Information, by and between Landlord (as set forth in Item 1 of the Basic Lease Information, below) and Tenant (as set forth in Item 2 of the Basic Lease Information, below):

RECITALS

A. Landlord is the owner of the Land (as set forth in Item 14 of the Basic Lease Information, below). The Land is improved with, among other things, the Building (as set forth in Item 15 of the Basic Lease Information, below), which Building is owned by Landlord

B. Tenant currently has a license to occupy and use the Previous Agreement Space and the Existing Pathway under the terms of the Previous Agreement.

C. Tenant desires to (i) convert the Previous Agreement to this Lease, (ii) continue to occupy and use the Previous Agreement Space and Existing Pathways pursuant to the terms of this Lease, (iii) lease additional space in the Building, and (iv) lease certain New Pathways (as described on Exhibit “C” , attached hereto).

D. Unless otherwise specifically indicated to the contrary, all initially capitalized terms contained in this Lease shall have the meanings set forth on Schedule “1” , attached to this Lease.

NOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth, Landlord and Tenant agree as follows:

BASIC LEASE INFORMATION

 

1.       Landlord :

 

  

Digital 55 Middlesex, LLC, a Delaware limited liability company

 

2.       Tenant :

 

  

Constant Contact, Inc., a Delaware corporation

 

3.       Tenant Addresses :

  

Tenant Address for Notices:

 

Constant Contact, Inc.

1601 Trapelo Road

Waltham, MA 02451

Attn: Senior Vice President, Engineering and Operations

Phone: 781-472-8100

Email: jwalsh@constantcontact.com

 

With copies to:

 

Constant Contact, Inc.

1601 Trapelo Road

Waltham, MA 02451

Attn: General Counsel

Phone: 781-472-8100

Email: general_counsel@constantcontact.com

 

 

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And:

 

WilmerHale

60 State Street

Boston, MA 02109

Attn: Paul Jakubowski, Esq.

Phone: 617-526-6948

Email: paul.jakubowski@wilmerhale.com

 

Tenant Address for Invoice of Rent :

 

Constant Contact, Inc.

1601 Trapelo Road

Waltham, MA 02451

Attn: Accounts Payable

Phone: 781-472-8100

Email: ap@constantcontact.com

 

4.       Effective Date/

Commencement Date :

 

(a)     Effective Date :

 

(b)     Commencement Date :

 

  

January 1, 2011

 

January 1, 2011

 

5.       Term :

  

Approximately seventy-two (72) full calendar months (i.e., commencing on the Commencement Date and expiring on the last day of the seventy-second (72nd) full calendar month thereafter).

 

For the avoidance of doubt, Landlord and Tenant acknowledge and agree that, if the Commencement Date occurs on a date that is other than the first (1 st ) day of a calendar month, the Term of this Lease shall be deemed to have been automatically extended by the number of calendar days in the Partial Month, such that the Term of the Lease shall then be equal to the number of full calendar months described above, plus the number of calendar days in the Partial Month.

 

For example:

 

a. If the Commencement Date occurs on January 1, 2011 , then the seventy-two (72) full calendar month Term of this Lease would commence January 1, 2011, and expire on December 31, 2016 .

 

b. If, however, the Commencement Date occurs on January 18, 2011 , then the seventy-two (72) full calendar month Term of this Lease would commence on January 18, 2011 , and expire on January 31, 2017 . In this example, the period occurring from January 18, 2011 through January 31, 2011 is the Partial Month. The Base Rent payable by Tenant hereunder during such Partial Month shall be payable by Tenant on a pro-rated basis, in accordance with Section 3.1 of the Standard Lease Provisions, at a rate equal to the rate of Base Rent that would otherwise be due and payable by Tenant hereunder with regard to the first (1 st ) month of the Term of this Lease (pro-rated on a per diem basis). However, in this example, the first (1 st ) month of the seventy-two (72) full calendar month Term of this Lease would, for the purposes of calculating the expiration of the Term of the Lease, be deemed to be the month of February, 2011 .

 

 

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6.       Extension Options/

Extension Term :

 

  

Two (2) Extension Options, each to extend the Term for an Extension Term of sixty (60) months , subject to the terms of Section 2.3, below.

 

7.       Premises/Pathways :

 

(a)     Premises :

  

Landlord and Tenant acknowledge and agree that commencing on the Commencement Date, the Premises shall consist of the following four (4) separately demised spaces:

 

a.      Approximately 600 square feet of area in the Building, known as Suite 1.5, caged as set forth on Exhibit “A” (“ Suite 1.5 ”).

 

b.      Approximately 1800 square feet of area in the Building, known as Suite 1.5.1, caged as set forth on Exhibit “A” (“ Suite 1.5.1 ”).

 

c.      Approximately 2000 square feet of area in the Building, known as Suite 1.5.2, caged as set forth on Exhibit “A” (“ Suite 1.5.2 ”).

 

d.      Approximately 1200 square feet of area in the Building, known as Suite 1.14A, caged as set forth on Exhibit “A” (“ Suite 1.14A ”).

 

As of the Suite 1.5 Surrender Date, Suite 1.5 shall be deemed to have been removed from the Premises. From and after the Suite 1.5 Surrender Date, throughout the balance of the Term of this Lease, the Premises shall consist of Suite 1.5.1, Suite 1.5.2 and Suite 1.14A, collectively comprising approximately 5,000 square feet of area in the Building. . From and after the Suite 1.5 Surrender Date, no Base Rent shall become due or payable with respect to Suite 1.5 and all future calculations of Ancillary Utility Costs, Generator Fuel Usage or any costs to Tenant under this Lease based on a proportionate share or allocation of leased space or usage shall reflect that Suite 1.5 shall be deemed to have been removed from the Premises.

 

(b)     Pathways :

  

Each of Suite 1.5, Suite 1.5.1, Suite 1.5.2 and Suite 1.14A may be referred to herein, individually, as a “ Suite ”.

 

As described on Exhibit “C” .

 

8.       Base Rent :

  

a.       Suite 1.5 Base Rent (the “Suite 1.5 Base Rent”)

 

$33,428.11 per month for the period commencing on the Commencement Date and expiring on the last day of the twelfth (12 th ) full calendar month of the Term of the Lease.

 

(months 1 – 12 of the Term)

 

$33,828.43 per month for the period commencing on the first (1 st ) day of the thirteenth (13 th ) month of the Term and expiring on the Suite 1.5 Expiration Date.

 

(months 13-24 of the Term)

 

b.       Suite 1.5.1 Base Rent (the “Suite 1.5.1 Base Rent”)

 

$120,341.21 per month for the period commencing on the Commencement Date and expiring on the last day of the twelfth (12 th ) full calendar month of the Term of the Lease.

 

(months 1 – 12 of the Term)

 

$121,782.37 per month for months 13 – 24 of the Term.

 

 

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$46,785.69 per month for months 25 – 36 of the Term.

 

$48,189.26 per month for months 37 – 48 of the Term.

 

$49,634.94 per month for months 49 – 60 of the Term.

 

$51,123.99 per month for months 61 – 72 of the Term.

 

c. Suite 1.5.2 Base Rent (the “Suite 1.5.2 Base Rent”)

 

$61,382.68 per month for the period commencing on the Commencement Date and expiring on the last day of the twelfth (12 th ) full calendar month of the Term of the Lease.

 

(months 1 – 12 of the Term)

 

$62,917.20 per month for months 13 – 24 of the Term.

 

$64,490.00 per month for months 25 – 36 of the Term.

 

$48,189.26 per month for months 37 – 48 of the Term.

 

$49,634.94 per month for months 49 – 60 of the Term.

 

$51,123.99 per month for months 61 – 72 of the Term.

 

d. Suite 1.14A Base Rent (the “Suite 1.14A Base Rent” ; together with Suite 1.5 Base Rent, Suite 1.5.1 Base Rent and Suite 1.5.2 Base Rent, collectively, “ Base Rent ”)

 

$55,125.00 per month for the period commencing on the Commencement Date and expiring on the last day of the twelfth (12 th ) full calendar month of the Term of the Lease.

 

(months 1 – 12 of the Term)

 

$56,778.75 per month for months 13 – 24 of the Term.

 

$58,482.11 per month for months 25 – 36 of the Term.

 

$60,236.58 per month for months 37 – 48 of the Term.

 

$62,043.67 per month for months 49 – 60 of the Term.

 

$63,904.98 per month for months 61 – 72 of the Term.

 

9.       Installation Fee :

  

Tenant hereby agrees to pay Landlord, as Additional Rent, no later than thirty (30) days following receipt of an invoice therefor, the sum of all reasonable out-of-pocket amounts expended by Landlord in connection with the performance of the New Pathway-B Installation, the New Pathway-C Installation and the Card Reader Installation (the “ Installation Fee ”) which invoice shall be delivered following completion of the New Pathway-B Installation, the New Pathway-C Installation and the Card Reader Installation.

 

10.     Prepaid Rent :

   $270,277.00 (being the first (1 st ) month’s Base Rent). Such Prepaid Rent shall be applied to the Base Rent due in month 1 of the Term of this Lease.

 

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11.     Landlord’s Address for Notices :

  

Digital 55 Middlesex, LLC

c/o Digital Realty Trust, L.P.

451 D Street, Suite 912

Boston, MA 02210

Attention: Asset Manager

Facsimile No. (857) 366-9998

E-mail: leaseadministration@digitalrealtytrust.com

 

  

With a copy to:

 

Stutzman, Bromberg, Esserman & Plifka, A Professional Corporation

2323 Bryan Street, Suite 2200

Dallas, TX 75201

Attention: Noah K. Hansford

Facsimile No. (214) 969-4999

E-mail: hansford@sbep-law.com

 

12.     Landlord’s Address for Payment of Rent :

  

ACH Payments :

 

    
     Bank:    Bank of America NT&SA
        1850 Gateway Blvd.
        Concord, CA 94520-3282
     
     Routing Number:    121000358
     Account Number:    1459370718
     Account Name:    Digital 55 Middlesex, LLC
     Regarding/Reference:    Tenant Account No., Invoice No.
     
     Wire Payments :     
     
     Bank:    Bank of America NT&SA
        100 West 33 rd Street
        New York, NY 10001
     
     Routing Number:    026009593
     Account Number:    1459370718
     Account Name:    Digital 55 Middlesex, LLC
     
     Regarding/Reference:    Tenant Account No., Invoice No.
     
     Check Payments :     
     
     Payee:    Digital 55 Middlesex, LLC
     
     Mailing Address:     
   
     Digital 55 Middlesex, LLC
     P.O. Box 415882     
     Boston, MA. 02241-5882     
     
     Overnight Address:     
   
     Bank of America Lockbox Services
     Digital 55 Middlesex, LLC – 415882
     MA5-527-02-07     
     2 Morrissey Blvd.     
     Dorchester, MA. 02125     

 

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     Contact Information :
    

 

Director of Cash Management

Digital Realty Trust

560 Mission Street, Suite 2900

San Francisco, CA 94105

P: (415) 738-6509

F: (415) 495-3687

 

13.    Brokers:

    
   

(a)     Landlord’s Broker :

   None.
   

(b)     Tenant’s Broker :

 

  

RampRate Sourcing Advisors, Inc.

 

14.     Land :

  

The Land located at:

 

55 Middlesex Turnpike, Bedford, Massachusetts

 

15.     Building :

  

55 Middlesex Turnpike: A one (1)-story building consisting of approximately 106,000 square feet.

 

16.     POP Rooms :

  

Suite 202 located on the first (1st) floor of the Building (the “ East POP Room ”) and Suite 204 located on the first (1st) floor of the Building (the “ West POP Room ”; together with the East POP Room, collectively, the “ POP Rooms ”).

 

17.     Storage and Receiving :

  

As it relates to Tenant’s Personal Property that is delivered to the Building from time to time, Landlord agrees, upon twenty-four (24) hours’ prior notice from Tenant, but subject to reasonable availability of the space, to permit items of Tenant’s Personal Property to be stored temporarily (i.e., for no more than seventy-two (72) hours per delivery) on a non-exclusive basis in locked storage space in the loading area of the Building. Such shipments shall be accepted by Landlord and stored in such locked space until such time as Tenant takes delivery of said shipment. The foregoing notwithstanding, nothing contained in this Item 17 shall be deemed to waive or modify the terms of the Standard Lease Provisions, below (including, but not limited to, Sections 9.2, 14.1.1 and 14.2.1).

 

18.     Intentionally Deleted :

 

  

Intentionally Deleted

 

19.     Maximum Structural Load :

   250 pounds of live load per square foot.

This Lease shall consist of the foregoing Basic Lease Information, the provisions of the Standard Lease Provisions, below, Schedule “1” , above, and Exhibits A ” through “ K ”, inclusive, all of which are incorporated herein by this reference as of the Effective Date. In the event of any conflict between the provisions of the Basic Lease Information and the provisions of the Standard Lease Provisions, the Basic Lease Information shall control.

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STANDARD LEASE PROVISIONS

 

1. LEASE OF TENANT SPACE .

1.1 Tenant Space . In consideration of the covenants and agreements to be performed by Tenant, and upon and subject to the terms and conditions of this Lease, Landlord hereby leases to Tenant for the Term, (i) the Premises; and (ii) the Pathways.

1.2 Condition of Tenant Space . Tenant has inspected the Tenant Space and accepts the Tenant Space in its “AS IS, WHERE IS” condition. Tenant acknowledges and agrees that (i) except as specifically set forth herein, no representation or warranty (express or implied) has been made by Landlord as to the condition of the Property, the Building or the Tenant Space or their suitability or fitness for the conduct of the Permitted Use, its business or for any other purpose, and (ii) except as specifically set forth herein, Landlord shall have no obligation to construct or install any improvements in or to make any other alterations or modifications to the Property, Building or the Tenant Space.

1.3 Datacenter Connection Area . Tenant acknowledges and agrees that all interconnections between the systems of Tenant and those of other tenants of the Building, and all cross-connects between the systems of Tenant and those of carriers in the Building, must be made in the POP Room. Tenant acknowledges that the Datacenter Connection Area is a Common Area that will be used by and be accessible by other tenants and their technicians. Anything to the contrary contained in this Lease notwithstanding, Tenant acknowledges that the POP Rooms may hereafter be operated by a Third Party POP Room Operator. In such event, all operations in the POP Rooms (including all MMR Services), and all Tenant presences in the POP Room, including pathways, may be governed and controlled by the Third Party POP Room Operator; each and all of which shall be subject to the terms of this Lease and such agreements and costs as are mutually agreed in writing, by and between Tenant and the Third Party POP Room Operator.

1.4 Relocation Right . Intentionally Deleted.

1.5 Quiet Enjoyment; Access . Subject to all of the terms and conditions of this Lease, Tenant shall quietly have, hold and enjoy the Tenant Space in conformity with the Permitted Use without hindrance from Landlord or any person or entity claiming by, through or under Landlord. Subject to the terms and conditions of this Lease, including, without limitation, the Datacenter Rules and Regulations and Landlord’s Access Control Systems and Force Majeure, Tenant shall have access to the Tenant Space twenty-four (24) hours per day, seven (7) days per week.

1.6 Common Area . The Common Area shall be subject to Landlord’s sole management and control and shall be operated and maintained in such manner as Landlord in Landlord’s discretion shall determine, subject to the rights of Tenant under this Lease and provided that Landlord will not take any actions with respect to such Common Area that will unreasonably interfere with Tenant’s access to the Tenant Space or the use of the Tenant Space for the Permitted Use. Tenant, and the other Tenant Parties, shall have the nonexclusive right to use the Common Area as constituted from time to time; such use to be in common with Landlord, the other members of the Landlord Group, other tenants of the Building and other persons entitled to use the same, and subject to such reasonable rules and regulations governing use of the Common Areas as Landlord may from time to time prescribe provided that written notice of such rules and regulations is provided to Tenant. Landlord may temporarily close any part of the Common Area for such periods of time as may be necessary to prevent the public from obtaining prescriptive rights or to make repairs or alterations.

 

2. TERM .

2.1 Term . The term of this Lease, and Tenant’s obligation to pay Rent under this Lease, shall commence on the Commencement Date and shall continue in effect for the Term of the Lease, as the same may be extended, or earlier terminated, in accordance with the express terms of this Lease.

 

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2.2 Delivery of Tenant Space . Landlord and Tenant acknowledge and agree that, by virtue of the occurrence of the Commencement Date, Landlord shall be deemed to have delivered the Tenant Space to Tenant, and Tenant shall be deemed to have accepted the same.

2.2.1 Completion of the New Pathway Installation . Landlord agrees to use commercially reasonable efforts to cause the New Pathway Installation to be completed prior to the Commencement Date. In the event that the New Pathway Installation is not completed on or prior the Deadline Date, Tenant shall receive, as Tenant’s sole remedy therefor, one-quarter (1/4) day’s abatement of Base Rent for each day following the Deadline Date until the New Pathway Completion Date occurs. The foregoing notwithstanding, Landlord and Tenant acknowledge and agree that Landlord’s completion of the New Pathway Installation is not a condition precedent to any obligation of Tenant to pay Rent, nor is such completion a condition precedent to the occurrence of the Commencement Date. Additionally, provided that Landlord is working diligently using commercially reasonable efforts after the Commencement Date to complete the New Pathway Installation, Landlord shall not be in default of its obligation to complete the New Pathway Installation. Landlord agrees to deliver the New Pathway Completion Notice to Tenant upon Landlord’s completion of the New Pathway Installation.

2.2.2 Completion of the Card Reader Installation . Landlord agrees to use commercially reasonable efforts to cause the Card Reader Installation to be completed prior to the Commencement Date. The foregoing notwithstanding, Landlord and Tenant acknowledge and agree that Landlord’s completion of the Card Reader Installation is not a condition precedent to any obligation of Tenant to pay Rent, nor is such completion a condition precedent to the occurrence of the Commencement Date. Additionally, provided that Landlord is working diligently using commercially reasonable efforts after the Commencement Date to complete the Card Reader Installation, Landlord shall not be in default of its obligation to complete the Card Reader Installation. Landlord agrees to deliver the Card Reader Completion Notice to Tenant upon Landlord’s completion of the Card Reader Installation.

2.3 Extension Options .

2.3.1 Subject to and in accordance with the terms and conditions of this Section 2.3, Tenant shall have the number of Extension Options specified in Item 6 of the Basic Lease Information to extend the Term of this Lease, for the respective Extension Terms specified in such Item 6, upon the same terms, conditions and provisions applicable to the then-current Term of this Lease (except as provided otherwise herein). The monthly Extension Term Base Rent payable with respect to the Tenant Space for each year of the Extension Term shall be increased hereunder as of the first (1 st ) day of each such year to be equal to one hundred three percent (103%) of the Base Rent payable for the immediately preceding month of the Term of the Lease, as extended.

2.3.2 Tenant may exercise each Extension Option only by delivering an Extension Option Exercise Notice to Landlord at least six (6) calendar months prior to the then applicable expiration date of the Term, specifying that Tenant is irrevocably exercising its Extension Option so as to extend the Term of this Lease by an Extension Term on the terms set forth in this Section 2.3. In the event that Tenant shall duly exercise an Extension Option, the Term shall be extended to include the applicable Extension Term (and all references to the Term in this Lease shall be deemed to refer to the Term specified in Item 5 of the Basic Lease Information, plus all duly exercised Extension Terms). In the event that Tenant shall fail to deliver an Extension Option Exercise Notice within the applicable time period specified herein for the delivery thereof, time being of the essence, at the election of Landlord, Tenant shall be deemed to have forever waived and relinquished such Extension Option, and any other options or rights to renew or extend the Term effective after the then applicable expiration date of the Term shall terminate and shall be of no further force or effect.

2.3.3 Tenant shall have the right to exercise any Extension Option only with respect to the entire Tenant Space leased by Tenant at the time that Tenant delivers the applicable Extension Option Exercise Notice. If Tenant duly exercises an Extension Option, Landlord and Tenant shall execute an amendment reflecting such exercise. Notwithstanding anything to the contrary herein, any attempted exercise by Tenant of an Extension Option shall, at the election of Landlord, be invalid, ineffective, and of no force or effect if, on the date on which Tenant delivers an Extension Option Exercise Notice, or on the date on which the Extension Term is scheduled to commence, there shall be an uncured Event of Default by Tenant under this Lease.

 

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3. BASE RENT AND OTHER CHARGES .

3.1 Base Rent . Tenant shall pay Base Rent to Landlord throughout the Term of this Lease. All Base Rent shall be paid to Landlord in monthly installments in advance on the first day of each and every calendar month throughout the Term of this Lease; provided, however, that (a) the installment of Base Rent for the first (1 st ) full calendar month of the Term shall be payable upon Tenant’s execution of this Lease; and (b) if the Term of this Lease does not commence on the first day of a calendar month, the Base Rent for the Partial Month shall (i) be calculated on a per diem basis determined by dividing the Base Rent above by the total number of calendar days in such Partial Month and multiplying such amount by the number of days remaining in such Partial Month from and after (and including) the Commencement Date, and (ii) be paid by Tenant to Landlord on the Commencement Date. Except as set forth in this Section 3.1, Tenant shall not pay any installment of Rent more than one (1) month in advance.

3.2 Installation Fee . Tenant shall pay the Installation Fee to Landlord, no later than the thirtieth (30 th ) day following receipt of an invoice therefor. Landlord and Tenant acknowledge that the Installation Fee represents remuneration to Landlord in consideration of the costs incurred by Landlord in connection with the New Pathway-B Installation and the New Pathway-C Installation and otherwise in connection with Landlord’s fixturization of the Tenant Space related to this Lease.

3.3 Payments Generally . Base Rent payable hereunder by Tenant (i) shall be payable to Landlord when due, without any prior notice or demand therefor, in lawful money of the United States without any abatement, offset or deduction whatsoever (except as specifically provided otherwise herein), and (ii) shall be payable to Landlord at the address of Landlord specified in Item 12 of the Basic Lease Information (or to such other person or to such other place as Landlord may from time to time designate in writing to Tenant). All forms of Additional Rent payable hereunder by Tenant (aa) shall be payable to Landlord within thirty (30) days after Tenant’s receipt of an invoice for same, without any other notice or demand therefor, in lawful money of the United States without any abatement, offset or deduction whatsoever (except as specifically provided otherwise herein), and (bb) shall be payable to Landlord at the address of Landlord specified in Item 12 of the Basic Lease Information (or to such other person or to such other place as Landlord may from time to time designate in writing to Tenant). No receipt of money by Landlord from Tenant after the termination of this Lease, the service of any notice, the commencement of any suit, or a final judgment for possession shall reinstate, continue or extend the Term of this Lease or affect any such notice, demand, suit or judgment. No partial payment by Tenant shall be deemed to be other than on account of the full amount otherwise due, nor shall any endorsement or statement on any check or any letter accompanying any check or payment be deemed an accord and satisfaction, and Landlord shall be entitled to accept such payment without compromise or prejudice to any of the rights of Landlord hereunder or under any Applicable Laws. In the event that the Commencement Date or the expiration of the Term (or the date of any earlier termination of this Lease) falls on a date other than the first or last day of a calendar month, respectively, the Rent payable for such partial calendar month shall be prorated based on a per diem basis.

3.3.1 Landlord acknowledges and agrees that the Base Rent payable to Landlord under this Lease is on a “gross” basis except as otherwise expressly set forth herein, in consideration for all costs as may be incurred by Landlord for the operation, maintenance, management, insurance and repair of the Premises, Building and Property and the real estate taxes thereon. Except as otherwise expressly provided in this Lease, Tenant shall not be responsible for payment of any of Landlord’s costs or expenses in connection with the Tenant Space, Building and Property.

3.4 Late Payments . As it relates to any Late Payment, Tenant shall, in addition to Tenant’s obligation to pay the Late Payment to Landlord, also be required to pay to Landlord, as Additional Rent, (i) a Late Charge, and (ii) Late Payment Interest from the Delinquency Date until the date the foregoing are paid, collectively, to cover Landlord’s additional administrative costs and damages related to such Late Payment, which are difficult, if not impossible, to determine. In no event, however, shall the charges permitted under this Section 3.4, or elsewhere in this Lease, to the extent the same are considered to be interest under Applicable Law, exceed the maximum lawful rate of interest. Landlord’s acceptance of any Late Charge, or any Late Payment Interest, shall not be deemed to constitute a waiver of Tenant’s default with respect to the Late Payment, nor prevent Landlord from exercising any of the other rights and remedies available to Landlord hereunder or under any Applicable Laws.

 

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3.5 Utilities . Tenant shall be billed directly by Landlord as Additional Rent for the costs of Aggregate Direct Electric Loads in a manner consistent in all material respects with the then manner of billing for electrical service provided by the local electric utility company and in accordance with the then applicable pricing structures and rate schedules as filed by such utility with the applicable governmental authority from time to time.

3.5.1 Notwithstanding the foregoing, if the Metering Equipment – Tenant Space in installed in such a manner so as to not capture Systems Efficiency Losses, Landlord shall have a right to add an amount reasonably determined by landlord to Tenant’s Aggregate Direct Electric Loads sufficient to compensate Landlord for actual System Efficiency Losses attributable to Tenant’s Aggregate Direct Electric Loads.

3.5.2 Tenant shall pay a proportionate share of all Ancillary Utility Costs, which proportionate share shall be a fraction expressed as a percentage, the numerator of which shall be Tenant’s Aggregate Direct Electric Loads and the denominator of which shall be the sum of the Aggregate Direct Electric Loads for all of the tenants then operating in the Building.

3.5.3 Notwithstanding the foregoing, if Landlord reasonably determines that the method of calculating Aggregate Direct Electric Loads, System Efficiency Losses and/or Ancillary Utility Costs is inadequate to capture the costs related to same that should otherwise be attributable to the Tenant Space, Landlord and Tenant shall mutually agree on a different formula/calculation, as necessary, to appropriately capture such costs. Additionally, in the event that Landlord determines that it is no longer commercially impractical to separately meter some or all of Unmetered Direct Electric Loads, System Efficiency Losses and/or Ancillary Utility Costs, then Landlord may cause the equipment related to the foregoing to be separately metered to the Tenant Space at Landlord’s sole cost and expense. In either event, Landlord and Tenant shall execute an amendment to this Lease reflecting such modification. For the avoidance of doubt, it is the intent of the parties that this Section 3.5 represents a mechanism only for Landlord’s cost recovery with regard to utilities (including electrical power) serving, provided to and/or used in or for the Tenant Space, and that there is no intent for Tenant’s Utility Payment to include any element of profit to Landlord in connection therewith.

3.5.4 Generator Fuel Usage . Additionally, and except to the extent that Generator Fuel Usage represents Maintenance Fuel Usage, Tenant shall pay its proportionate share of the cost of all Generator Fuel, which proportionate share shall be a fraction expressed as a percentage, the numerator of which shall be Tenant’s Aggregate Direct Electric Loads and the denominator of which shall be the sum of the Aggregate Direct Electric Loads for all of the tenant then operating in the Building. Landlord shall bill Tenant not more frequently than monthly for the amount of the Generator Fuel Payment. Tenant shall pay the Generator Fuel Payment to Landlord, as Additional Rent, within thirty (30) days of delivery of each Generator Fuel Payment invoice. For the avoidance of doubt, it is the intent of the parties that this Section 3.5.4 represents a mechanism only for Landlord’s cost recovery with regard to non-maintenance related Generator Fuel Usage, and that there is no intent for Tenant’s Generator Fuel Payment to include any element of profit to Landlord in connection therewith.

3.5.5 Tenant’s Additional Rent Audit Right. Landlord shall keep complete books and records regarding all Additional Rent charges made by Landlord hereunder. All such records pertaining to a particular calendar year shall be retained for at least one (1) full calendar year after the expiration of such particular calendar year (i.e., all such records pertaining to the calendar year 2012 shall be retained at least until the end of the calendar 2013). Tenant shall have the right, once per twelve (12) month period during the Term, to audit the applicable Additional Rent records of Landlord to confirm that the Additional Rent charges billed to Tenant conform to the provisions of this Lease. Such right, as it relates to any calendar year, shall be exercisable by Tenant within one (1) year after the expiration of such calendar year. Landlord shall cooperate with Tenant during each such audit in providing Tenant reasonable access to Landlord’s books and records for the calculation of such items of Additional Rent during normal business hours to enable Tenant to audit such books and records. If the audit discloses any overpayment on the part of Tenant, then Tenant shall be entitled to a credit on the next succeeding installment of Additional Rent, following Landlord’s confirmation of the correctness of such audit conclusions, for an amount equal to the overcharge, and such credit shall be extended to succeeding installments of Additional Rent in the event such overcharge exceeds the amount of the next succeeding such installment. In the event the Term of this Lease has expired or been earlier terminated, then Tenant shall be entitled to a refund of such excess from Landlord within thirty (30) days after Landlord’s confirmation of the correctness of such audit conclusions. In

 

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addition, in the event such audit by Tenant discloses such an overcharge in excess of ten percent (10%) of the amount payable pursuant to this Lease, then Landlord shall pay to Tenant the reasonable costs and expenses of such audit, not to exceed Five Thousand and No/100 Dollars ($5,000.00) for any particular audit.

 

4. TAXES .

4.1 Taxes – Equipment . Tenant shall be liable for and shall pay before delinquency all Taxes – Equipment. If any such Taxes - Equipment are levied or assessed against Landlord or the Property, and if Landlord elects to pay the same, Tenant shall pay to Landlord as Additional Rent, within thirty (30) days of Landlord’s demand therefor, that part of such Taxes – Equipment for which Tenant is liable hereunder. In the event that Tenant desires to contest such Taxes – Equipment, Landlord agrees to reasonably cooperate with Tenant in connection therewith at Tenant’s cost.

4.2 Taxes – Other . Tenant shall pay to Landlord, as Additional Rent and within thirty (30) days of Landlord’s demand therefor, and in such manner and at such times as Landlord shall direct from time to time by written notice to Tenant all Taxes – Other.

4.2.1 Landlord represents and warrants that, to the best of Landlord’s Actual Knowledge, (a) no Taxes-Other are due or payable with regard to this Lease as of the Effective Date of this Lease; and (b) no Taxes-Other will be due or payable with regard to this Lease with regard to the calendar year in which the Effective Date occurs.

 

5. INTENTIONALLY DELETED .

 

6. PERMITTED USE; COMPLIANCE WITH RULES AND LAWS; HAZARDOUS MATERIALS .

6.1 Permitted Use . Tenant shall use the Tenant Space only for the Permitted Use. Any other use of the Tenant Space is subject to Landlord’s prior written consent, which consent may be withheld or conditioned in Landlord’s sole and absolute discretion.

6.1.1 Limitations on Permitted Use . Tenant agrees that neither Tenant, nor any other Tenant Party, may use the Tenant Space, or operate within the Tenant Space and/or the Building, in any manner, which: (i) causes or is reasonably likely to cause damage to the Property, the Building, the Tenant Space or any Building System; (ii) will invalidate or otherwise violate a requirement or condition of any fire, extended coverage or any other insurance policy covering the Property, the Building, and/or the Tenant Space, or the property located therein, or will increase the cost of any of the same; (iii) constitutes a nuisance and/or otherwise unreasonably and materially interferes with other tenants’ or occupants’ use of space in the Building or otherwise at the Property, and/or any equipment, facilities or systems of any such tenant or occupant; (iv) unreasonably and materially interferes with the transmission or reception of microwave, television, radio, telephone, or other communication signals by antennas or other facilities located at the Property. Additionally, and notwithstanding anything to the contrary contained in this Section 6.1, Tenant agrees that neither Tenant, nor any other Tenant Party, may (a) operate a meet-me room in the Tenant Space or any other portion of the Building, (b) provide MMR Services in the Tenant Space or any other portion of the Building, or (c) refer to the Tenant Space as a “meet-me room”. Tenant agrees to reimburse Landlord for any losses, costs or damages caused by unauthorized parties who gain access to the Tenant Space or the Building through access cards, keys or other access devices provided to Tenant (or any other Tenant Party) by Landlord. Tenant agrees to reimburse Landlord, as Additional Rent, for any additional insurance premium charged by Landlord’s insurance carrier for any insurance policy by reason of Tenant’s failure to comply with the provisions of this Section 6.1.1.

6.2 Datacenter Rules and Regulations . Tenant’s Permitted Use shall be subject to, and Tenant, and all other Tenant Parties, shall comply fully with the Datacenter Rules and Regulations. Landlord shall have the right, from time-to-time, to change, amend and/or supplement the Datacenter Rules and Regulations as may be deemed by Landlord, in the exercise of its sole but good faith discretion, advisable for the safety, care and/or cleanliness of the Tenant Space, the Building and/or the Property, and/or for the preservation of good order in any of same; provided, however, that such changes to the Datacenter Rules and Regulations may not increase Tenant’s monetary obligations under this Lease or unreasonably interfere with Tenant’s Permitted Use of the Tenant Space.

 

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In the event of a conflict between the Datacenter Rules and Regulations and the terms of this Lease, the terms of this Lease shall govern. Tenant shall be responsible for causing the other Tenant Parties to comply with the Datacenter Rules and Regulations. Landlord shall notify Tenant in writing when changes are made to Datacenter Rules and Regulations.

6.3 Compliance with Laws; Hazardous Materials .

6.3.1 Compliance with Laws . Tenant, at Tenant’s sole cost and expense, shall timely take all action required to cause all Alterations and Tenant’s (and all other Tenant Parties’) use of the Tenant Space to comply at all times during the Term of this Lease in all respects with all Applicable Laws; provided, however, that in no event shall Tenant be obligated to make improvements of a capital nature to the Premises, Building or Property except to correct work performed by Tenant or its contractors.

6.3.1.1 Landlord represents and warrants to Tenant that, as of the Effective Date (a) to the best of Landlord’s Actual Knowledge, the Building and the Premises are in material compliance with all Applicable Laws, including the requirements of all easement and encumbrance documents; (b) the Permitted Use of the Premises are permitted at the Property; (c) Landlord holds fee simple title to the Property, subject to all matters of record, and (as of the Effective Date) subject to no mortgage; (d) Landlord has full power and authority to enter into this Lease and has obtained all consents and taken all actions necessary to enable Landlord to do so; and (e) to the best of Landlord’s Actual Knowledge, no other party has any possessory right to the Premises or has claimed the same.

6.3.1.2 Except for the extent of Tenant’s obligations with regard to compliance with Applicable Laws set forth in Section 6.3.1, above, Landlord covenants to timely take all action required to cause the Building and the Premises to be in material compliance with all Applicable Laws, including the requirements of all applicable easement and encumbrance documents throughout the Term.

6.3.2 Hazardous Materials . Tenant agrees that neither Tenant, nor any other Tenant Party, shall Handle any Hazardous Materials in the Tenant Space or any portion of the Building or the Property. Additionally, Tenant agrees that neither Tenant, nor any other Tenant Party, shall use the Tenant Space in any manner which may directly or indirectly lead to any non-compliance with any Environmental Law.

6.3.2.1 Landlord hereby represents and warrants to Tenant that, to the best of Landlord’s Actual Knowledge, as of the Effective Date, (a) neither the Property, nor the Building nor the Tenant Space contain any Hazardous Materials, other than those amounts and types of Hazardous Materials (e.g., the battery acid contained within the Building’s batteries) that are utilized in the ordinary course of operating the Building, (b) neither the Property, nor the Building nor the Tenant Space contain Hazardous Materials at levels or in conditions that are in violation of applicable Environmental Laws, (c) no underground storage tanks are located on the Property, (d) no Claims or actions of any sort have been brought against Landlord concerning Hazardous Materials on the Property, and (e) no investigations have been initiated against Landlord concerning Hazardous Materials on the Property.

6.3.2.2 Landlord shall indemnify, defend upon demand with counsel reasonably acceptable to Tenant and hold Tenant harmless from and against, any liabilities, losses, claims, demands, interest, penalties, fines, attorneys’ fees, experts’ fees, court costs, remediation costs, and other expenses actually incurred by Tenant as a result of the presence of any Hazardous Materials in, on, about, under or emanating from the Premises or Property as of the Effective Date of this Lease.

6.4 Electricity Consumption Threshold . Tenant’s actual electricity consumption for the Premises, as reasonably determined by Landlord pursuant to such measurement method or methods as Landlord shall employ from time to time (including, without limitation, the use of sub-meters and/or pulse meters, electrical surveys and/or engineer’s estimates), shall not at any time, exceed the Electricity Consumption Threshold for the respective Suite. The power drawn by all of Tenant’s Personal Property located in a Suite shall be included in the calculation of Tenant’s actual electricity consumption for such Suite. In the event that an ECT Overage occurs, Tenant agrees to take immediate action to cause power consumption in each Suite to be at or below the Electricity Consumption Threshold for the respective Suite.

 

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6.5 Maximum Structural Load . Tenant shall not place a load upon the Premises or the Building exceeding the Maximum Structural Load.

 

7. ACCESS CONTROL; LANDLORD’S ESSENTIAL SERVICES; INTERRUPTION OF SERVICES .

7.1 Access Control . Landlord will provide Landlord’s Access Control Systems during the Term of this Lease. Landlord reserves the right, but without assuming any duty, to institute additional access control measures in order to further control and regulate access to the Building or any part thereof. Landlord shall not, under any circumstances, be responsible for providing or supplying security services to the Tenant Space or any part of the Building in excess of the Landlord’s Access Control Systems (and, unless expressly agreed in writing by Landlord, Landlord shall not under any circumstances be deemed to have agreed to provide any access control services in excess of the above specified Landlord’s Access Control Systems). Tenant acknowledges and agrees that the activities of all persons in the Building are and shall be subject to surveillance by video camera and/or otherwise by Landlord’s agents and employees.

7.1.1 In connection with Landlord’s Access Control Systems, Landlord agrees to maintain an authorized “access list” for the Tenant. Landlord agrees to use commercially reasonable efforts to perform “adds to” and “removals from” such authorized “access list” within one (1) hour after receiving any written notice of such request that is provided between the hours of 8:00 am and 5:00 pm on business days.

7.1.2 Landlord agrees (a) to retain the recordings of the Common Area’s video surveillance system for at least a rolling period of thirty (30) consecutive days, and (b) to provide Tenant access to such recordings within a reasonable period (being no more than 2 business days) following Landlord’s receipt of written request for access to same.

7.2 Landlord’s Essential Services . Landlord’s agreement to provide Landlord’s Essential Services and Tenant’s remedies for Interruptions of Landlord’s Essential Services, are described on Exhibit “F” , attached hereto.

7.3 Interruption of Services . Landlord shall not be liable or responsible to Tenant for any loss, damage or expense of any type which Tenant may sustain or incur if the quantity or character of the utility-provided electric service is changed, is no longer available, or is no longer suitable for Tenant’s requirements, except as expressly set forth on Exhibit “F”, attached hereto, with regard to Interruptions of Landlord’s Essential Services. Additionally, except as expressly set forth on Exhibit “F”, attached hereto, with regard to Interruptions of Landlord’s Essential Services , no interruption or malfunction of any electrical or other service to the Premises, or to any other portion of the Building or Property, shall, in any event, (i) constitute an eviction or disturbance of Tenant’s use and possession of the Tenant Space, (ii) constitute a breach by Landlord of any of Landlord’s obligations under this Lease, (iii) render Landlord liable for damages of any type or entitle Tenant to be relieved from any of Tenant’s obligations under this Lease (including the obligation to pay Base Rent, Additional Rent, or other charges), (iv) grant Tenant any right of setoff or recoupment, (v) provide Tenant with any right to terminate this Lease, or (vi) make Landlord liable for any injury to or interference with Tenant’s business or any punitive, incidental or Consequential Damages, whether foreseeable or not, whether arising from or relating to the making of or failure to make any repairs, alterations or improvements, or whether arising from or related to the provision of or failure to provide for or to restore any service in or to any portion of the Property or the Building . In the event of the interruption of any such service, however, Landlord shall employ commercially reasonable efforts to restore such service or cause the same to be restored in any circumstances in which such restoration is within the reasonable control of Landlord.

7.4 SAS-70 Reporting. Landlord agrees to reasonably cooperate with Tenant, at no cost to Tenant, in regards to Tenant’s conduct of any audit of (a) Tenant’s operations in the Tenant Space and/or (b) the maintenance and operation of the Building, performed in accordance Statement on Auditing Standards Number 70, as promulgated by the American Institute of Certified Public Accountants (a “ SAS 70 Audit ”), or similar regulations, including by providing reasonable access to Landlord’s records with respect to the maintenance and operation of the Building. Additionally, in the event that Landlord causes a SAS 70 Audit to be performed with regard to (a) or (b), above, during the Term of the Lease, Landlord agrees to provide Tenant (within thirty (30) days after Landlord’s receipt of same) a copy of the final report that Landlord receives as a result of each such SAS 70 Audit, except that

 

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Landlord shall be permitted to redact from each such report any information that relates to (i) any premises in the Building other than the Premises; and/or (ii) any tenant in the Building other than Tenant. Upon request, but no more than one time per calendar year, in the event Landlord completes a SAS 70 Audit as described above, Tenant may request that Landlord provide a letter (in a form reasonably acceptable to Landlord) addressed to Tenant that provides assurances as to whether there have been any changes in the internal control environment since the date of the last SAS 70 Audit

7.5 Self-Help Restriction . Landlord and Tenant acknowledge and agree that, due to the “shared” nature of the Building and the electrical and mechanical infrastructure serving same, Tenant shall not have the right to perform any of Landlord’s maintenance and/or repair obligations under Section 8.1, below (such a right is referred to herein as a “ Self-Help Right ”).

 

8. MAINTENANCE; ALTERATIONS; REMOVAL OF TENANT’S PERSONAL PROPERTY .

8.1 Landlord’s Maintenance . Except as expressly provided in this Section 8.1, Landlord shall have no obligation to repair and/or maintain the Tenant Space. Landlord will maintain and keep in good repair at Landlord’s sole cost and expense the Pathway, the PDUs serving the Premises, Landlord’s Access Control Systems, the HVAC system and plumbing, if any, serving the Premises, the UPS Plant serving the Premises, the Back-Up Power, the fire suppression systems serving the Premises, the Common Area cable management systems (comprised of ladder racks, fiber trays, under-floor cable trays and other similar equipment located within the Common Areas that are installed for the benefit of all tenants of the Building), the floors and foundation of the Building, the exterior walls and windows of the Building, the roof of the Building, the Common Areas, and the Common Area HVAC system within the Building.

8.1.1 PM Standards . Tenant acknowledges that Landlord’s PM Standards shall be updated on at least an annual basis. Landlord shall provide Tenant with Landlord’s PM Schedule as far in advance as is reasonably practicable. Landlord agrees to perform the PM Activities and to substantially adhere to the then current PM Schedule in connection with such performance.

8.1.2 Tenant’s PM Audit . During the Term, Tenant shall have the right, once per rolling six (6) month period, to perform a PM Audit. Tenant shall exercise the foregoing right by delivering its PM Audit Notice to Landlord no less than thirty (30) days before the date upon which Tenant desires to perform its PM Audit. The PM Audit Notice must detail the equipment for which Tenant wishes to inspect the PM Books and Records. Any such PM Audit shall be performed during Landlord’s normal business hours at a time and location within the Building reasonably designated by Landlord. Landlord shall respond to Tenant’s PM Audit Notice within five (5) business days after Landlord’s receipt of Tenant’s PM Audit Notice with the date, time and location of Tenant’s PM Audit. If Tenant’s PM Audit reveals that Landlord is delinquent in complying with the PM Schedule, Tenant shall deliver written notice to Landlord of such delinquency, and Landlord shall cure such delinquency within the time allowed pursuant to Section 16.1.1 of this Lease.

8.2 Tenant’s Maintenance . During the Term of this Lease, Tenant shall, at Tenant’s sole cost and expense, maintain the Tenant Space and Tenant’s equipment therein in good order and in a clean and safe condition. If Tenant fails to perform its covenants of maintenance and repair hereunder, or if Tenant or any of Tenant’s technicians or representatives physically damages the Property, the Building or any portion of any of the above, or the personal property of any other tenant or occupant, or causes an interruption of services to the Premises and/or in the Building, Landlord may, but shall not be obligated to, perform all necessary or appropriate maintenance and repair, and any amounts expended by Landlord in connection therewith, plus an administrative charge of ten percent (10%) of such amounts, shall be reimbursed by Tenant to Landlord as Additional Rent within thirty (30) days after Landlord’s demand therefor.

8.3 Alterations .

8.3.1 Notwithstanding any provision in this Lease to the contrary, Tenant shall not make or cause to be made any Alterations to the Tenant Space or any other portion of the Building or Property without the prior written consent and approval of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. The foregoing notwithstanding, Landlord’s consent shall not be required for any usual and customary installations, repairs, maintenance, and removals of electrical distribution equipment downstream of the PDUs in the

 

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Premises, equipment and telecommunication cables within the Tenant Space if and to the extent that such installations, repairs, maintenance, and removals (i) are usual and customary within the industry, (ii) are in compliance with the Datacenter Rules and Regulations, and (iii) will not adversely affect the Building’s structure, the provision of services to other Building tenants, or the Building’s electrical, plumbing, HVAC, life safety or mechanical systems. Landlord and Tenant acknowledge and agree that (a) Landlord’s Installations are hereby deemed to be Alterations hereunder; and (b) all Landlord’s Installations shall be left as part of the Tenant Space, upon the expiration or earlier termination of this Lease, in good and operable condition, ordinary wear and tear and damage by fire or other casualty excepted.

8.3.2 Each request for Alterations consent must contain one (1) full size hard copy of all drawings together with one (1) full set of drawings on CD.

8.3.3 In any instance where Tenant desires to conduct Alterations, Tenant’s contractors, laborers, material men and others furnishing labor or materials for Tenant’s job must work in harmony, and not interfere, with any labor utilized by Landlord, Landlord’s contractors or mechanics or by any other tenant or such other tenant’s contractors or mechanics; and if at any time such entry by one (1) or more persons furnishing labor or materials for Tenant’s work shall cause disharmony or interference for any reason whatsoever without regard to fault, the consent granted by Landlord to Tenant and/or the express or implied permission for such persons to enter the Premises may be withdrawn at any time upon written notice to Tenant. Additionally, all such contractors, laborers, material men and others must obtain (and provide Landlord evidence of) such insurance as Landlord may reasonably require, prior to any such entry; provided that, in no event shall such insurance requirements exceed those that are described on Exhibit “B-1” , attached hereto.

8.4 Removal of Tenant’s Personal Property . Tenant agrees that, upon the expiration or earlier termination of this Lease, Tenant shall at Tenant’s sole cost and expense, promptly remove all of Tenant’s Personal Property, and shall restore those portions of the Building and/or the Tenant Space damaged by such removal of (or by the initial installation of) such Tenant’s Personal Property to their condition existing immediately prior to the installation or placement of such items (including, without limitation, the replacement of all damaged floor tiles in the Premises), ordinary wear and tear and damage by fire or other casualty excepted. If Tenant fails to promptly remove any such Tenant’s Personal Property pursuant to this Section 8.4, Landlord shall have the right to cause the removal of such Tenant’s Personal Property and the restoration of those portions of the Building and/or the Tenant Space damaged by such removal to their condition existing immediately prior to the installation or placement of such Tenant’s Personal Property, ordinary wear and tear excepted, in which case Tenant agrees to reimburse Landlord within thirty (30) days of Landlord’s demand therefor, for all of Landlord’s actual and reasonable out of pocket costs of removal and restoration plus an administrative fee equal to five percent (5%) of such costs.

 

9. CASUALTY EVENTS; TAKINGS; INSURANCE .

9.1 Casualty Events; Takings .

9.1.1 Casualty Events . If, during the Term of this Lease, any portion of the Building or the Tenant Space shall be damaged or destroyed, in whole or in part, by a Casualty Event, Landlord shall, subject to the terms of this Section 9.1.1, and Sections 9.1.1.1 and 9.1.1.2, below, cause the Casualty Repair to occur. Landlord shall provide the Casualty Repair Notice to Tenant as soon as is reasonably practicable following the Casualty Event. For the avoidance of doubt, however, such repair and reconstruction obligation shall not be deemed to include any obligation on the part of Landlord with regard to any Alteration, other than Landlord’s Installations, nor any of Tenant’s Personal Property.

9.1.1.1 Landlord’s Termination Right . Notwithstanding the foregoing, in the event that the Repair Period-Estimated exceeds ninety (90) days, Landlord shall have the right to terminate this Lease by, and effective upon, written notice to Tenant as part of the Casualty Repair Notice.

9.1.1.2 Tenant’s Termination Right . If (a) a Casualty Event causes damage to the Tenant Space, or (b) a Casualty Event causes damage to the Building, such that Tenant is prevented from accessing the Premises or Tenant’s use of the Premises/Pathways for the Permitted Use is materially impaired, then Tenant shall have the right to terminate this Lease by, and effective upon, written notice to Landlord if (i) the Repair Period-Estimated exceeds ninety (90) days (in which case Tenant must provide written notice to Landlord of such

 

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termination within sixty (60) days after Tenant’s receipt of the Casualty Repair Notice), or (ii) the Repair Period-Actual exceeds ninety (90) days (in which case Tenant must provide written notice to Landlord of such termination prior to the one hundredth (100 th ) day of the Repair Period-Actual).

9.1.1.3 Casualty-Complete . The foregoing notwithstanding, in the event of a Casualty-Complete, this Lease shall automatically terminate as of the date of the Casualty-Complete.

9.1.1.4 Base Rent Abatement – Casualty Events . In the event that this Lease is terminated pursuant to Sections 9.1.1.1, 9.1.1.2 or 9.1.1.3, above, Landlord shall refund to Tenant any prepaid Base Rent, less any sum then owing to Landlord by Tenant. If, however, this Lease is not terminated pursuant to any of said Sections, Base Rent shall be abated proportionately during the Repair Period-Actual to the extent that the Tenant Space (i) is unfit for use by Tenant in the ordinary conduct of Tenant’s business, and (ii) actually is not used by Tenant.

9.1.2 Takings .

9.1.2.1 Total Taking . If all or substantially all of the Tenant Space, the Building or the Property shall be the subject of a Taking, this Lease shall terminate as of the date of the vesting of title in the condemning authority.

9.1.2.2 Partial Taking . If only a part of the Tenant Space, the Building or the Property shall be the subject of a Taking, this Lease shall continue in full force and effect, subject to the terms of Sections 9.1.2.3-9.1.2.7, below.

9.1.2.3 Landlord’s Termination Right – Partial Taking . If the part of the Building or the Property that is taken or condemned as part of the Taking contains a part of the Tenant Space, the Building or the Property that, in Landlord’s reasonable discretion, is material to the operation of the Tenant Space, Landlord may terminate this Lease by notice to Tenant given within sixty (60) days following the date upon which Landlord received notice of such Taking. If Landlord so notifies Tenant, this Lease shall terminate upon the date set forth in the notice, which date shall not be more than thirty (30) days following the giving of such notice.

9.1.2.4 Tenant’s Termination Right – Partial Taking . If the part of the Building or the Property that is taken or condemned as part of the Taking contains any portion of the Premises that existed immediately prior to such Taking, or if, by reason of such Taking, Tenant no longer has reasonable means of access to the Tenant Space or Tenant’s Permitted Use of the Premises is materially impaired, Tenant may terminate this Lease by notice to Landlord given within sixty (60) days following the date upon which Tenant received notice of such Taking. If Tenant so notifies Landlord, this Lease shall terminate upon the date set forth in the notice, which date shall not be more than thirty (30) days following the giving of such notice.

9.1.2.5 Restoration – Taking . If this Lease shall not have been terminated pursuant to Sections 9.1.2.3 or 9.1.2.4, above, Landlord, at Landlord’s expense, shall, as soon as is reasonably practicable, restore that part of the Tenant Space that was not taken or condemned as part of the Taking to a self-contained rental unit substantially equivalent (with respect to character, quality, appearance and services) to that which existed immediately prior to occurrence of the Taking, excluding Tenant’s Personal Property; provided, however, that in the event Tenant receives an award for Tenant’s Alterations, such amounts shall be applied towards the restoration of such items.

9.1.2.6 Base Rent Abatement – Taking . In the event that this Lease is terminated pursuant to Sections 9.1.2.1, 9.1.2.3 or 9.1.2.4, above, Landlord shall refund to Tenant any prepaid Base Rent, less any sum then owing to Landlord by Tenant. If, however, this Lease is not terminated pursuant to any of said Sections, Base Rent shall be reduced proportionately to the extent that the Premises is reduced as a result of the Taking.

9.1.2.7 Taking Award Rights . Landlord reserves the right to receive the entirety of the condemning authority’s award related to a Taking of any portion of the Property. The foregoing notwithstanding, in the event that this Lease is terminated in connection with any Taking, Landlord expressly permits Tenant to make a separate claim against the condemning authority, in any appropriate proceeding, for the value of Tenant’s

 

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unamortized, but taken, leasehold improvements or other improvements to the Tenant Space made by Tenant and for Tenant’s moving expenses related to such Taking, but only if such claim and/or recovery does not reduce the condemnation/taking award otherwise payable to Landlord in connection with such Taking. If any such award that is made, or compensation that is paid, to either party specifically includes an award or amount for the other, the party first receiving the same shall promptly make an accounting of same to the other.

9.2 Tenant’s Remedy . Tenant’s termination rights and rights to Base Rent abatement, to the extent provided above in this Article 9, shall be Tenant’s sole and exclusive remedies in the event of a Casualty Event or Taking.

9.3 Tenant’s Insurance . Tenant shall, at Tenant’s expense, procure and maintain throughout the Term of this Lease a policy or policies of insurance in accordance with the terms and requirements set forth in Exhibit “B-1” to this Lease. All of Tenant’s insurance policies with respect to the Tenant Space shall be endorsed so as to include a waiver of subrogation in accordance with and to the full extent of Tenant’s waiver of claims with respect to the Landlord Group set forth in Section 14.1.1 of this Lease.

9.3.1 The commercial general liability policies procured by Tenant hereunder shall name Landlord and Landlord’s managing agent, and any Holders designated by Landlord as additional insureds. Prior to occupying the Tenant Space, and prior to the expiration of each such policy, Tenant shall submit to Landlord certificates of insurance evidencing such policies (and the applicable renewals thereof) being in effect. All insurance policies procured hereunder shall contain a provision stating that the insurer shall endeavor to provide at least thirty (30) days’ written notice to Landlord and all others named as additional insureds prior to any cancellation or material modification of such policy.

9.4 Landlord’s Insurance . Landlord shall, at Landlord’s expense, procure and maintain throughout the Term of this Lease a policy or policies of insurance in accordance with the terms and requirements set forth in Exhibit “B-2” to this Lease. Each of such insurance policies shall be endorsed so as to include a waiver of subrogation in accordance with and to the full extent of Landlord’s waiver of claims with respect to the Tenant Group set forth in Section 14.1.2 of this Lease. For the avoidance of doubt, however, Landlord and Tenant acknowledge and agree that, in no event, shall Landlord be obligated to carry any insurance covering any of Tenant’s Personal Property, any Alteration to the Tenant Space made by or on behalf of Tenant, or covering any Tenant Party.

 

10. TRANSFERS .

10.1 Restrictions on Transfers; Landlord’s Consent . Except as otherwise expressly set forth in Section 10.1.1 and Section 10.5, below, to the contrary, Tenant shall not effect a Transfer, without Landlord’s express prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Except as otherwise expressly set forth in this Lease, no Transfer (whether voluntary, involuntary or by operation of law) shall be valid or effective without Landlord’s prior written consent and, at Landlord’s election, any such Transfer or attempted Transfer shall constitute an Event of Default by Tenant under Section 15.1.2 of this Lease.

10.1.1 Permitted Transfer . Notwithstanding anything to the contrary in this Lease, Tenant may, without the consent of Landlord (and without being subject to Landlord’s recapture rights under Section 10.3, below) undertake Permitted Transfers.

10.2 Notice to Landlord . If Tenant desires to make any Transfer (other than a Permitted Transfer, for which Tenant must merely notify Landlord prior to the occurrence of same), then at least ten (10) business days (but no more than one hundred eighty (180) days) prior to the proposed effective date of the Transfer, Tenant shall submit a Transfer Notice to Landlord. If, thereafter, Tenant modifies any of the terms and conditions relevant to a proposed Transfer specified in the Transfer Notice, Tenant agrees to re-submit such Transfer Notice to Landlord for its consent pursuant to all of the terms and conditions of this Article 10.

10.3 Landlord’s Recapture Rights . Except with regard to a Permitted Transfer, at any time within ten (10) business days after Landlord’s receipt of all (but not less than all) of the information and documents described in Section 10.2, Landlord shall have the right (but not the obligation), exercisable by written notice to Tenant, to elect to cancel and terminate this Lease.

 

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10.4 No Release; Subsequent Transfers . No Transfer (whether or not a Permitted Transfer) will release the undersigned Tenant from Tenant’s obligations under this Lease or alter the primary liability of the undersigned Tenant to pay the Rent and to perform all other obligations to be performed by Tenant hereunder. In no event shall the acceptance of any payment by Landlord from any other person be deemed to be a waiver by Landlord of any provision hereof. Consent by Landlord to one Transfer will not be deemed consent to any subsequent Transfer. In the event of breach by any Transferee in the performance of any of the terms hereof, Landlord may proceed directly against the undersigned Tenant without the necessity of exhausting remedies against such Transferee.

10.5 Colocation . Landlord acknowledges that the business to be conducted by the undersigned Tenant in the Premises may require Tenant to enter into Colocation Agreements that will permit Colocation Parties to engage in Colocation Activities. Landlord expressly agrees that Tenant may, without the need for Landlord’s consent, enter into such Colocation Agreements; provided, however, that (a) the Colocation Agreements, and each Colocation Party’s use of the Tenant Space, must comply with the terms of this Lease (including the Datacenter Rules and Regulations) and all Applicable Laws; (b) the Colocation Agreements, and the Colocation Parties’ rights thereunder, shall be subject and subordinate at all times to this Lease and all of its provisions, covenants and conditions; and (c) in no event may the rights of any Colocation Party, vis a vis the members of the Landlord Group, be greater than the rights of Tenant hereunder. Anything to the contrary contained herein notwithstanding, Landlord and Tenant acknowledge and agree that the Colocation Agreements shall not constitute, or be deemed to be, the grant of a leasehold interest, or otherwise constitute, or be deemed to be, a real property interest.

10.6 Excess Rent . Landlord and Tenant agree that, if Tenant assigns this Lease, or subleases any part of the Tenant Space, for any Excess Rent, then Tenant shall pay to Landlord, as Additional Rent, fifty percent (50%) of any such Excess Rent immediately upon Tenant’s receipt thereof.

11. ESTOPPEL CERTIFICATES . At any time and from time to time, within fifteen (15) days after written request by Landlord, Tenant shall execute, acknowledge and deliver to Landlord a statement in writing certifying all matters relating to this Lease reasonably requested by Landlord and/or any prospective purchaser of the Building and/or the Property and/or any Holder. Tenant acknowledges and agrees that any statement delivered (or to be delivered) pursuant to this Article 11 may be relied upon by Landlord and any prospective purchaser of the Building and/or the Property and by any current and/or prospective Holder, and any assignee of any such Holder.

 

12. SUBORDINATION AND ATTORNMENT; HOLDER RIGHTS .

12.1 Subordination and Attornment . Without the necessity of any additional document being executed by Tenant for the purpose of effecting a subordination, and at the election of Landlord or any Holder, this Lease will be subject and subordinate at all times to all Security Documents, which may now exist or hereafter be executed which constitute a lien upon or affect the Property or any portion thereof, or Landlord’s interest and estate in any of said items. Notwithstanding the foregoing, Landlord reserves the right to subordinate (or cause the subordination of) any such Security Documents to this Lease. In the event of any termination or transfer of Landlord’s estate or interest in the Property, the Building or the Tenant Space by reason of any termination or foreclosure of any such Security Documents (and notwithstanding any subordination of such Security Document to this Lease that may or may not have occurred), at the election of Landlord’s successor in interest, Tenant agrees to attorn to and become the tenant of such successor, in which event Tenant’s right to possession of the Property will not be disturbed as long as Tenant is not in default under this Lease beyond applicable notice or cure periods. Tenant hereby waives any right under any Applicable Law or otherwise to terminate or otherwise adversely affect this Lease and the obligations of Tenant hereunder in the event of any termination or transfer of Landlord’s estate or interest in the Property, the Building or the Tenant Space by reason of any termination or foreclosure of any such Security Documents. Tenant covenants and agrees to execute and deliver, within fifteen (15) days of receipt thereof, and in the form reasonably required by Landlord or any Holder, any additional documents evidencing the priority or subordination of this Lease and Tenant’s agreement to attorn with respect to any such Security Document; provided, however, any such agreement subordinating this Lease to such lease, mortgage or deed of trust shall contain a non-disturbance provision that is reasonably acceptable to such Holder, Landlord and Tenant in accordance with Section 12.3, below.

 

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12.2 Holder Protection . Tenant agrees to give each Noticed Holder, by registered or certified mail, a copy of any notice of default served upon the Landlord by Tenant. Tenant further agrees that if Landlord shall have failed to cure such default within thirty (30) days after such notice to Landlord (or if such default cannot be cured or corrected within that time, then within such additional time as may be necessary if Landlord has commenced such cure within such thirty (30) days and is diligently pursuing the remedies or steps necessary to cure or correct such default), then, prior to Tenant pursuing any remedy for such default provided hereunder, at law or in equity, any Noticed Holder shall have an additional thirty (30) days within which to cure or correct such default (or if such default cannot reasonably be cured or corrected within that time, then such additional time as may be necessary if the Noticed Holder has commenced within such thirty (30) days and is diligently pursuing the remedies or steps necessary to cure or correct such default).

12.3 SNDA . Simultaneously with execution of this Lease if the Building is subject to any Security Document, or if the Building is not so subject as of the Effective Date, then at any time that the Building is hereafter made subject to any Security Document(s), Landlord shall use commercially reasonable good faith efforts to cause the Holder to deliver an SNDA to Tenant. Notwithstanding anything herein to the contrary, the subordination of this Lease to any Security Document hereafter placed upon the Building, and Tenant’s agreement to attorn to the Holder as provided in this Article 12, shall be conditioned upon the Holder entering into an SNDA.

 

13. SURRENDER OF TENANT SPACE; HOLDING OVER .

13.1 Tenant’s Method of Surrender . Upon the expiration of the Term of this Lease, or upon any earlier termination of this Lease or the termination of Tenant’s right to possess the Tenant Space, Tenant shall, subject to the provisions of this Article 13 and Section 8.4, quit and surrender possession of the Tenant Space to Landlord in good working order and clean condition, ordinary wear and tear excepted.

13.1.1 Surrender of Suite 1.5 Tenant Space . Notwithstanding the foregoing, no later than the Suite 1.5 Expiration Date, Tenant shall, subject to the provisions of this Article 13 and Section 8.4, quit and surrender possession of the Suite 1.5 Tenant Space to Landlord in good working order and clean condition, ordinary wear and tear excepted.

13.2 Disposal of Tenant’s Personal Property . If any property not belonging to Landlord remains in the Tenant Space after the expiration of, or within fifteen (15) days after any earlier termination of, the Term of this Lease or the termination of Tenant’s right to possess the Tenant Space, Tenant shall be deemed to have abandoned such property and to have authorized Landlord to make such disposition of such property as Landlord may desire without liability for compensation or damages to Tenant or any other Tenant Party.

13.3 Holding Over . If Tenant should remain in possession of all or any portion of the Tenant Space after the expiration of the Term of this Lease (or any earlier termination of this Lease or the termination of Tenant’s right to possess the Tenant Space), without the execution by Landlord and Tenant of a new lease or an extension of the Term of this Lease, then Tenant shall be deemed to be occupying the entire Tenant Space as a tenant-at-sufferance, upon all of the terms contained herein, except as to term and Base Rent and any other provision reasonably determined by Landlord to be inapplicable. During any such holdover period, Tenant shall pay to Landlord a monthly Base Rent in an amount equal to one hundred fifty percent (150%) of the Base Rent payable by Tenant to Landlord during the last month of the Term of this Lease and one hundred percent (100%) of the Additional Rent payable by Tenant to Landlord during the last month of the Term of this Lease. The monthly rent payable for such holdover period shall in no event be construed as a penalty or as liquidated damages for such retention of possession, nor shall such monthly rent be considered to be any form of Consequential Damages related to such retention of possession. Neither any provision hereof nor any acceptance by Landlord of any rent after any such expiration or earlier termination shall be deemed a consent to any holdover hereunder or result in a renewal of this Lease or an extension of the Term, or any waiver of any of Landlord’s rights or remedies with respect to such holdover. As such, and notwithstanding any provision to the contrary contained herein, Landlord expressly reserves the right to require Tenant to surrender possession of the Tenant Space upon the expiration of the Term of this Lease or upon the earlier termination hereof or at any time during any holdover and the right to assert any remedy at law or in equity to evict Tenant and collect damages in connection with any such holdover.

 

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13.3.1 Notwithstanding the foregoing, should Tenant remain in possession of all or any portion of the Suite 1.5 Tenant Space after the expiration of the Suite 1.5 Term, without the execution by Landlord and Tenant of an amendment to this Lease to permit otherwise, then Tenant shall be deemed to be occupying the Suite 1.5 Tenant Space as a tenant-at-sufferance, upon all the terms contained herein, except as to term and Suite 1.5 Base Rent and any other provision reasonably determined by Landlord to be inapplicable. During any such holdover period, Tenant shall pay to Landlord a monthly Suite 1.5 Base Rent in an amount equal to one hundred fifty percent (150%) of the Suite 1.5 Base Rent payable by Tenant to Landlord during the last month of the Suite 1.5 Term and one hundred percent (100%) of the Additional Rent payable by Tenant to Landlord, with respect to Suite 1.5, during the last month of Suite 1.5 Term. The monthly rent payable for such holdover period shall in no event be construed as a penalty or as liquidated damages for such retention of possession, nor shall such monthly rent be considered to be any form of Consequential Damages related to such retention of possession. Neither any provision hereof nor any acceptance by Landlord of any rent after any such expiration or earlier termination shall be deemed a consent to any holdover hereunder or result in a renewal of this Lease or an extension of the Suite 1.5 Term, or any waiver of any of Landlord’s rights or remedies with respect to such holdover. As such, and notwithstanding any provision to the contrary contained herein, Landlord expressly reserves the right to require Tenant to surrender possession of the Suite 1.5 Tenant Space upon the expiration of the Suite 1.5 Term or upon the earlier termination thereof or at any time during any holdover and the right to assert any remedy at law or in equity to evict Tenant from Suite 1.5 and collect damages in connection with any such holdover.

13.4 Survival . The provisions of this Article 13 shall survive the expiration or early termination of this Lease.

 

14. WAIVERS; INDEMNIFICATION; CONSEQUENTIAL DAMAGES; LIENS .

14.1 Waivers .

14.1.1 Tenant hereby waives its rights against the Landlord Group with respect to any claims or damages or losses for bodily injury to persons and/or damage to any Tenant’s Personal Property, which are caused by or result from (i) risks insured against under any insurance policies which are required to be obtained and maintained by Tenant under this Lease, and were, in fact, carried by Tenant at the time of such claim, damage, loss or injury, or (ii) risks which would have been covered under any insurance required to be obtained and maintained by Tenant under this Lease had such insurance been obtained and maintained as required, including all such claims, damages and losses, which are caused by or result from the negligence or willful misconduct of any member of the Landlord Group . The foregoing waivers shall be in addition to, and not a limitation of, any other waivers or releases contained in this Lease.

14.1.2 Landlord hereby waives its rights against the Tenant Group with respect to any claims or damages or losses for bodily injury to persons and/or for damage to the Building, the Property and/or Landlord’s equipment and fixtures, which are caused by or result from (i) risks insured against under any insurance policies which are required to be obtained and maintained by Landlord under this Lease and that were, in fact, carried by Landlord at the time of such claim, damage, loss or injury, or (ii) risks which would have been covered under any insurance required to be obtained and maintained by Landlord under this Lease had such insurance been obtained and maintained as required , including all such claims, damages and losses, which are caused by or result from the negligence or willful misconduct of any member of the Tenant Group . The foregoing waivers shall be in addition to, and not a limitation of, any other waivers or releases contained in this Lease.

14.2 Indemnification .

14.2.1 Indemnification by Tenant. To the maximum extent permitted by law, Tenant hereby agrees to indemnify, defend, and hold harmless Landlord and the other members of the Landlord Group from and against (and to reimburse Landlord and the other members of the Landlord Group for) any and all Claims arising from and/or in connection with:

(i) the use or occupancy of the Tenant Space or any portion of the Building or the Property by Tenant or any other Tenant Party and/or any person claiming by, through or under Tenant or any other Tenant Party, including, without limitation:

(a) Claims related to any Colocation Agreement;

 

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(b) the acts or omissions of any Colocating Party;

(c) the payment (or non-payment) of Taxes – Equipment;

(d) the malfunctioning of Tenant’s Security System;

(e) Claims related to any of Tenant’s Personal Property;

(f) Claims by any Tenant Party (or any individual accessing the Tenant Space on any Tenant Party’s behalf) for bodily injury;

(g) Tenant’s failure to surrender the Tenant Space upon the expiration or any earlier termination of this Lease or the termination of Tenant’s right to possess the Tenant Space in accordance with the terms of this Lease; and

(h) the removal, exercise of dominion over and/or disposition of any of Tenant’s Personal Property that is left in the Tenant Space after the expiration of the Term of this Lease in violation of Section 13.2.

(ii) the active gross negligence or willful misconduct of Tenant or any other Tenant Party with respect to the Tenant Space, the Building or the Property;

(iii) any person or entity, other than the Tenant’s Broker listed in Item 13 of the Basic Lease Information, making a claim for any commission or other compensation in connection with the execution of this Lease or the leasing of the Tenant Space to Tenant if based on an allegation that such claimant dealt through Tenant.

14.2.1.1 The foregoing notwithstanding, Tenant shall not be required to indemnify Landlord or any other member of the Landlord Group to the extent that the relevant Claims were caused by the negligence or willful misconduct of any member of the Landlord Group.

14.2.1.2 In the event that any action or proceeding is brought against Landlord or any other member of the Landlord Group by reason of any indemnified Claim, Tenant, upon notice from Landlord, shall defend such action or proceeding at Tenant’s cost and expense by counsel reasonably approved by Landlord. Tenant agrees that no settlement offer shall be offered or accepted by Tenant in connection with any such indemnification and/or defense without Landlord’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. This indemnity provision and Tenant’s obligations under this Section 14.2 shall survive the expiration or termination of this Lease as to any matters arising prior to such expiration or termination or prior to Tenant’s vacation of the Tenant Space and the Building. Notwithstanding any provision to the contrary contained in this Section 14.2, nothing contained in this Section 14.2 shall be interpreted or used in any way to affect, limit, reduce or abrogate any insurance coverage provided by any insurer to either Tenant or Landlord.

14.2.2 Indemnification by Landlord . Landlord hereby agrees to defend, indemnify, and hold harmless Tenant and the other members of the Tenant Group from and against (and to reimburse Tenant and the other members of the Tenant Group for) all Claims to the extent arising from or in connection with the active gross negligence or willful misconduct of Landlord or any member of the Landlord Group at the Property.

14.2.2.1 The foregoing notwithstanding, Landlord shall not be required to indemnify Tenant or any other member of the Tenant Group to the extent that the relevant Claims were caused by the negligence or willful misconduct of any member of the Tenant Group.

14.2.2.2 In the event that any action or proceeding is brought against Tenant or any other member of the Tenant Group by reason of any indemnified Claim, Landlord upon notice from Tenant shall defend such action or proceeding at Landlord’s cost and expense by counsel reasonably approved by Tenant. Landlord agrees that no settlement offer shall be offered or accepted by Landlord in connection with any such

 

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indemnification and/or defense without Tenant’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. This indemnity provision and Landlord’s obligations under this Section 14.2 shall survive the expiration or termination of this Lease as to any matters arising prior to such expiration or termination. Notwithstanding any provision to the contrary contained in this Section 14.2, nothing contained in this Section 14.2 shall be interpreted or used in any way to affect, limit, reduce or abrogate any insurance coverage provided by any insurer to either Tenant or Landlord.

14.3 Consequential Damages . Notwithstanding anything to the contrary (express or implied) contained herein, under no circumstances whatsoever shall Landlord or Tenant ever be liable under this Lease for first-party or third-party Consequential Damages; provided however, that to the maximum extent permitted by law, Tenant hereby agrees to indemnify and hold Landlord and the other members of the Landlord Group harmless with regard to (and to reimburse Landlord and any other members of the Landlord Group for) any and all claims by, through, or under any Tenant Space Customer for Consequential Damages related to any use of the Tenant Space or any equipment located within the Tenant Space, excluding all such claims, if any, which arise as a result of the negligence of any member of the Landlord Group.

14.4 Liens . Notwithstanding anything to the contrary herein, in no event shall Tenant have any right (express or implied) to create or permit there to be established any lien or encumbrance of any nature against the Tenant Space, the Building or the Property or against Landlord’s or Tenant’s interest therein or hereunder, including, without limitation, for any improvement or improvements by Tenant, and Tenant shall fully pay the cost of any improvement or improvements made or contracted for by Tenant. Tenant shall require each contractor which it engages to perform any improvements or alterations within the Tenant Space or elsewhere in the Building or the Property, to acknowledge and agree in writing that it is performing its work under its agreement with Tenant solely for the benefit of Tenant and that Tenant is not acting as Landlord’s agent. Any mechanic’s lien filed against the Tenant Space, the Building or the Property, or any portion of any of the above, for work claimed to have been done, or materials claimed to have been furnished to Tenant, shall be duly discharged or bonded off by Tenant within thirty (30) days after notice to Tenant of the filing of the lien.

 

15. TENANT DEFAULT .

15.1 Events of Default By Tenant . Each of the following shall constitute an Event of Default by Tenant under this Lease:

15.1.1 Any failure or refusal by Tenant to timely pay any undisputed* portions of Rent or other payments or charges required to be paid hereunder, within ten (10) days of notice that the same is due.

 

* In order to be considered to have been properly disputed, the relevant amount(s) must have been timely disputed in good faith in writing by Tenant prior to the due date thereof.

15.1.2 Any failure by Tenant to perform or observe any other covenant or condition of this Lease (including, without limitation, those contained in the Datacenter Rules and Regulations) to be performed or observed by Tenant (other than those described in Section 15.1.1, above or Sections 15.1.3, 15.1.4, or 15.1.5, below) if such failure continues for a period of thirty (30) days following written notice to Tenant of such failure; provided, however, that in the event Tenant’s failure to perform or observe any covenant or condition of this Lease to be performed or observed by Tenant cannot reasonably be cured within thirty (30) days following written notice to Tenant, Tenant shall not be in default if Tenant commences to cure same within such thirty (30) day period and thereafter diligently prosecutes the curing thereof to completion.

15.1.2.1 Event of Default-ECT Overage . Section 15.1.2, above, notwithstanding, it shall be an Event of Default by Tenant (i) if Tenant fails to remedy* an ECT Overage within one hundred twenty (120) hours after its receipt of an ECT Default Notice, and/or (ii) if three (3) separate and distinct ECT Overages occur in any rolling thirty (30) day period.

 

* In connection with this Section 15.1.2.1, the term “remedy” shall mean and refer to a meaningful and relatively permanent remedy of the condition causing the ECT Overage.

 

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15.1.3 The filing or execution or occurrence of any one of the following provided the same is not dismissed or otherwise rectified within sixty (60) days: (i) a petition in bankruptcy or other insolvency proceeding by or against Tenant, (ii) a petition or answer seeking relief for Tenant under any provision of the Bankruptcy Act, (iii) an assignment by Tenant for the benefit of creditors, (iv) a petition or other proceeding by or against Tenant for the appointment of a trustee, receiver or liquidator of Tenant or any of Tenant’s property, (v) a proceeding by any governmental authority for the dissolution or liquidation of Tenant, or (vi) any other instance whereby Tenant or any general partner of Tenant or any guarantor of Tenant’s obligations under this Lease shall cease doing business as a going concern.

15.1.4 Any failure by Tenant to execute and deliver any statement or document described in Article 11, Section 12.1 or Section 17.21 requested to be so executed and delivered by Landlord within the time periods specified in such Article or Section, where such failure continues for ten (10) days after delivery of written notice of such failure by Landlord to Tenant.

The parties hereto acknowledge and agree that all of the notice periods provided in this Section 15.1 are in lieu of, and not in addition to, the notice requirements of any Applicable Laws.

15.2 Remedies . Upon the occurrence of any Event of Default by Tenant, Landlord shall, in addition to an action for money damages, specific performance and/or injunctive relief, have the option to pursue any one or more of the remedies described in Section 1 of Exhibit “D” attached hereto and incorporated herein by this reference, each and all of which shall, subject to applicable law, be cumulative and nonexclusive.

 

16. LANDLORD’S LIABILITY .

16.1 Landlord Default; Tenant’s Remedies.

16.1.1 Landlord Default . The following shall constitute a Landlord Default:

16.1.1.1 if: (a) Landlord shall fail to perform or observe any of Landlord’s Lease Undertakings, and (b) such failure continues for a period of ten (10) days following written notice to Landlord of such failure; provided, however, that in the event that Landlord’s failure to perform or observe any of Landlord’s Lease Undertakings cannot reasonably be cured within ten (10) days following written notice to Landlord, such failure to cure shall not be a Landlord Default if Landlord commences its cure within such ten (10) day period and thereafter diligently prosecutes the curing thereof to completion. Landlord agrees to use commercially reasonable efforts to provide daily updates to Tenant regarding progress toward such completion.

16.1.1.2 The filing or execution or occurrence of any one of the following, provided the same is not dismissed or otherwise rectified within sixty (60) days: (i) a petition in bankruptcy or other insolvency proceeding by or against Landlord, (ii) a petition or answer seeking relief for Landlord under any provision of the Bankruptcy Act, (iii) an assignment by Landlord for the benefit of creditors, (iv) a petition or other proceeding by or against Landlord for the appointment of a trustee, receiver or liquidator of Landlord or any of Landlord’s property, (v) a proceeding by any governmental authority for the dissolution or liquidation of Landlord, or (vi) any other instance whereby Landlord or any general partner of Landlord or any guarantor of Landlord’s obligations under this Lease shall cease doing business as a going concern.

16.1.2 Tenant’s Remedies . Except as otherwise expressly provided herein, (a) in the event of any Landlord Default, Tenant’s sole and exclusive remedies for any such failure shall be an action for money damages, specific performance and/or injunctive relief, and (b) in no event shall Tenant have the right to terminate the Lease nor shall Tenant’s obligation to pay Base Rent or other charges under this Lease abate based upon any default by Landlord of its obligations under the Lease. In that connection, Tenant hereby expressly waives any right conveyed to Tenant by virtue of any law granting Tenant a lien upon the property of Landlord and/or upon rental due to Landlord or granting Tenant a right to withhold Rent and/or terminate this Lease.

 

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16.2 Landlord’s Liability . In consideration of the benefits accruing under this Lease to Tenant, and notwithstanding anything to the contrary contained in the Lease Documents, it is expressly understood and agreed by and between the parties to this Lease that:

(i) the collective recourse of Tenant and its successors and assigns against Landlord (and the liability of Landlord to Tenant, its successors and assigns) with respect to (a) any actual or alleged breach or breaches by or on the part of Landlord of any of Landlord’s Lease Undertakings, and (b) any other matter relating to Tenant’s occupancy of the Tenant Space, shall be limited, in the aggregate, solely to an amount equal to Landlord’s Liability Cap;

(ii) other than Landlord’s Liability Cap, Tenant shall have no recourse against any other assets of Landlord;

(iii) Tenant shall have no recourse against any assets of any member of the Landlord Group other than Landlord;

(iv) except to the extent of Landlord’s Liability Cap, no personal liability or personal responsibility of any sort with respect to any of Landlord’s Lease Undertakings, or any alleged breach thereof, is assumed by, or shall at any time be asserted or enforceable against, Landlord; and

(v) no personal liability or personal responsibility of any sort with respect to any of Landlord’s Lease Undertakings, or any alleged breach thereof, is assumed by, or shall at any time be asserted or enforceable against, any member of the Landlord Group other than Landlord.

16.3 Transfer of Landlord’s Interest . Landlord (and each of Landlord’s successors-in-interest) shall have the right, from time to time, to assign its interest and obligations, in writing and/or by operation of law, in and under this Lease to any third party to whom Landlord conveys its interest in the Property. Once and if Landlord (and/or any successor to Landlord) shall convey its interest in the Property to a third party, (a) Landlord (and each such successor) shall be fully released from all of the obligations and liabilities of Landlord under the Lease Documents accruing on or after the date of such transfer of Landlord’s interest in the Property to such third party, and (b) Tenant agrees to look solely to the successor-in-interest of Landlord for all such obligations and liabilities accruing on or after the date of such transfer. If any security has been given by Tenant to secure the faithful performance of any of the covenants of this Lease, Landlord shall transfer or deliver said security, as such, to Landlord’s successor in interest and thereupon Landlord shall be discharged from any further liability with regard to said security.

16.3.1 Status as a Real Estate Investment Trust . Landlord shall have the right, from time to time, to assign part of its interest and obligations in and under this Lease to a wholly owned subsidiary of Landlord (or a wholly owned subsidiary of Landlord’s parent company), if and to the extent that Landlord determines such partial transfer is necessary or advisable in connection with the status of Landlord, or any other member of the Landlord Group, as a real estate investment trust.

16.3.2 Partial Assignment . Should Landlord assign part of its obligation to a third party, Landlord shall, subject to the terms of Sections 14.1, 14.2 and 16.2, retain the responsibility for ensuring that the assigned obligations are properly performed under this Lease, including ensuring that such third party provides all reasonable account management services.

 

17. MISCELLANEOUS .

17.1 Severability . If it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is invalid or unenforceable, (i) the remaining terms and provisions hereof shall be unimpaired and shall remain in full force and effect; and (ii) the invalid or unenforceable term or provision shall be replaced by a term or provision that is valid and enforceable and that comes closest to effectuating the intention of such invalid or unenforceable term or provision.

17.2 No Waiver . No failure or delay by Landlord to insist on the strict performance of any obligation, covenant, agreement, term or condition of this Lease, or to exercise any right or remedy available upon such non-performance, will constitute a waiver thereof, and no breach or failure by Tenant to perform will be waived, altered or modified, except by written instrument signed by Landlord.

 

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17.3 Attorneys’ Fees and Costs . If either Landlord or Tenant initiates any litigation, mediation, arbitration or other proceeding regarding the enforcement, construction or interpretation of this Lease, then the non-prevailing party shall pay the prevailing party’s reasonable attorneys’ fees and costs (including, without limitation, all reasonable expense reimbursements, reasonable expert witness fees, reasonable litigation costs, court or arbitration tribunal costs, filing fees, reasonable exhibit fees, reasonable forensic consultant fees, reasonable litigation support costs, the costs of appeals and reasonable attorneys’ fees and costs incurred in connection with post-judgment collection and enforcement efforts). In addition, if it should otherwise be necessary or proper for Landlord to consult an attorney concerning this Lease for the review of instruments evidencing a proposed Transfer or for the purpose of collecting Rent, Tenant agrees to pay to Landlord its actual attorneys’ fees whether suit be brought or not to the extent such fees exceed $1,000.00 . The parties agree that this Section 17.3 shall survive the expiration or termination of this Lease.

17.4 Waiver of Right to Jury Trial . TO THE FULLEST EXTENT PERMITTED BY LAW, LANDLORD AND TENANT EACH EXPRESSLY WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY TRIAL HELD AS A RESULT OF A CLAIM ARISING OUT OF, IN CONNECTION WITH, OR IN ANY MANNER RELATED TO THIS LEASE IN WHICH LANDLORD AND TENANT ARE ADVERSE PARTIES. FOR THE AVOIDANCE OF DOUBT, THE FILING OF A CROSS-COMPLAINT BY ONE AGAINST THE OTHER IS SUFFICIENT TO MAKE THE PARTIES “ADVERSE.”

17.5 Headings; Time; Survival . The headings of the Articles, Sections, Schedules and Exhibits of this Lease are for convenience only and do not define, limit or construe the contents thereof. Words of any gender used in this Lease shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, unless the context otherwise requires. In all instances where a party is required to pay any sum or do any act at a particular indicated time or within an indicated period, it is understood that time is of the essence. Any obligations of a party accruing prior to the expiration or termination of this Lease shall survive the expiration or termination of this Lease, and such party shall promptly perform all such obligations whether or not this Lease has expired.

17.6 Notices . Any notice which may or shall be given under the provisions of this Lease shall be in writing and may be delivered by (i) hand delivery or personal service, (ii) a reputable overnight courier service which provides evidence of delivery, or (iii) (iv) e-mail (so long as a confirming copy is forwarded by a reputable overnight courier service within twenty-four (24) hours thereafter), if for Landlord, to the Building office and at the address specified in Item 11 of the Basic Lease Information, or if for Tenant, at the address specified in Item 3 of the Basic Lease Information, or at such other addresses as either party may have theretofore specified by written notice delivered in accordance herewith. Such address may be changed from time to time by either party by giving notice as provided herein. Notice shall be deemed given, (a) when delivered (if delivered by hand or personal service), (b) if sent by a reputable overnight courier service, on the business day immediately following the business day on which it was sent, or (c) the date the e-mail is transmitted.

17.7 Governing Law; Jurisdiction . This Lease shall be governed by, and construed in accordance with, the laws of the state in which the Property is located. In addition, Landlord and Tenant hereby submit to the local jurisdiction of the State in which the Property is located. Each party agrees that any action by the other against such party shall be instituted in the State in which the Property is located.

17.8 Incorporation; Amendment; Merger . This Lease, along with any schedules, exhibits and attachments or other documents referred to herein, all of which are hereby incorporated into this Lease by this reference, constitutes the entire and exclusive agreement between Landlord and Tenant relating to the Tenant Space and each of the aforementioned documents may be altered, amended or revoked only by an instrument in writing signed by the party to be charged thereby. All prior or contemporaneous oral or written agreements, understandings and/or practices relative to the leasing or use of the Tenant Space are merged herein or revoked hereby.

17.9 Brokers . Each party hereto represents to the other that the representing party has not engaged, dealt with or been represented by any broker in connection with this Lease other than the respective broker(s) and advisors specified in Item 13 of the Basic Lease Information.

 

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17.10 Examination of Lease; Binding on Parties . Each of the parties hereto acknowledges that it has read and reviewed this Lease and that it has had the opportunity to confer with counsel in the negotiation of this Lease. Accordingly, this Lease shall be construed neither for nor against Landlord or Tenant, but shall be given a fair and reasonable interpretation in accordance with the meaning of its terms and the intent of the parties. This Lease shall not be binding or effective until each of the parties hereto has executed and delivered an original counterpart hereof to each other. No contractual or other rights shall exist between Landlord and Tenant with respect to the Tenant Space until both have executed and delivered this Lease, notwithstanding that Landlord has delivered to Tenant an unexecuted copy of this Lease. The submission of this Lease to Tenant shall not constitute the grant of an option for the Tenant to lease, or otherwise create any interest by Tenant in, the Tenant Space. The execution of this Lease by Tenant and return to Landlord shall not be binding upon Landlord, notwithstanding any time interval, until Landlord has, in fact, executed and delivered this Lease to Tenant.

17.11 Recordation . Neither Tenant nor any person or entity acting through, under or on behalf of Tenant shall record or cause the recordation of this Lease; provided however that a short form memorandum of this Lease (the “ Memo of Lease ”) in the form attached hereto as Exhibit “K” shall be executed by Landlord and Tenant within ten (10) business days after the Effective Date and recorded by Tenant in the real estate records of Middlesex County, Massachusetts.

17.12 Authority . Each of Landlord and Tenant represents to the other party that the person executing this Lease on its behalf is duly authorized to execute and deliver this Lease pursuant to its respective by-laws, operating agreement, resolution or other legally sufficient authority. Further, each party represents to the other party that (i) if it is a partnership, the undersigned are all of its general partners, (ii) it has been validly formed or incorporated, (iii) it is duly qualified to do business in the state in which the Property is located, and (iv) this Lease is being executed on its behalf and for its benefit.

17.13 Successors and Assigns . Except as otherwise provided in this Lease, all of the covenants, conditions and provisions of this Lease shall be binding upon, and shall inure to the benefit of the parties hereto and their respective heirs, personal representatives and permitted successors and assigns.

17.14 Force Majeure . Except for the extent to which a party’s obligations or rights are expressly stated herein to apply notwithstanding the effect of Force Majeure events, a party shall incur no liability to the other party with respect to, and shall not be responsible for any failure to perform, any of its obligations hereunder (other than payment obligations or obligations that may be cured by the payment of money (e.g., maintaining insurance)) if such failure is caused by a Force Majeure event. The amount of time for a party to perform any of its obligations (other than payment obligations) shall be extended by the amount of time such party is delayed in performing such obligation by reason of any Force Majeure event.

17.15 No Partnership or Joint Venture; No Third Party Beneficiaries . Nothing contained in this Lease shall be deemed or construed to create the relationship of principal and agent, or partnership, or joint venturer, or any other relationship between Landlord and Tenant other than landlord and tenant. Landlord shall have no obligations hereunder to any person or entity other than Tenant, and no other parties shall have any rights hereunder as against Landlord.

17.16 Access by Landlord . Landlord, Landlord’s agents and employees shall have the right to enter upon any and all parts of the Tenant Space at any reasonable time upon prior reasonable oral or written notice (except in the case of an emergency when no prior notice shall be required, and except as otherwise expressly set forth below) to examine the condition thereof, to clean, to make any repairs, alterations or additions required to be made by Landlord hereunder, to show the Tenant Space to prospective purchasers or prospective or current mortgage lenders (in either case only upon 48 hours’ prior oral or written notice), to show the Tenant Space to prospective tenants (only during the last three (3) months of the Term, and only upon 48 hours’ prior oral or written notice), to determine whether Tenant is complying with all of its obligations under this Lease, and/or to exercise any of Landlord’s rights or remedies hereunder. In connection with Landlord’s rights hereunder, Tenant agrees that Landlord shall at all times have and retain a key that will unlock all of the doors in, on or about the Tenant Space; and, in the absence of such a key, Landlord shall have the right to use any reasonable means to open such doors to obtain entry to the Tenant Space. Notwithstanding anything herein to the contrary, except for emergencies, Landlord shall use reasonable efforts to minimize disruption of Tenant’s business or occupancy during such entries.

 

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17.17 Rights Reserved by Landlord . Except as otherwise expressly provided to the contrary in this Lease, Landlord hereby expressly reserves all rights related to the Premises, the Building and the Property, including, but not limited to the right: (i) to change the name or street address of the Building and/or the Property; (ii) to install, affix and maintain all signs on the exterior and/or interior of the Building and/or the Property; (iii) to change, from time to time, the dimensions, configurations and locations of the Common Areas, and/or to otherwise make such alterations to the Building as Landlord deems desirable without disruption of the conduct of Tenant’s business in the Premises/Pathway; (iv) to install, operate and maintain systems which monitor, by closed circuit television or otherwise, all persons entering or leaving the Building and/or the Property; (v) to install and maintain pipes, ducts, conduits, wires and structural elements located in the Tenant Space and which serve other parts or other tenants or occupants of the Building and/or the Property without disruption of the conduct of Tenant’s business in the Premises/Pathway; (vi) to create any additional improvements to structural and/or mechanical systems, interior and exterior walls and/or glass without disruption of the conduct of Tenant’s business in the Premises/Pathway; and (vii) to lease space in the Building and the Property, and to create such other tenancies in the Building and the Property as Landlord shall desire. Notwithstanding the foregoing, Landlord shall notify Tenant of such alterations as may materially alter the delivery of service and make commercially reasonable accommodations to ameliorate any adverse impact on such delivery of service for changes to service components including but not limited to the following:

 

  a) 2N UPS, N +1 Generator redundancy for the Premises.

 

  b) Concurrently maintainable (Tier III) Premises.

 

  c) At least 6 minutes of UPS power under full load.

 

  d) 36” raised floor height and 14’ ceiling height.

 

  e) 25% perforated tiles for Tenant space.

 

  f) At least 24 hours of fuel run time for generators.

 

  g) Double-interlock pre-action sprinkler system.

 

  h) Generators to have weather resistant enclosure and a double contained fuel tank, as well as all required approvals of such generators from local municipality (including architectural, noise, and planning to the extent required by Applicable Law).

 

  i) Monitoring of PDU and other electrical infrastructure using BMS by TAC or equivalent systems.

 

  j) Revenue grade metering at the main distribution voltage supply switch.

 

  k) Energy management & monitoring system, with monitoring and control for: mechanical heat rejection equipment; UPS systems; PDUs; fire alarm; water flow switch; security system; temperature/humidity; under floor leak detection system; lighting; power metering & monitoring system / energy management system. The energy management & monitoring system will monitor all critical equipment for the Building, with alerts configured to page the Building engineer, service provider, and, if required by Tenant, Tenant staff.

 

  l) Tenant access to web portal including viewing the Building management system data for the Premises.

 

  m) Carrier neutrality and availability of multiple IP transit providers in the Building.

 

  n) Multiple fiber egress points from the Building.

 

  o) Building security monitoring.

 

  p) Continuation of all building services, including provisioning, maintenance, and replacement of common electrical and HVAC equipment, access to loading dock, exterior maintenance (landscaping, parking lot, etc.); and interior services (trash pickup, common area maintenance, restrooms and temperature control) without additional charge to client.

 

  q) Electronic “key card” reader/system for access into the Premises.

17.18 Counterparts; Delivery by Facsimile or E-mail . This Lease may be executed simultaneously in two or more counterparts each of which shall be deemed an original, but all of which shall constitute one and the same Lease. Landlord and Tenant agree that the delivery of an executed copy of this Lease by facsimile or e-mail shall be legal and binding and shall have the same full force and effect as if an original executed copy of this Lease had been delivered.

17.19 Confidentiality . Each party agrees that (i) the terms and provisions of this Lease, business and financial information disclosed by either party, trade secrets, and disputes, are confidential and constitute proprietary information of the parties and (ii) it shall not disclose, and it shall cause its partners, officers, directors, shareholders, employees, brokers and attorneys to not disclose any term or provision of this Lease to any other person without

 

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first obtaining the prior written consent of the other party, except that each party shall have the right to disclose such information for valid business, legal and accounting purposes and/or if advisable under any applicable securities laws regarding public disclosure of business information. Landlord acknowledges that Tenant will include this Lease in filings with governmental agencies, including without limitation the Securities and Exchange Commission, but only to the extent that such inclusion and/or disclosure is required under applicable securities laws. The foregoing notwithstanding, Landlord reserves the right to post a press release or press releases, that discloses the fact that Landlord and Tenant have entered into a lease; provided that same does not disclose the location, economics or square footage related hereto. Any references in such press release or press releases, in excess of the fact that Landlord and Tenant have entered into a lease, require approval by Tenant, which Tenant may withhold in its sole and absolute discretion.

17.20 Incorporation of Schedules and Exhibits . All of the terms and conditions of all of the Schedules and Exhibits to this Lease are hereby incorporated into this Lease.

17.21 Financial Statements . Within ten (10) business days after Landlord’s written request therefor, which request shall be made only in the event that any actual or prospective lender, mortgagee or purchaser of the Building has required same, Tenant shall deliver Tenant’s Financial Statements to Landlord for the two (2) fiscal years immediately preceding Landlord’s request. If Tenant does not then have its Financial Statements audited, Tenant must forward unaudited Financial Statements certified by Tenant’s chief financial officer as true, complete and correct in all material respects. Tenant’s failure to timely comply with this Section 17.21 shall be an Event of Default by Tenant under Section 15.1.4 of this Lease. Landlord hereby agrees to maintain Tenant’s Financial Statements as proprietary and confidential and agrees not to disclose Tenant’s Financial Statements to any third party other than any actual or prospective lender, mortgagee, or purchaser of the Building, and Landlord’s attorneys, accountants and similar business advisors. Notwithstanding the foregoing, this Section 17.21 shall not apply with regard to Tenant’s Financial Statements if, as the case may be, (a) the entity named as “Tenant” or the entity that is named as “Guarantor” under this Lease is a publicly traded entity that is traded on a nationally recognized stock exchange, and (b) such entity’s Financial Statements are available online at no cost to Landlord.

17.22 Master Lease . Landlord and Tenant hereby acknowledge and agree that Landlord may enter into a Master Lease with a Third Party Tenant for the operation and control of all or part of the Premises, and in such event, the Lease will automatically, without consent or further action of Tenant, be deemed a sublease between the Third Party Tenant, as sub-landlord, and Tenant, as subtenant. This provision is self-operating; however, Tenant agrees to execute any documents needed to confirm such sublease, Landlord will use commercially reasonable efforts cause the lessor under such Master Lease to execute a reasonable non-disturbance and recognition agreement with Tenant simultaneously with the execution of such Master Lease, and if the Master Lease is entered into and Third Party Tenant defaults thereunder, Tenant will attorn to Landlord, as substitute sublandlord, and, provided Tenant is not in default under the Lease after the expiration of any applicable notice and cure periods, Tenant may remain in possession of the Tenant Space under the terms of the Lease, even if Landlord should terminate the Master Lease.

17.23 Conversion of Previous Agreement . Landlord and Tenant hereby acknowledge and agree that, notwithstanding anything to the contrary in the Previous Agreement, effective as of the Commencement Date, the Previous Agreement is hereby converted to be this Lease for all purposes for the Term described in this Lease, such that from and after the Commencement Date, (a) the terms of the Previous Agreement shall no longer be of any force and/or effect, and (b) the parties’ rights, obligations and duties with respect to the Tenant Space shall be governed solely by this Lease.

[SIGNATURES APPEAR ON NEXT PAGE]

 

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IN WITNESS WHEREOF, the parties hereto have duly executed this Lease on the respective dates set forth below to be effective as of the Effective Date.

 

LANDLORD :

DIGITAL 55 MIDDLESEX, LLC,

a Delaware limited liability company

By:   Digital Realty Trust, L.P.,
  a Maryland limited partnership,
  its sole member and manager
  By:   Digital Realty Trust, Inc.,
    a Maryland corporation,
    its general partner
    By:  

/s/ Chun M. Lee

    Name:   Chun M. Lee
    Its:   Vice President
Date: February 18, 2011

 

TENANT :

CONSTANT CONTACT, INC.,

a Delaware corporation

By:  

/s/ John Walsh

Name:   John Walsh
Title:   Senior Vice President, Engineering and Operations
Date: February 15, 2011

 

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EXHIBIT “A”

DEPICTION OF THE SUITES, THE WEST POP ROOM, THE EAST POP ROOM

AND THE DATACENTER CONNECTION AREA

 

LOGO

 

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EXHIBIT “B-1”

TENANT’S INSURANCE REQUIREMENTS

Policies

 

A. Commercial general liability insurance (including contractual liability):    $5,000,000 single limit; $5,000,000 aggregate limit.*
B. “Special Peril Form” property insurance:    Full replacement value of Tenant’s Personal Property.
C. Workers’ compensation insurance:    In accordance with the laws of the state in which the Property is located, and Employer’s Liability insurance with a limit not less than $1,000,000 Bodily Injury Each Accident; $1,000,000 Bodily Injury By Disease - Each Person; and $1,000,000 Bodily Injury By Disease - Policy Limit.
D. Automobile liability insurance:    Primary auto liability insurance with limits of not less than $1,000,000 per occurrence covering owned, hired and non-owned vehicles used by Tenant or any other member of the Tenant Group.
E. Business interruption insurance:    In such amount as will reimburse Tenant for direct or indirect loss of earnings attributable to all perils insured against by the property insurance described above for a period of not less than twelve (12) months.

 

* some or all of which may be provided by umbrella coverage.

Requirements :

All insurance required of Tenant under this Lease shall be issued by insurers with a “General Policyholders Rating” of at least A-, VIII, as set forth in “Best’s Insurance Guide.” Such insurers shall be authorized to do business in the State in which the Property is located. Tenant’s commercial general liability policy shall be written to apply to all bodily injury (including death), property damage and personal injury losses, and shall include blanket contractual liability, broad form property damage, independent contractor’s coverage, cross liability and severance of interest clauses.

 

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EXHIBIT “B-2”

LANDLORD’S INSURANCE REQUIREMENTS

Policies

 

A. Commercial general liability insurance (including contractual liability):    $10,000,000 single limit; $20,000,000 aggregate limit.*
B. “Special Peril Form” property insurance:    Full replacement value of the Building and Landlord’s personal property installed therein.*
C. Workers’ compensation insurance:    In accordance with the laws of the state in which the Property is located, and Employer’s Liability insurance with a limit not less than $1,000,000 Bodily Injury Each Accident; $1,000,000 Bodily Injury By Disease - Each Person; and $1,000,000 Bodily Injury By Disease - Policy Limit.
D. Automobile liability insurance:    Primary auto liability insurance with limits of not less than $1,000,000 per occurrence covering owned, hired and non-owned vehicles used by Landlord or any other member of the Landlord Group.

 

* some or all of which may be provided by umbrella coverage.

Requirements :

All insurance required of Landlord under this Lease shall be issued by insurers with a “General Policyholders Rating” of at least A-, VIII, as set forth in “Best’s Insurance Guide.” Such insurers shall be authorized to do business in the State in which the Property is located. Landlord’s commercial general liability policy shall be written to apply to all bodily injury (including death), property damage and personal injury losses, and shall include blanket contractual liability, broad form property damage, independent contractor’s coverage, cross liability and severance of interest clauses.

 

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EXHIBIT “C”

DESCRIPTION OF PATHWAYS

 

1. Existing Pathways :

 

  a. Two (2) two-inch (2”) conduits from Suite 1.5 to the West POP Room (“ Existing Pathway-A ”);

 

  b. Two (2) three-inch (3”) conduits from Suite 1.5.2 to the West POP Room (“ Existing Pathway-B ”);

 

  c. Two (2) three-inch (3”) conduits from Suite 1.5 to Suite 1.5.1 (“ Existing Pathway-C ”); and

 

  d. Two (2) three-inch conduits from Suite 1.5.1 to Suite 1.5.2 (“ Existing Pathway-D ”);

 

  e. One (1) two-inch (2”) conduit from Suite 1.5.1 to the East POP Room (“ Existing Pathway-E ”; together with Existing Pathway-A, Existing Pathway-B, Existing Pathway-C and Existing Pathway-D, collectively, the “ Existing Pathways ”).

One (1) Max-cell sleeve, as hereafter designated by Landlord, from the Datacenter Connection Area to the East POP Room, contained within in a shared four-inch (4”) conduit (the “ New Pathway-A ”).

Two (2) conduits, each being two inches (2”) to three inches (3”) in diameter, from Suite 1.14A to Suite 1.5.1 via pathway designated by Landlord (the “ New Pathway-B ”).

Two (2) conduits, each being two inches (2”) to three inches (3”) in diameter, from Suite 1.14A to Suite 1.5.2 via pathway designated by Landlord (the “ New Pathway-C ”; together, the New Pathway-A and the New Pathway-B, the “ New Pathways ”).

Effective as of the Commencement Date, the “Pathways” shall mean and refer to the Existing Pathways.

Effective as of the New Pathway Completion Date, and continuing through the expiration or earlier termination of the Suite 1.5 Term, the “Pathways” shall mean and refer to, collectively, the Existing Pathways and the New Pathways.

Effective as of the date that is one (1) day after the Suite 1.5 Expiration Date, and continuing through the expiration or earlier termination of the Term of this Lease, (a) the “Pathways” shall mean and refer to Existing Pathway-B, Existing Pathway-D, and the New Pathway, and (b) the “Existing Pathways” shall mean and refer to Existing Pathway-B and Existing Pathway-D.

Tenant shall be permitted to pull and/or install Cables in the Pathways. Tenant shall be limited in the number of Cables that may be pulled through said Pathways only by Applicable Law and by the physical constructs of such Pathways. Tenant is responsible for the costs and installation of all such Cables.

 

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EXHIBIT “D”

MASSACHUSETTS STATE LAW PROVISIONS

1. REMEDIES FOR EVENTS OF DEFAULT .

1.1 Landlord’s Right to Terminate Upon Tenant Default . This Lease and the Term and estate hereby granted and the demise hereby made are subject to the limitation that if and whenever any Event of Default shall occur, Landlord may, at Landlord’s option, in addition to all other rights and remedies given hereunder or by law or equity, do any one or more of the following without notice or demand other than a notice to quit, any such notice or demand being hereby waived other than a notice to quit:

1.1.1 Terminate this Lease, in which event Tenant shall immediately surrender possession of the Tenant Space to Landlord.

1.1.2 Enter upon and take possession of the Tenant Space and expel or remove Tenant and any other occupant therefrom, with or without having terminated this Lease.

1.1.3 Alter locks and other security devices at the Tenant Space.

1.1.4 Terminate any and all agreements, subleases, licenses, concessions or other consensual arrangements for possession entered into by Tenant, with Landlord or with third parties, and affecting the Tenant Space or any part of the Meet-Me Room or the Building.

1.2 No Surrender or Merger . Exercise by Landlord of any one or more remedies hereunder granted or otherwise available shall not be deemed to be an acceptance of surrender of all or any part of the Tenant Space by Tenant, whether by agreement or by operation of law, it being understood that such surrender can be effected only by the written agreement of Landlord and Tenant. No such alteration of security devices and no removal or other exercise of dominion by Landlord over the property of Tenant or others on or about the Tenant Space shall be deemed unauthorized or constitute a conversion, Tenant hereby consenting, after any termination of this Lease or entry for possession following delivery of a notice to quit from Landlord to Tenant, to the aforesaid exercise of dominion over Tenant’s property within the Building. All claims for damages by reason of such re-entry and/or possession and/or alteration of locks or other security devices are hereby waived, as are all claims for damages by reason of any distress warrant, forcible detainer proceedings, sequestration proceedings or other legal process. Tenant agrees that any re-entry by Landlord may be pursuant to judgment obtained in forcible detainer proceedings or other legal proceedings or without the necessity for any legal proceedings, as Landlord may elect, and Landlord shall not be liable in trespass or otherwise.

1.3 Damages Upon Default . If Landlord elects to terminate this Lease by reason of an Event of Default, then, notwithstanding such termination, Landlord may hold Tenant liable for all rental and other indebtedness accrued to the date of such termination, plus, at Landlord’s election, either:

(i) such rental and other indebtedness as would otherwise have been required to be paid by Tenant to Landlord during the period following termination of the Term of this Lease measured from the date of such termination by Landlord until the expiration of the Term of this Lease (had Landlord not elected to terminate this Lease on account of such Event of Default) diminished by any net sums thereafter received by Landlord through reletting the Tenant Space during said period (after deducting expenses incurred by Landlord as provided in Section 1.5 below), or

(ii) the amount (discounted to present value) by which, at the time of the termination of this Lease (or at any time thereafter if Landlord shall have initially elected damages under clause (i) above), (x) the aggregate of the rent and other charges projected over the period

 

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commencing with such termination and ending on the last day as of which the Term of the Lease would have expired, but for such Event of Default, exceeds (ii) the aggregate projected market rental value (including other charges) for the Tenant Space for such period.

Actions to collect amounts due by Tenant provided for in clause (i) of this Section 1.3 may be brought from time to time by Landlord during the aforesaid period, on one or more occasions, without the necessity of Landlord’s waiting until the expiration of such period, and in no event shall Tenant be entitled to any excess of rental (or rental plus other sums) obtained by reletting over and above the rental provided for in this Lease.

1.4 Repossession of Tenant Space . If Landlord elects to repossess the Tenant Space without terminating this Lease, Tenant shall be liable for and shall pay to Landlord all rental and other indebtedness accrued to the date of such repossession, plus Rent required to be paid by Tenant to Landlord during the remainder of the Term of this Lease until the expiration of the Term of this Lease, diminished by any net sums thereafter received by Landlord through reletting the Tenant Space during said period (after deducting expenses incurred by Landlord as provided in Section 1.5 below). In no event shall Tenant be entitled to any excess of any rental obtained by reletting over and above the rental herein reserved. Actions to collect amounts due by Tenant as provided in this Section 1.4 may be brought from time to time, on one or more occasions, without the necessity of Landlord’s waiting until the expiration of the Term of this Lease.

1.5 Landlord’s Expenses . Upon an Event of Default, Tenant shall also be liable for and shall pay to Landlord, in addition to any sum provided to be paid pursuant to this Lease: (i) the reasonable costs and expenses of securing new tenants, including expenses for refixturing, alterations and other costs in connection with preparing the Tenant Space for the new tenant and any reasonable or necessary alterations, (ii) the cost of removing and storing Tenant’s or other occupant’s property, and (iii) all reasonable expenses incurred by Landlord in enforcing Landlord’s remedies, including actual attorneys’ fees. Past due rental and other past due payments shall bear interest from maturity at the Default Rate (as defined in Section 3.5 of this Lease) until paid.

1.6 Cumulative Remedies; Equitable Relief. The specific remedies to which Landlord may resort under the provisions of this Lease are cumulative and are not intended to be exclusive of any other remedies or means of redress to which it may be lawfully entitled in case of any breach or threatened breach by Tenant of any provisions of this Lease.

1.7 Reletting . Landlord agrees to use reasonable efforts to relet the Tenant Space after Tenant vacates the Tenant Space in the event that the Lease is terminated following an Event of Default by Tenant hereunder. Marketing of the Tenant Space in a manner similar to the manner in which Landlord markets other premises within Landlord’s control in the Building shall be deemed to have satisfied Landlord’s obligation to use “reasonable efforts.” If such waiver is not effective under then applicable law or if Landlord otherwise elects, at Landlord’s sole option, to attempt to relet all or any part of the Tenant Space, Tenant agrees that, in any event, Landlord has no obligation to: (i) relet the Tenant Space prior to leasing any other space within the Building; or (ii) relet the Tenant Space (A) at a rental rate or otherwise on terms below market, as then determined by Landlord in its sole discretion; (B) to any entity not satisfying Landlord’s then standard financial credit risk criteria; (C) for a use (1) not consistent with Tenant’s use prior to default; (2) which would violate then applicable law or any restrictive covenant or other lease affecting the Building; (3) which would impose a greater burden upon the Building’s facilities; or (4) which would involve any use of Hazardous Materials not in compliance with applicable Legal Requirements; (iii) solicit or entertain negotiations with any other prospective tenants for the Tenant Space until Landlord obtains full and complete possession of the Tenant Space, including, without limitation, the final and unappealable legal right to re-let the Tenant Space free of any claim of Tenant; or (iv) make any alterations to the Tenant Space or the Building or otherwise incur any costs in connection with any such reletting, unless Tenant unconditionally delivers to Landlord, in good and sufficient funds, the full amount thereof in advance.

 

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1.8 Landlord’s Right to Cure . All covenants and agreements to be performed by Tenant under this Lease shall be performed by Tenant at Tenant’s sole cost and expense. If Tenant should fail to make any payment (other than Base Rent) or cure any default hereunder within the time herein permitted, Landlord, without being under any obligation to do so, without thereby waiving such default and in addition to and without prejudice to any other right or remedy of Landlord, may make such payment and/or remedy such other default for the account of Tenant (and enter the Tenant Space for such purpose), and thereupon Tenant shall be obligated to, and hereby agrees to, pay to Landlord as Additional Rent, within ten (10) days following Landlord’s demand therefor, all costs, expenses and disbursements (including actual attorneys’ fees) incurred by Landlord in taking such remedial action, plus an administrative fee of ten percent (10%) of such amount.

2. CALCULATION OF CHARGES . Landlord and Tenant are knowledgeable and experienced in commercial transactions and agree that the provisions set forth in this Lease for determining charges, amounts and additional rent payable by Tenant (including, without limitation, payments under Section 3.4) are commercially reasonable and valid even though such methods may not state a precise mathematical formula for determining such charges.

 

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EXHIBIT “E”

LANDLORD’S INSTALLATIONS

[Intentionally Omitted]

 

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EXHIBIT “F”

SERVICE LEVEL

Table A.

 

1.       Electricity Consumption Threshold :

  

Suite 1.5: 50 total kW (the “ ECT-Suite 1.5 ”)

 

Suite 1.5.1: 1 80 total kW (the “ ECT-Suite 1.5.1 ”)

 

Suite 1.5.2: 180 total kW (the “ECT-Suite 1.5.2”)

 

Suite 1.14A: 225 total kW (the “ ECT-Suite 1.14A ”)

 

2.       Target Battery Capacity :

  

Six (6) minutes.

 

3.       Back-Up Power Specifications :

  

Six (6) 2 MW shared paralleled Building generators in an N+1 configuration supply back-up power for the Premises.

 

4.       HVAC Specifications .

    
   

(a)     Target Temperature Range:

  

Average temperature of the Premises, measured at the return air vents in the Premises, between 68 degrees Fahrenheit and 78 degrees Fahrenheit.

 

(b)     Target Humidity Range :

   Average relative humidity of the Premises, measured at the return air vents in the Premises, between 35% and 55%.

Service Level – Terms.

 

1. Landlord’s Essential Services.

A. Electricity . Landlord shall (i) furnish electricity to Suite 1.5 sufficient to meet ECT-Suite 1.5, (ii) furnish electricity to Suite 1.5.1 sufficient to meet the ECT-Suite 1.5.1, (iii) furnish electricity to Suite 1.5.2 sufficient to meet the ECT-Suite 1.5.2, and (iv) furnish electricity to Suite 1.14A sufficient to meet the ECT-Suite 1.14A. The obligation of Landlord to provide electricity to the Premises shall be subject to the rules, regulations and requirements of the supplier of such electricity and of any governmental authorities regulating providers of electricity and shall be limited, except as expressly set forth in the next sentence, to providing power sufficient to meet the Electricity Consumption Threshold for each Suite. In addition, Landlord shall furnish back-up power for the Premises sufficient to meet the Back-Up Power Specifications. Landlord hereby represents that the Back-Up Power Specifications are sufficient to support the Datacenter’s designed IT and HVAC system loads during a utility power outage. Except for the Back-Up Power Specifications, Landlord shall have no obligation to provide emergency, supplemental or back-up power systems for use in the Premises, or otherwise in, or for, the Tenant Space.

B. HVAC . Landlord shall furnish HVAC to the Premises sufficient to cause the average temperature and humidity of the Premises (measured at the return air vents in the Premises) to meet the HVAC Specifications. The obligation of Landlord to provide HVAC to the Premises shall be limited to providing HVAC sufficient to meet the HVAC Specifications.

 

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2. Interruptions of Landlord’s Essential Services; Losses of Redundancy.

A. Outage Credits; and Partial Outage Credits.

(1) Upon the occurrence of each Separate/Independent Interruption of Landlord’s Essential Services, Tenant shall be entitled to an Outage Credit in the amount set forth opposite the duration of such Interruption of Landlord’s Essential Services in Table 2.A.(1)-A and 2.A.(1)-B, below, as applicable:

Table Related to the Calculation of Outage Credits (Table 2.A.(1)-A)

 

Interruption Duration:    Tenant’s Remedy:
0-1 hour   

The Level-1 Outage Credit(s) described in Table 2.A.(1)-B, below.

 

1hr, 1minute through 4 consecutive hours during which such Interruption of Landlord’s Essential Services occurs or continues   

One (1) Outage Credit in addition to Outage Credit(s) granted, above, for such Interruption for the 0-1 hour outage period.

 

4hrs, 1minute through 8 consecutive hours during which such Interruption of Landlord’s Essential Services occurs or continues   

One (1) Outage Credit in addition to the Outage Credits granted, above, for such Interruption for 0-1 hour outage period and 1-4 hour outage period.

 

8hrs, 1minute through 12 consecutive hours during which such Interruption of Landlord’s Essential Services occurs or continues   

One (1) Outage Credit in addition to Outage Credits granted, above, for such Interruption for 0-1 hour outage period, 1–4 hour outage period and 4-8 hour outage period.

 

Each twelve (12) hour period thereafter during which such Interruption of Landlord’s Essential Services occurs or continues.    One (1) Outage Credit in addition to Outage Credits granted, above, previously for such Interruption.

Table Describing the Level-1 Outage Credits (Table 2.A.(1)-B)

 

Interruption Occurrence:    Level-1 Outage Credit:

Each First Interruption.

 

   One (1) Outage Credit.

Each Second Interruption.

 

   Two (2) Outage Credits.

Each Third Interruption.

 

   Three (3) Outage Credits.

Each Four-Plus Interruption.

   Four (4) Outage Credits.

(2) Upon the occurrence of each Loss of Redundancy that occurs for at least one hundred sixty eight (168) consecutive hours (i.e., seven (7) full twenty-four (24) hour periods), Tenant shall be entitled to one-half (1/2) of an Outage Credit (each, a “ Partial Outage Credit ”) as set forth opposite the duration of such Loss of Redundancy in Table 2.A.(2), below:

Table Related to the Calculation of Partial Outage Credits (Table 2.A.(2))

 

Loss of Redundancy Duration:    Tenant’s Remedy:

One hundred sixty eight (168) consecutive hours.

 

   One Partial Outage Credit.
Each period of one hundred sixty eight (168) consecutive hours thereafter during which such Loss of Redundancy continues.    One (1) Partial Outage Credit in addition to the Partial Outage Credit granted, above, previously for such Loss of Redundancy.

 

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(3) In the event that Tenant is entitled to an Outage Credit or Partial Outage Credit, the Outage Credit or Partial Outage Credit, as applicable, shall be applied as a credit towards Tenant’s Base Rent due in the immediately following month of the Term; provided, however, in the event that an Outage Credit or Partial Outage Credit accrues during the final month of the Term, Landlord will pay to Tenant the amount of the Outage Credit or Partial Outage Credit within thirty (30) days following the expiration of the Term. For the avoidance of doubt, Landlord and Tenant acknowledge and agree that, in the event the Interruption of Landlord’s Essential Services and/or Loss of Redundancy affects fewer than all of the Suites, the Outage Credit(s) (or Partial Outage Credit, as applicable) to which Tenant is entitled shall be calculated based upon the Base Rent for the affected Suite(s) only.

(4) The foregoing notwithstanding, (a) the aggregate total of Outage Credits and Partial Outage Credits to which Tenant may become entitled in any calendar month shall not exceed Tenant’s total monthly Base Rent (at the time of the event); and (b) Tenant’s entitlement to, and accrual of, Outage Credits related to any Interruption – Electrical shall occur only from and after the point at which the aggregate duration of all Interruptions - Electrical for the applicable Suite during any rolling twelve (12) month period exceeds the Interruption – Electrical Duration Threshold.

B. Interruption Cure Completion Notice . Once Landlord has rectified a particular Interruption of Landlord’s Essential Services or Loss of Redundancy, Landlord shall provide the Interruption Cure Completion Notice to Tenant as soon as is reasonably practicable thereafter.

C. Performance Review The Tenant and Landlord will meet periodically at Tenant’s request, but no less than annually, to review the Landlord’s performance and compliance with the performance standards, as specified in this Exhibit.

 

3. Termination Rights.

A. Continuous Outage Termination Right. In the event of a Continuous Outage, Tenant may terminate this Lease by timely delivery of the Continuous Outage Termination Notice to Landlord. Tenant’s failure to timely deliver Tenant’s Continuous Outage Termination Notice shall automatically extinguish Tenant’s right to terminate this Lease with respect to that particular Continuous Outage. For the avoidance of doubt, Landlord and Tenant acknowledge and agree that Tenant’s right to terminate this Lease under this Section 3.A applies to the entire Tenant Space, and does not apply individually to the Suite in which the Continuous Outage occurred.

B. Chronic Outage Termination Right. In the event of a Chronic Outage, Tenant may terminate this Lease by timely delivery of the Chronic Outage Termination Notice to Landlord. Tenant’s failure to timely deliver Tenant’s Chronic Outage Termination Notice shall automatically extinguish Tenant’s right to terminate this Lease with respect to that particular Chronic Outage. For the avoidance of doubt, Landlord and Tenant acknowledge and agree that Tenant’s right to terminate this Lease under this Section 3.B applies to the entire Tenant Space, and does not apply individually to the Suite in which the Chronic Outage occurred.

4. Remedies Exclusive. Tenant agrees that Tenant’s entitlement to Outage Credits, Partial Outage Credits and termination rights, as expressly set forth in this Exhibit “F” , shall be Tenant’s sole and exclusive remedies with regard to each Interruption of Landlord’s Essential Services and/or Loss of Redundancy.

 

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EXHIBIT “G”

INTENTIONALLY DELETED

 

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EXHIBIT “H”

INTENTIONALLY DELETED

 

-1-


EXHIBIT “I”

INTENTIONALLY DELETED

 

-1-


EXHIBIT “J”

INTENTIONALLY DELETED

 

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EXHIBIT “K”

FORM OF MEMO OF LEASE

MEMORANDUM OF LEASE

Notice is hereby given pursuant to the laws of the Commonwealth of Massachusetts of a lease upon the following terms:

 

Date of Execution:                 , 20     
Landlord:    Digital 55 Middlesex, LLC, a Delaware limited liability company.
Tenant:    Constant Contact, Inc., a Delaware corporation.
Premises; Pathways:   

(i)

   Approximately 600 square feet of area in the Building (defined below), known as Suite 1.5;
  

(ii)

   Approximately 1800 square feet of area in the Building, known as Suite 1.5.1;
  

(iii)

   Approximately 2000 square feet of area in the Building, known as Suite 1.5.2;
  

(iv)

   Approximately 1200 square feet of area in the Building, known as Suite 1.14A (i – iv, collectively, the “Premises”);
  

(v)

   Two (2) two-inch (2”) conduits from Suite 1.5 to the West POP Room;
  

(vi)

   Two (2) three-inch (3”) conduits from Suite 1.5.2 to the West POP Room;
  

(vii)

   Two (2) three-inch (3”) conduits from Suite 1.5 to Suite 1.5.1;
  

(viii)

   Two (2) three-inch conduits from Suite 1.5.1 to Suite 1.5.2;
  

(ix)

   One (1) Max-cell sleeve, as hereafter designated by Landlord, from the Datacenter Connection Area to the East POP Room, contained within in a shared four-inch (4”) conduit;
  

(x)

   Two (2) conduits, each being two inches (2”) to three inches (3”) in diameter, from Suite 1.14A to Suite 1.5.1 via pathway designated by Landlord; and
  

(xi)

   Two (2) conduits, each being two inches (2”) to three inches (3”) in diameter, from Suite 1.14A to Suite 1.5.2 via pathway designated by Landlord (v – xi, collectively, the “Pathways”).
   The Premises and such Pathways are located within the “Building” known as 55 Middlesex Turnpike, Bedford, Massachusetts and more particularly described in the Lease, which Building is located on the land more particularly described on Exhibit 1 attached hereto.

 

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Term:    Approximately seventy-two (72) full calendar months (i.e., commencing on              , 2011, and expiring seventy-two (72) full calendar months thereafter, unless extended pursuant to the Lease).
Extension Option:    Two (2) Extension Options, each to extend the Term for an Extension Term of sixty (60) months each, subject to the terms and conditions of the Lease.

This Memorandum of Lease has been executed merely to give notice of the Lease, and all of the terms, conditions and covenants thereof which are incorporated herein by reference. The parties hereto do not intend this Memorandum of Lease to modify or amend the terms, conditions and covenants of the Lease.

 

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Executed as an instrument under seal as of the      day of              , 2011.

 

LANDLORD:       TENANT:
DIGITAL 55 MIDDLESEX, LLC,       Constant Contact, Inc., a Delaware corporation
a Delaware limited liability company  
By:    Digital Realty Trust, L. P.,  
   a Maryland limited partnership,  
   its member and manager  
   By:    Digital Realty Trust, Inc.,       By:  

 

      a Maryland corporation,       Name:  
      its general partner       Title:  
      By:  

 

       
      Name:          
      Title:          

 

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STATE OF                     

 

                     County, ss.

             , 20     

On this      day of              , 20      , before me, the undersigned notary public, personally appeared                      , the                      of Digital Realty Trust, Inc., a Maryland corporation which is the general partner of Digital Realty Trust, L.P., a Maryland limited partnership which is the member and manager of Digital 55 Middlesex, LLC, proved to me through satisfactory evidence of identification, which was                      , to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he signed it voluntarily for its stated purpose, as the                      of Digital Realty Trust, Inc., a Maryland corporation which is the general partner of Digital Realty Trust, L.P., a Maryland limited partnership which is the member and manager of Digital 55 Middlesex, LLC.

                                          (official signature and seal of notary)

My commission expires                                         

[Affix Seal]

 

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COMMONWEALTH OF MASSACHUSETTS

 

                     County, ss.

             , 20     

On this      day of              , 20      , before me, the undersigned notary public, personally appeared                      , the                      of Constant Contact, Inc., proved to me through satisfactory evidence of identification, which was                                           , to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he signed it voluntarily for its stated purpose, as the                      of Constant Contact, Inc.

                                          (official signature and seal of notary)

My commission expires                                         

[Affix Seal]

 

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EXHIBIT 1

Legal Description

 

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FIRST AMENDMENT TO DATACENTER LEASE

THIS FIRST AMENDMENT TO DATACENTER LEASE (this “ Amendment ”) is made and entered into as of (but not necessarily on) the latest date of execution shown on the signature page hereto (the “ 1A Effective Date ”), by and between DIGITAL 55 MIDDLESEX, LLC , a Delaware limited liability company (“ Landlord ”), and CONSTANT CONTACT, INC. , a Delaware corporation (“ Tenant ”).

W I T N E S S E T H:

WHEREAS , Landlord and Tenant have heretofore entered into that certain Datacenter Lease dated January 1, 2011 (the “ Lease ”), covering (i) certain pathway rights (the “ Pathway ”) and (ii) four (4) separately demised spaces, consisting, collectively, of approximately 5,600 square feet of caged area (collectively, the “ Original Premises ”), in that certain building (the “ Building ”) located at 55 Middlesex Turnpike, Bedford, Massachusetts;

WHEREAS , each capitalized term or phrase used in this Amendment shall have the same meaning as the meaning ascribed to such term or phrase in the Lease unless expressly otherwise defined in this Amendment;

WHEREAS , Landlord and Tenant desire to modify the terms of the Lease in accordance with the terms and conditions herein provided.

NOW, THEREFORE , for and in consideration of good and valuable consideration paid by each party hereto to the other, the receipt and sufficiency of which are hereby mutually acknowledged, Landlord and Tenant hereby agree as follows:

1. Naming Conventions .

A. Landlord and Tenant hereby acknowledge and agree that prior to the 1A Effective Date, Landlord has caused (i) Suite 1.14A in the Building to be renumbered to Suite 418A, (ii) Suite 1.5 in the Building to be renumbered to Suite 405, (iii) Suite 1.5.1 in the Building to be renumbered to Suite 407, and (iv) Suite 1.5.2 to be renumbered to Suite 409.

B. Accordingly, effective as of, and from and after, the 1A Effective Date, (i) all references in the Lease to “Suite 1.14A” are hereby deemed to be references to “Suite 418A”, (ii) all references in the Lease to “Suite 1.5” are hereby deemed to be references to “Suite 405”, (iii) all references in the Lease to “Suite 1.5.1” are hereby deemed to be references to “Suite 407”, and (iv) all references in the Lease to “Suite 1.5.2” are hereby deemed to be references to “Suite 409”. Suite 418A, as it exists on the 1A Effective Date, is also referred to in this Amendment as “ Original Suite 418A ”.


2. Premises .

A. Additional Premises . Effective as of June 1, 2012 (the “ 1A Expansion Date ”, Original Suite 418A is hereby expanded to include approximately 1,225 square feet of caged area approximately as shown on Exhibit “A-1” , attached hereto (the “ Suite 418A Expansion Space ”).

B. Amended Premises . Accordingly, effective as of, and from and after, the 1A Expansion Date:

(i) Suite 418A is hereby deemed to consist of Original Suite 418A together with the Suite 418A Expansion Space;

(ii) Exhibit “A” to the Lease is hereby deleted in its entirety and replaced by Exhibit “A-1-A” , attached hereto;

(iii) all references in the Lease to Exhibit “A” are hereby deemed to be references to Exhibit “A-1-A” ; and

(iv) Item 7 of the Basic Lease Information to the Lease is hereby amended and restated in its entirety as follows:

 

7.       Premises/Pathways :          
   

(a)    Premises:

   Landlord and Tenant acknowledge and agree that commencing on the Commencement Date, the Premises shall consist of the following four (4) separately demised spaces:
   
    

a.      Approximately 600 square feet of area in the Building, known as Suite 405 , caged as set forth on Exhibit “A-1-A” (“ Suite 405 ”).

   
    

b.      Approximately 1800 square feet of area in the Building, known as Suite 407 , caged as set forth on Exhibit “A-1-A” (“ Suite 407 ”).

   
    

c.      Approximately 2000 square feet of area in the Building, known as Suite 409 , caged as set forth on Exhibit “ A-1-A” (“ Suite 409 ”).

   
    

d.      Approximately 1200 square feet of area in the Building, known as Suite 418A , caged as set forth on Exhibit “A-1-A” (“ Suite 418A ”).

   
     As of June 1, 2012 (the “1A Expansion Date”), Suite 418A shall be deemed to have been expanded to 2,425 square feet of area in the Building, caged as set froth on Exhibit “A-1-A”.

 

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     As of the Suite 405 Surrender Date, Suite 405 shall be deemed to have been removed from the Premises. From and after the Suite 405 Surrender Date, throughout the balance of the Term of this Lease, the Premises shall consist of Suite 407 , Suite 409 and Suite 418A , collectively comprising approximately 6,225 square feet of area in the Building. From and after the Suite 405 Surrender Date, no Base Rent shall become due or payable with respect to Suite 405 and all future calculations of Ancillary Utility Costs, Generator Fuel Usage or any costs to Tenant under this Lease based on a proportionate share or allocation of leased space or usage shall reflect that Suite 405 shall be deemed to have been removed from the Premises.
   
     Each of Suite 405 , Suite 407 , Suite 409 and Suite 418A may be referred to herein, individually, as a “ Suite ”.
   

(b)     Pathways :

   As described on Exhibit “C” .

[ Emphasis added to show the changes to Item 7.]

C. Landlord’s Suite 418A Installations .

(i) Subject to Landlord’s completion of Landlord’s Suite 418A Installations (as defined on Exhibit “E-1” , attached hereto), Tenant hereby accepts the Suite 418A Expansion Space in its “AS IS, WHERE IS” condition on the 1A Expansion Date, without the benefit of a warranty of suitability or fitness for Tenant’s intended use. Landlord hereby agrees to cause the completion of Landlord’s Suite 418A Installations (as defined on Exhibit “E-1” , attached hereto) on or before the 1A Expansion Date. The foregoing notwithstanding, Landlord and Tenant acknowledge and agree that Landlord’s completion of Landlord’s Suite 418A Installations is not a condition precedent to any obligation of Tenant to pay Rent, nor is such completion a condition precedent to the occurrence of the 1A Expansion Date. Additionally, provided that Landlord is working diligently using commercially reasonable efforts after the 1A Expansion Date to complete the installation of Landlord’s Suite 418A Installations, Landlord shall not be in default of its obligation to complete Landlord’s Suite 418A Installations. For the avoidance of doubt, Landlord’s Suite 418A Installations are hereby deemed to be included in the definition of “Landlord’s Installations” for the purposes of Section 8.3.1 and 9.1.1 of the Lease.

(ii) Accordingly, effective as of, and from and after, the 1A Effective Date, the Original Lease is hereby amended to include Exhibit “E-1” attached hereto.

3. Service Levels . Effective as of, and from and after, the 1A Expansion Date, (a) Table A of Exhibit “F” to the Original Lease is hereby replaced by Table A-1 as set forth on Exhibit “F-1” , attached hereto and incorporated herein, and (b) all references in the Lease to Table A of Exhibit “F” are hereby deemed to mean and refer to Table A-1 of Exhibit “F-1” .

 

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4. Base Rent . Effective as of the 1A Expansion Date, Tenant hereby agrees to pay the following amounts to Landlord as additional Base Rent in connection with the lease of the Suite 418A Expansion Space (the “ Suite 418A Expansion Space Base Rent ”):

 

Period   Suite 418A Expansion Space Base Rent

June 1, 2012 – January 31, 2013 (months 18 – 25 of the Term)

  $0.00/month

February 1, 2013 – December 31, 2013 (months 26 –  36 of the Term)

  $41,496.00/month

January 1, 2014 – December 31, 2014 (months 37 – 48 of the Term)

  $42,741.00/month

January 1, 2015 – December 31, 2015 (months 49 – 60 of the Term)

  $44,023.00/month

January 1, 2016 – December 31, 2016 (months 61 – 72 of the Term)

  $45,344.00/month

5. Tenant Estoppel . Tenant hereby (a) acknowledges, to the best of Tenant’s knowledge, that Landlord is not in default under the Lease as of the date this Amendment is executed by Tenant, and (b) confirms, to the best of Tenant’s knowledge, that, as of the date this Amendment is executed by Tenant, Landlord has no outstanding obligations with respect to the Tenant Space that would, with the passage of time, the giving of notice, or both, result in Landlord being in default under the Lease.

6. Commissions . Tenant represents that it has dealt with no broker, agent or other person in connection with this Amendment, and that no broker, agent or other person brought about this Amendment. Tenant shall indemnify and hold Landlord harmless from and against any and all claims, losses, costs or expenses (including attorneys’ fees and expenses) by any broker, agent or other person claiming a commission or other form of compensation by virtue of having dealt with Tenant with regard to the transaction contemplated by this Amendment. The provisions of this paragraph shall survive the expiration of the Term of the Lease or any renewal or extension thereof.

7. Confidentiality . Notwithstanding anything to the contrary contained in the Lease, each party agrees that the terms and provisions of this Amendment are confidential and constitute proprietary information of the parties and shall be governed by Section 17.19 of the Lease as though the terms hereof were originally part of the Lease.

8. Miscellaneous .

A. In the event that the terms of the Lease conflict or are inconsistent with those of this Amendment, the terms of this Amendment shall govern.

B. The Lease is hereby amended as and where necessary, even though not specifically referred to herein, in order to give effect to the terms of this Amendment. Except as amended by this Amendment, the terms of the Lease shall remain in full force and effect.

C. Submission of this Amendment for examination does not constitute an offer, right of first refusal, reservation of, or option for any premises in the Building. This Amendment shall become effective only upon execution and delivery by both Landlord and Tenant.

 

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D. This Amendment may be executed simultaneously in two or more counterparts each of which shall be deemed an original, but all of which shall constitute one and the same Amendment. Landlord and Tenant agree that the delivery of an executed copy of this Amendment by facsimile or e-mail shall be legal and binding and shall have the same full force and effect as if an original executed copy of this Amendment had been delivered.

[Signature Page Follows]

 

-5-


IN WITNESS WHEREOF , Landlord and Tenant have caused this Amendment to be executed on the respective dates set forth below, to be effective as of the 1A Effective Date.

 

LANDLORD :
DIGITAL 55 MIDDLESEX, LLC,
a Delaware limited liability company
By:   Digital Realty Trust, L.P.,
  a Maryland limited partnership,
  its sole Member and Manager
  By:   Digital Realty Trust, Inc.,
    a Maryland corporation,
    its General Partner
    By:  

/s/ Robert W. Holmes

    Name:   Robert W. Holmes
    Its:   Vice President
  Date: May 11, 2012
TENANT :
CONSTANT CONTACT, INC.
a Delaware corporation
By:  

/s/ John Walsh

Name:   John Walsh
Title:   Senior Vice President, Engineering and Operations
Date:   May 10, 2012


EXHIBIT “A-1”

DEPICTION OF ORIGINAL SUITE 418A

AND

SUITE 418A EXPANSION SPACE

 

LOGO


EXHIBIT “A-1-A”

REVISED DEPICTION OF THE SUITES,

THE WEST POP ROOM, THE EAST POP ROOM

AND THE DATACENTER CONNECTION AREA

 

LOGO


EXHIBIT “E-1”

LANDLORD’S SUITE 418A INSTALLATIONS

Landlord shall cause:

 

    The removal of the Existing Suite 418A Cage Walls (as depicted on Exhibit “A-1” )

 

    The installation of a cage wall (the “ Suite 418A Expansion Space Cage Wall ”) substantially in the layout set forth on Exhibit “A-1”

 

    The installation of an electrical meter to monitor power consumption in the Suite 418A Expansion Space

The foregoing three (3) items are referred to herein as “ Landlord’s Suite 418A Installations ”.


EXHIBIT “F-1”

TABLE A-1

 

1.   Electricity Consumption Threshold :    Suite 405 : 50 total kW (the “ ECT- Suite 405 ”)
   
         Suite 407 : 180 total kW (the “ ECT- Suite 407 ”)
   
         Suite 409 : 180 total kW (the “ ECT- Suite 409 ”)
   
             Suite 418A : 380 total kW (the “ ECT- Suite 418A ”)
   
2.   Target Battery Capacity :    Six (6) minutes.
   
3.   Back-Up Power Specifications :    Six (6) 2 MW shared paralleled Building generators in an N+1 configuration supply back-up power for the Premises.
   
4.   HVAC Specifications .     
   
    (a)   Target Temperature Range:    Average temperature of the Premises, measured at the return air vents in the Premises, between 68 degrees Fahrenheit and 78 degrees Fahrenheit.
   
    (b)   Target Humidity Range :    Average relative humidity of the Premises, measured at the return air vents in the Premises, between 35% and 55%.

[ Emphasis added to show the changes to this Table.]


 

55 MIDDLESEX TURNPIKE

 

 

OFFICE SPACE RIDER

Between

DIGITAL 55 MIDDLESEX, LLC

as Landlord

and

CONSTANT CONTACT, INC.

as Tenant

Dated

May 11, 2012


SCHEDULE “1”

CERTAIN DEFINED TERMS

“Building Office Standard” shall mean and refer to the type, grade, quantity and design of materials and construction as are customarily utilized by Landlord in the Building for the construction of “garden-variety” office uses.

“Landlord” shall mean and refer to the Landlord set forth in Item 1 of the Basic Rider Information.

“Landlord’s OS Installations” shall mean and refer to the installations defined as such, as set forth on Exhibit “E” , attached hereto.

“Landlord’s OS Repair Obligations” shall mean and refer to Landlord’s obligations to arrange for the repair and maintenance of the foundation, exterior walls and roof of the Building; the Common Areas within the Building; and the HVAC systems serving the OS Premises and/or the Common Areas of the Building.

“Lease” shall mean that certain Datacenter Lease related to Suites 405, 407, 409, 418A in the Building, having an Effective Date of January 1, 2011, by and between Landlord and Tenant, as amended from time to time.

“Maximum Structural Load - OS” shall mean and refer to the Maximum Structural Load - OS set forth in Item 12 of the Basic Rider Information.

“New OS Tenant Space” shall mean the premises to which the OS Tenant Space is being relocated and re-assigned pursuant to Section 1.4 of the Standard Rider Provisions.

“OS Base Rent” shall mean and refer to the amounts of OS Base Rent set forth in Item 6 of the Basic Rider Information.

“OS Demising Walls” shall mean and refer to Building Office Standard drywall office demising walls.

“OS Electrical Metering Equipment” shall mean and refer to a Building Office Standard electrical metering device (or electrical metering devices) compatible with Landlord’s energy management system for monitoring electricity provided to and/or used in the OS Tenant Space.

“OS Electricity Consumption Threshold” shall mean and refer to the amount of electrical power specified in Item 11 of the Basic Rider Information.

“OS Permitted Use” shall mean and refer to the OS Tenant Space being used only for general office purposes in accordance with Applicable Law.

“OS Rider Term” shall mean and refer to the period described in Item 4 of the Basic Rider Information, subject to the terms of such Item 4.

“OS Rules and Regulations” shall mean and refer to Landlord’s rules and regulations for the OS Tenant Space, as same may be amended from time to time by Landlord in Landlord’s reasonable discretion.

“OS Tenant Space” shall mean and refer to the OS Tenant Space set forth in Item 5 of the Basic Rider Information.

“Tenant” shall mean and refer to the Tenant set forth in Item 2 of the Basic Rider Information.

 

-i-


55 MIDDLESEX TURNPIKE

OFFICE SPACE RIDER

This Office Space Rider (this “ Rider ”) is entered into as of the OS Effective Date by and between Landlord and Tenant with reference to the following:

R E C I T A L S

A. Tenant leases Tenant Space in the Building from Landlord pursuant to the Lease.

B. Landlord desires to lease to Tenant certain office space within the Building and Tenant desires to lease such space, pursuant to the terms and conditions of this Rider.

C. Unless otherwise specifically indicated to the contrary, all initially capitalized terms contained in this Rider shall have the meanings set forth on Schedule “1” , attached to this Rider. All initially capitalized terms contained in this Rider, but not otherwise defined in this Rider, shall have the meanings ascribed to them in the Lease.

NOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth, Landlord and Tenant agree to the following terms of this Rider, which shall supplement the Lease as of the OS Effective Date:

BASIC RIDER INFORMATION

 

1.       Landlord :

   Digital 55 Middlesex, LLC, a Delaware limited liability company
   

2.       Tenant :

   Constant Contact, Inc., a Delaware corporation
   

3.       OS Effective Date/OS Commencement Date :

    
   

a.       OS Effective Date :

   May 11, 2012, being the latest of the parties’ respective dates of execution of this Rider, as set forth on the signature page of this Rider (and which date shall be inserted in this Item 3 by Landlord, upon Landlord’s counter-execution of this Rider).
   

b.       OS Commencement Date :

   June 1, 2012
   

4.       OS Rider Term :

   Commencing on the OS Commencement Date and continuing until the expiration or earlier termination of the term of the Lease (as same may be extended or reduced from time to time in accordance with the terms of the Lease), such that the OS Rider Term shall be coterminous with the Term of the Lease.
   

5.       OS Tenant Space :

   Approximately 135 square feet in Suite 317 on the first (1st) floor of the Building, as depicted on the diagram of the OS Tenant Space contained on Exhibit “A” , attached hereto.
   

6.       OS Base Rent :

   $0.00 per month during the OS Rider Term
   

7.       Intentionally Deleted .

   Intentionally Deleted.
   

8.       Intentionally Deleted .

   Intentionally Deleted.

 

-i-


   

9.       Intentionally Deleted .

   Intentionally Deleted.
   

10.     Intentionally Deleted .

   Intentionally Deleted.
   

11.     OS Electricity Consumption Threshold:

   1 total kW for lighting and below ceiling convenience power.
   

12.     Maximum Structural Load - OS :

   One hundred fifty (150) pounds of live load per square foot.
   

13.     OS Rules and Regulations :

   The current version of the OS Rules and Regulations is attached hereto as Exhibit “G” .

This Rider shall consist of the foregoing Basic Rider Information, and the provisions of the Standard Rider Provisions below “ Schedule 1”, above, and Exhibits A ” through “ G ”, all of which are incorporated herein by this reference as of the OS Effective Date. In the event of any conflict between the provisions of the Basic Rider Information and the provisions of the Standard Rider Provisions, the Basic Rider Information shall control.

[no further text on this page]

 

-ii-


STANDARD RIDER PROVISIONS

1. OS TENANT SPACE.

1.1 OS Tenant Space . Upon and subject to the terms and conditions of this Rider, the Lease is hereby modified to reflect that Landlord does hereby lease, demise and let unto Tenant and Tenant does hereby lease from Landlord the OS Tenant Space, to have and to hold for the OS Rider Term.

1.2 Condition of OS Tenant Space . Tenant agrees that, subject to Landlord’s completion of Landlord’s OS Installations, Tenant shall be deemed to have accepted the OS Tenant Space in its “AS IS, WHERE IS” condition on the OS Commencement Date. Except for Landlord’s OS Installations, Landlord shall have no obligation to perform any work in the OS Tenant Space (including, without limitation, demolition of any improvements existing therein or construction of any tenant finish-work or other improvements therein), and Landlord shall not be obligated to reimburse Tenant or provide an allowance for any costs related to the demolition or construction of improvements therein. Tenant acknowledges that, except as expressly set forth herein, no representation or warranty (express or implied) has been made by Landlord as to the condition of the OS Tenant Space or its suitability or fitness for Tenant’s intended purpose.

1.3 Delivery of OS Tenant Space . Landlord shall use commercially reasonable efforts to cause Landlord’s OS Installations to be completed prior to the OS Commencement Date. In the event, however, that Landlord’s OS Installations have not been completed by the OS Commencement Date, Landlord shall not be deemed in default hereunder, provided that Landlord is working diligently using commercially reasonable efforts after the OS Commencement Date to complete the installation of Landlord’s OS Installations.

1.4 Rights Reserved to Landlord . Landlord reserves the right to relocate the OS Tenant Space to some other space of Landlord’s choosing of approximately the same dimensions and size within the Building without effecting an eviction or disturbance of Tenant’s use or possession or giving rise to any claim for setoffs or abatement of OS Base Rent due under this Rider; provided, however, that if Landlord exercises Landlord’s option to remove and relocate Tenant in the New OS Tenant Space, then Tenant shall be required to pay the same per square foot rates of OS Base Rent, as is represented in this Rider. Nothing herein contained shall be construed to relieve Tenant, or imply that Tenant is relieved, of the liability for or obligation to pay any additional rental due by reason of any of the other provisions of this Rider, which provisions shall be applied to the New OS Tenant Space. Tenant agrees that Landlord’s exercise of Landlord’s option to remove and relocate Tenant shall not terminate the Lease or this Rider or release Tenant, in whole or in part, from Tenant’s obligation to pay the rental and perform the covenants and agreements hereunder for the full OS Rider Term. In the event of any such relocation, this Rider shall continue in full force and effect with no change in the terms, covenants or conditions hereof other than the substitution of the New OS Tenant Space for the OS Tenant Space. Upon request from Landlord, Tenant shall execute an amendment to this Rider reflecting the aforesaid change. Landlord agrees that the New OS Tenant Space shall be decorated by Landlord at Landlord’s sole cost and expense. Landlord shall have the right, in Landlord’s sole discretion, to use such decorations and materials from the OS Tenant Space, or other materials, so that the New OS Tenant Space shall be comparable in its interior design and decoration to the OS Tenant Space. Landlord shall use commercially reasonable efforts to effect such relocation or reconfiguration in a manner that minimizes to the extent practical any interruption or adverse effect on Tenant’s operations in the OS Tenant Space. Landlord shall provide Tenant no less than thirty (30) calendar days’ prior notice of all such relocations or reconfigurations. Following receipt of such notice, if said relocation or reconfiguration requires the movement of any of Tenant’s equipment or property, Tenant shall relocate Tenant’s equipment or property to the new location within the Building which is designated by Landlord and reasonably acceptable to Tenant. Landlord shall reimburse Tenant for all of the reasonable, out-of-pocket costs actually incurred by Tenant in so relocating its equipment or property. Tenant’s right to reimbursement to the extent provided above in this Section 1.4 shall be Tenant’s sole remedy in the event Landlord elects to relocate the OS Tenant Space, and Tenant shall not be entitled to any additional compensation or damages for loss of, or interference with, Tenant’s business or use or access of all or any part of the OS Tenant Space resulting from such relocation.

 

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2. OS RIDER TERM . The term of this Rider, and Tenant’s obligation to pay OS Base Rent and other sums due under this Rider, if any, shall commence on the OS Commencement Date and shall continue in effect for the OS Rider Term, unless this Rider is earlier terminated as provided herein.

3. OS BASE RENT AND OTHER CHARGES .

3.1 OS Base Rent . Commencing on the OS Commencement Date, Tenant shall pay OS Base Rent for the OS Tenant Space in the amounts set forth in Item 6 of the Basic Rider Information, above. The OS Base Rent shall be paid in monthly installments in advance on the first day of each and every calendar month concurrently with, and in the same manner, that Base Rent is paid under the Lease. Except as provided above, Tenant shall not pay any installment of Rent more than one (1) month in advance.

3.2 Intentionally Deleted .

3.3 OS Base Rent and Charges . The OS Base Rent and all other charges under this Rider are in addition to, and not in lieu of, Base Rent and all other charges under the Lease, and shall constitute Rent under the Lease. For the avoidance of doubt, Tenant acknowledges and agrees that all Rent due under this Rider shall be subject to the terms of Section 3.4 of the Standard Lease Provisions of the Lease.

3.4. Intentionally Deleted .

3.5. Electrical Power .

3.5.1 Landlord shall furnish electricity to the OS Tenant Space in the amount of the OS Electricity Consumption Threshold set forth in Item 11 of the Basic Rider Information of this Rider. The obligation of Landlord to provide electricity to the OS Tenant Space shall be subject to the rules, regulations and requirements of the supplier of such electricity and of any governmental authorities regulating providers of electricity and shall be limited to providing the OS Electricity Consumption Threshold. Landlord shall have no responsibility to provide Back-Up Power for use in the OS Tenant Space.

3.5.2 Electricity Provided . Tenant’s electricity consumption for the OS Tenant Space is included in the OS Base Rent set forth in Item 6 of the Basic Rider Information.

3.6. OS Electricity Consumption Threshold . Tenant’s actual electricity consumption for the OS Tenant Space, as reasonably determined by Landlord pursuant to such measurement method or methods as Landlord shall employ from time to time (including, without limitation, the use of the OS Electrical Metering Equipment and/or pulse meters, electrical surveys and/or engineer’s estimates), shall not at any time, exceed the OS Electricity Consumption Threshold. The electrical power drawn by all equipment (belonging to Tenant or otherwise) located within the OS Tenant Space shall be included in the calculation of Tenant’s actual electricity consumption for the OS Tenant Space. In the event that the power consumption in the OS Tenant Space exceeds the OS Electricity Consumption Threshold, Tenant agrees to take immediate action to cause power consumption in the OS Tenant Space to be at or below the OS Electricity Consumption Threshold.

3.7. Maximum Structural Load - OS . Tenant shall not place a load upon the OS Tenant Space exceeding the Maximum Structural Load - OS.

4. USE.

4.1 OS Permitted Use . The OS Tenant Space may be used only for the OS Permitted Use. Tenant shall not use any portion of the OS Tenant Space as a datacenter or telecommunications facility or similar use. If Tenant uses all or any portion of the OS Tenant Space for

 

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any use other than the OS Permitted Use, in addition to all other rights and remedies given Landlord hereunder or by law or in equity, the Tenant shall be required to pay monthly, as Additional Rent, an amount equal to the product of the number of rentable square feet in the OS Tenant Space multiplied by the monthly base rental rate then being quoted by Landlord to prospective tenants for space in the Building to be used as a datacenter or a telecommunications facility.

4.2 OS Tenant Space Access . Subject to all of the terms and conditions of this Rider and the Lease, Tenant shall quietly have, hold and enjoy the OS Tenant Space without hindrance from Landlord or any person or entity claiming by, through or under Landlord. Subject to the terms and conditions of the Lease and this Rider (including, without limitation, the OS Rules and Regulations), Landlord’s Access Control Systems and Force Majeure, Tenant shall have access to the OS Tenant Space twenty-four (24) hours per day, seven (7) days per week. Tenant and its Tenant Parties shall comply with the OS Rules and Regulations. Tenant acknowledges that Landlord may revise the OS Rules and Regulations from time to time.

4.3 Services to be Provided by Landlord . Subject to the OS Rules and Regulations, Landlord shall furnish Tenant, at Landlord’s expense, while Tenant is occupying the OS Tenant Space and is not in default hereunder, the following services during the OS Rider Term:

(1) Air conditioning and heating in season, Monday through Friday from 8:00 a.m. to 6:00 p.m., and on Saturday from 9:00 a.m. to 1:00 p.m., at such temperatures and in office-use standard amounts for the Building, but such service on Saturday after 1:00 p.m., Sundays and holidays to be furnished only upon the request of Tenant, who shall bear the cost thereof. Tenant acknowledges that such service and temperature may be subject to change by local, county, state or federal regulation. Whenever machines or equipment that generate abnormal heat are used in the OS Tenant Space which affect the temperature otherwise maintained by the air conditioning system, Landlord shall have the right to install supplemental air conditioning in the OS Tenant Space, and the cost thereof, including the cost of installation, operation, use and maintenance, shall be paid by Tenant to Landlord as Additional Rent upon demand.

(2) Water at those points of supply provided for general use.

(3) Janitor service in and about the Building, and the OS Tenant Space, as may in the judgment of Landlord be reasonably required; however, Tenant shall pay the additional costs attributable to the cleaning of improvements within the OS Tenant Space other than building standard improvements.

(4) Intentionally Deleted.

(5) Replacement of fluorescent lamps in the building standard ceiling mounted fixtures installed by Landlord and incandescent bulb replacement in all public areas; provided, however, that if Landlord determines that a building standard ceiling mounted fixture is not accessible to Landlord, Landlord shall furnish the fluorescent lamps to Tenant and Tenant shall be responsible, at its cost, for replacing such lamps.

4.4 Interruption of Services . Landlord shall not be liable or responsible to Tenant for any loss, damage or expense of any type which Tenant may sustain or incur if the quantity or character of the utility provided electric service to the OS Tenant Space is changed, is no longer available, or is no longer suitable for Tenant’s requirements. No interruption or malfunction of any electrical or other service (including, without limitation, HVAC) to the OS Tenant Space (or to any other portion of the Building or Property) shall, in any event, (i) constitute an eviction or disturbance of Tenant’s use and possession of the OS Tenant Space, (ii) constitute a breach by Landlord of any of Landlord’s obligations under the Lease or this Rider, (iii) render Landlord liable for damages of any type or entitle Tenant to be relieved from any of Tenant’s obligations under the Lease or this Rider (including the obligation to pay OS Base Rent, Additional Rent, or other charges), (iv) grant Tenant any right of setoff or recoupment, (v) provide Tenant with any right to terminate the Lease or this Rider, or (vi) make Landlord liable for any injury to or

 

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interference with Tenant’s business or any punitive, incidental or consequential damages (of any type), whether foreseeable or not, whether arising from or relating to the making of or failure to make any repairs, alterations or improvements, or whether arising from or related to the provision of or failure to provide for or to restore any service in or to any portion of the OS Tenant Space, the Property, or the Building. In the event of any interruption, however, Landlord shall employ commercially reasonable efforts to restore such service or cause the same to be restored in any circumstances in which such restoration is within the reasonable control of Landlord.

5. MAINTENANCE; ALTERATIONS.

5.1 Landlord’s Maintenance . Aside from Landlord’s OS Repair Obligations, Landlord shall have no repair and maintenance obligations in connection with the OS Tenant Space. Subject to Section 6 below, Landlord shall be responsible for Landlord’s OS Repair Obligations, all as necessary to maintain such elements of the Building and the OS Tenant Space in a first class, clean, and safe condition. In the event that the OS Tenant Space becomes in need of repairs which are within Landlord’s OS Repair Obligations, Tenant shall give immediate notice to Landlord of the nature of such repair needs; and Landlord shall cause such repairs to be completed within thirty (30) days after such request, or such additional reasonable period of time as is reasonably necessary to repair such condition(s).

5.2 Tenant’s Maintenance . Aside from Landlord’s OS Repair Obligations, during the OS Rider Term, Tenant shall, at Tenant’s sole cost and expense, maintain the OS Tenant Space and Tenant’s property, fixtures and equipment therein in clean, safe and good condition, in as good condition as when Tenant took possession, ordinary wear and tear excepted. If Tenant fails to perform its covenants of maintenance and repair hereunder, or if Tenant or any of Tenant’s technicians or representatives physically damages the OS Tenant Space, the personal property of any other tenant or anything else in the Building or the Property, Landlord may, but shall not be obligated to, perform all necessary or appropriate maintenance and repair, and any amounts expended by Landlord in connection therewith, plus an administrative charge of ten percent (10%), shall be reimbursed by Tenant to Landlord as Additional Rent upon demand.

5.3 Alterations; Fixtures .

5.3.1 Tenant will make no alteration, change, improvement, repair, replacement or physical addition in or to the OS Tenant Space or the Building without the prior written consent and approval of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. All materials introduced into the OS Tenant Space and/or the Property must be consented to in advance by Landlord. All cable installed in the OS Tenant Space and/or otherwise at the Property must be plenum rated. If such prior written consent of Landlord is granted, the work in such connection shall be at Tenant’s expense by workmen and contractors approved in advance in writing by Landlord and in a manner and upon terms and conditions and at times that are reasonably satisfactory to and reasonably approved in advance in writing by Landlord. In any instance where Landlord grants such consent, Landlord may grant such consent contingent and conditioned upon Tenant’s contractors, laborers, materialmen and others furnishing labor or materials for Tenant’s job working in harmony and not interfering with any labor utilized by Landlord, Landlord’s contractors or mechanics or by any other tenant or such other tenant’s contractors or mechanics; and if at any time such entry by one (1) or more persons furnishing labor or materials for Tenant’s work shall cause disharmony or interference for any reason whatsoever without regard to fault, the consent granted by Landlord to Tenant may be withdrawn at any time upon written notice to Tenant.

5.3.2 Tenant shall remove Tenant’s trade fixtures, office supplies and movable office furniture and equipment not attached to the Building prior to the expiration of the OS Rider Term. All other property in the OS Tenant Space and any alteration or addition to the OS Tenant Space (including wall-to-wall carpeting, paneling or other wall covering) and any other article attached or affixed to the floor, wall or ceiling of the OS Tenant Space or the Building shall, upon such expiration or termination, become the property of Landlord, shall be surrendered in good condition, normal wear and tear excepted, and shall remain upon, and be surrendered with, the OS Tenant Space or the Building, as applicable, as part thereof at the expiration of the OS Rider Term, Tenant hereby waiving all rights to any payment or compensation therefor; provided, however, that Tenant shall, in any event, remove all cabling,

 

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including, without limitation, telephone and computer cabling, installed in the OS Tenant Space and/or the risers of the Building in connection with Tenant’s lease of the OS Tenant Space. If, however, Landlord so requests in writing, Tenant will, prior to the termination of this Rider, remove in a good and workmanlike manner any and all alterations, additions, fixtures, equipment and property placed or installed by Tenant in or about the OS Tenant Space and/or the Building, including, without limitation, above ceiling alterations, and will repair any damage occasioned by such removal.

6. MISCELLANEOUS.

6.1 Incorporation; Amendment; Merger . The OS Tenant Space shall be deemed to be a part of the Tenant Space under the Lease for the purposes of Sections 4.1, 6.3.1, 6.3.2, 8.4, 9, 10, 13, 14 and 15. This Rider, along with any exhibits and attachments or other documents referred to herein, all of which are hereby incorporated into this Rider by this reference, constitutes the entire and exclusive agreement between Landlord and Tenant relating to the OS Tenant Space, and each of the aforementioned documents may be altered, amended or revoked only by an instrument in writing signed by the party to be charged thereby. All prior or contemporaneous oral or written agreements, understandings and/or practices relative to the leasing or use of the OS Tenant Space are merged herein or revoked hereby. This Rider is hereby incorporated into the Lease by this reference.

6.2 Effectiveness of Rider . This Rider shall not be binding or effective until the parties have executed and delivered an original or counterpart hereof to each other.

6.3 Authority . Landlord and Tenant hereby represent to one another that the persons executing this Rider on behalf of Landlord and Tenant are duly authorized to execute and deliver this Rider pursuant to their respective by-laws, operating agreement, resolution or other legally sufficient authority. Further, Landlord and Tenant represent to one another that (i) if it is a partnership, the undersigned are all of its general partners, (ii) it has been validly formed or incorporated, (iii) it is duly qualified to do business in the state in which the Property is located, and (iv) this Rider is being executed on its behalf and for its benefit.

6.4 Counterparts; Delivery by Facsimile or E-mail . This Rider may be executed simultaneously in two or more counterparts each of which shall be deemed an original, but all of which shall constitute one and the same Rider. Landlord and Tenant agree that the delivery of an executed copy of this Rider by facsimile or e-mail shall be legal and binding and shall have the same full force and effect as if an original executed copy of this Rider had been delivered.

6.5 Confidentiality . Each party agrees that (i) the terms and provisions of this Rider are confidential and constitute proprietary information of the parties; and (ii) as such, the terms and provisions of this Rider are, and shall be, subject to the terms of Section 17.19 of the Lease.

[SIGNATURES APPEAR ON NEXT PAGE]

 

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IN WITNESS WHEREOF, the parties hereto have duly executed this Rider on the respective dates set forth below to be effective as of the OS Effective Date.

 

LANDLORD :

DIGITAL 55 MIDDLESEX, LLC,

a Delaware limited liability company

By:   Digital Realty Trust, L.P.,
  a Maryland limited partnership,
  its sole member and manager
  By:   Digital Realty Trust, Inc.,
    a Maryland corporation,
    its general partner
    By:  

/s/ Robert W. Holmes

    Name:   Robert W. Holmes
    Its:   Vice President
Date:   May 11, 2012
TENANT :

CONSTANT CONTACT, INC.,

a Delaware corporation

By:  

/s/ John Walsh

Name:   John Walsh
Title:   Senior Vice President, Engineering and Operations
Date:   May 10, 2012

 

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EXHIBIT “A”

DEPICTION OF OS TENANT SPACE

 

LOGO


EXHIBIT “B”

INTENTIONALLY DELETED


EXHIBIT “C”

INTENTIONALLY OMITTED


EXHIBIT “D”

INTENTIONALLY OMITTED


EXHIBIT “E”

LANDLORD’S OS INSTALLATIONS

Landlord agrees to cause:

1. The OS Demising Walls to be constructed in the OS Tenant Space, approximately as set forth on Exhibit “A” attached hereto.*

2. The OS Demising Walls to be painted with Building Office Standard type, color and quantity of paint.*

3. Building Office Standard flooring to be installed in the OS Tenant Space.*

4. Card reader for access to the OS Tenant Space (same specifications as contemplated under Exhibit E to the Lease).*

 

* Landlord agrees to complete Landlord’s OS Installations at Landlord’s sole cost and expense; provided, however, in the event that Tenant requests changes to the foregoing description of Landlord’s OS Installations (including any request for other than “Building Office Standard” materials, design and/or quantity), Tenant shall bear the incremental costs related to all such change requests, and shall pay the same to Landlord within thirty (30) days after Tenant’s receipt of an invoice therefor from Landlord.


EXHIBIT “F”

INTENTIONALLY DELETED


EXHIBIT “G”

OS RULES AND REGULATIONS

1. Upon termination of this Rider, Tenant agrees to return all keys to Landlord.

2. Tenant shall refer all contractors, contractor’s representatives and installation technicians rendering any service to Tenant, to Landlord for Landlord’s supervision, approval and control before performance of any contractual service. This provision shall apply to all work performed in the Building, including, without limitation, installation of telephones, telegraph equipment, electrical devices and attachments and installations of any nature affecting floors, walls, woodwork, trim, windows, ceilings, equipment or any other physical portion of the Building.

3. Movement in and out of the Building of furniture, office equipment or other bulky materials, or movement through Building entrances or lobby, or dispatch or receipt by Tenant of any merchandise or materials which requires use of elevators or stairways shall be restricted to hours designated by Landlord. All such movement shall be under supervision of Landlord and in the manner agreed between Tenant and Landlord by prearrangement before performance of any such movement. Such prearrangements initiated by Tenant shall include determination by Landlord, and subject to Landlord’s decision and control, of the time, method and routing of movement, and limitations imposed by safety or other concerns which may prohibit any article, equipment or any other item from being brought into the Building. Tenant shall assume all risk as to damage to articles moved and injury to persons or public engaged or not engaged in such movement, including equipment, property and personnel of Landlord if damaged or injured as a result of acts in connection with carrying out this service for Tenant from the time of entering property to completion of work.

4. No signs, advertisements or notices shall be allowed in any form on windows or doors inside or outside the OS Tenant Space or any other part of the Building, and no signs except in uniform location and uniform styles fixed by Landlord shall be permitted on exterior identification pylons, if any, in the public corridors or on corridor doors or entrances to the OS Tenant Space. All signs shall be contracted for by Landlord for Tenant at the rate fixed by Landlord from time to time, and Tenant shall be billed and pay for such service accordingly upon demand.

5. No draperies, shutters, or other window covering shall be installed on exterior windows or walls or windows and doors facing public corridors without Landlord’s written approval. Landlord shall have the right to require installation and continued use of uniform window covering for such windows.

6. No portion of the OS Tenant Space or any other part of the Building shall at any time be used or occupied as sleeping or lodging quarters.

7. Tenant shall not place, install or operate in the OS Tenant Space or in any other part of the Building any machinery or conduct mechanical operations, or place or use in or about the OS Tenant Space any explosives, gasoline, kerosene, oil, acids, caustics or any other inflammable, explosive or hazardous materials, fluid or substance without the prior written consent of Landlord.

8. Landlord shall not be responsible for lost or stolen personal property, equipment, money or jewelry from the OS Tenant Space or public rooms regardless of whether such loss occurs when any such area is locked against entry or not.

9. No birds or animals shall be brought into or kept in or about the OS Tenant Space or any other part of the Building.

10. None of the entries, sidewalks, vestibules, elevator shafts, passages, doorways or hallways and similar areas shall be blocked or obstructed, or any rubbish, litter, trash or material of any nature placed, emptied or thrown into such areas, or such areas be used at any time for any purpose except for ingress or egress by Tenant, Tenant’s agents, employees or invitees to and from the OS Tenant Space and for going from one to another part of the Building.


11. Tenant and Tenant’s employees, agents and invitees shall observe and comply with the driving and parking signs and markers on the premises or parking facilities surrounding the Building.

12. Landlord shall have the right to prescribe the weight and position of safes, computers and other heavy equipment which shall, in all cases, in order to distribute their weight, stand on supporting devices approved by Landlord. All damage done to the OS Tenant Space or to the Building by placing in or taking out any property of Tenant, or done by Tenant’s property while in the OS Tenant Space or the Building, shall be repaired immediately at the sole expense of Tenant.

13. Plumbing fixtures and appliances shall be used only for purposes for which constructed, and no sweeping, rubbish, rags or other unsuitable material shall be thrown or placed therein. Damage resulting to any such fixtures or appliances from misuse by Tenant, or Tenant’s agents or employees shall be paid by Tenant, and Landlord shall not in any case be responsible therefor.

14. Tenants on multi-tenant floors shall keep all entrance doors to the OS Tenant Space closed at all times.

15. Landlord reserves the right to rescind any of these rules and make such other and further reasonable rules and regulations as in Landlord’s judgment shall from time to time be needful for the safety, protection, care and cleanliness of the Building, the operation thereof, the preservation of good order therein, and the protection and comfort of its tenants, their agents, employees and invitees, which rules when made and notice thereof given to a tenant shall be binding upon such tenant in like manner as if originally prescribed.


SECOND AMENDMENT TO DATACENTER LEASE

THIS SECOND AMENDMENT TO DATACENTER LEASE (this “ Amendment ”) is made and entered into as of (but not necessarily on) the latest date of execution shown on the signature page hereto (the “ 2A Effective Date ”), by and between DIGITAL 55 MIDDLESEX, LLC , a Delaware limited liability company (“ Landlord ”), and CONSTANT CONTACT, INC. , a Delaware corporation (“ Tenant ”).

W I T N E S S E T H:

WHEREAS , Landlord and Tenant have heretofore entered into that certain Datacenter Lease dated January 1, 2011 (the “ Original Lease ”), as amended by that certain First Amendment to Datacenter Lease dated May 11, 2012 (“ 1A ”; the Original Lease, as amended by 1A, the “ TKD Lease ”), covering (i) certain pathway rights (the “ Pathways ”) and (ii) three (3) separately demised spaces, consisting of (a) approximately 1,800 square feet of space, known as Suite 407, (b) approximately 2,000 square feet of space, known as Suite 409, and (c) approximately 2,425 square feet of space, known as Suite 418A (collectively, the “ Original Premises ”), in that certain building (the “ Building ”) located at 55 Middlesex Turnpike, Bedford, Massachusetts;

WHEREAS , Landlord and Tenant entered into that certain Office Space Rider dated May 11, 2012 (the “ OS Rider ”; together with the TKD Lease, collectively, the “ Lease ”), which supplements the TKD Lease, covering approximately 135 square feet of office space in Suite 317 of the Building (the “ OS Tenant Space ”);

WHEREAS , each capitalized term or phrase used in this Amendment shall have the same meaning as the meaning ascribed to such term or phrase in the Lease unless expressly otherwise defined in this Amendment;

WHEREAS , Landlord and Tenant desire to further modify the terms of the Lease in accordance with the terms and conditions herein provided.

NOW, THEREFORE , for and in consideration of good and valuable consideration paid by each party hereto to the other, the receipt and sufficiency of which are hereby mutually acknowledged, Landlord and Tenant hereby agree as follows:

1. Premises .

A. Surrender of Suite 407 and Suite 409 . Currently, the “Premises” consists of the Original Premises only. Landlord and Tenant hereby agree that (i) effective as of May 31, 2016 (the “ Suite 407 Surrender Date ”), Tenant shall surrender to Landlord possession of Suite 407 of the Original Premises, as depicted on Exhibit “A-1-A” of 1A, and (ii) effective

 

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as of June 30, 2018 (the “ Suite 409 Surrender Date ”), subject to extension pursuant to the terms of this Amendment, below, Tenant shall surrender to Landlord possession of Suite 409 of the Original Premises, as depicted on Exhibit “A-1-A” of 1A. Tenant agrees to surrender Suite 407 and Suite 409 in accordance with the terms of the Lease, including, but not limited to, Sections 8.4 and 13.1, as though the Suite 407 Surrender Date is the expiration date of the Term of the Lease as to Suite 407 and as though the Suite 409 Surrender Date is the expiration date of the Term of the Lease as to Suite 409. Tenant hereby agrees to repair all damage to Suite 407 and Suite 409 and any other part of the Building caused by Tenant during the removal of any of Tenant’s Personal Property from Suite 407 or Suite 409. Tenant hereby agrees that Tenant will remain liable for all obligations and amounts due and owing to Landlord under the Lease with respect to Suite 407 and Suite 409 accruing on or prior to the Suite 407 Surrender Date and the Suite 409 Surrender Date, respectively, even if such amounts are not determinable until after the applicable surrender date.

B. Holdover . Notwithstanding anything in this Amendment or the Lease to the contrary, should Tenant not surrender Suite 407 in accordance with the terms of the Lease and this Amendment on or before the Suite 407 Surrender Date, Tenant shall be deemed to be occupying the entire Suite 407 as a tenant-at-sufferance, in accordance with Section 13.3 of the Lease. Notwithstanding anything in this Amendment or the Lease to the contrary, should Tenant not surrender Suite 409 in accordance with the terms of the Lease and this Amendment on or before the Suite 409 Surrender Date (subject to extension pursuant to the terms of this Amendment, below), Tenant shall be deemed to be occupying the entire Suite 409 as a tenant-at-sufferance, in accordance with Section 13.3 of the Lease.

C. Amended Premises . Accordingly, effective as of, and from and after, the 2A Effective Date, Item 7 of the Basic Lease Information to the Lease is hereby amended and restated in its entirety as follows:

 

7.       Premises/ Pathways :

    
   

(a)    Premises:

   Landlord and Tenant acknowledge and agree that the Premises shall consist of the following three (3) separately demised spaces, subject to the terms below:
   
    

a.      Approximately 1,800 square feet of area in the Building, known as Suite 407, caged as set forth on Exhibit “A-1-A” (“Suite 407”), expiring on the Suite 407 Surrender Date. *

   
    

b.      Approximately 2,000 square feet of area in the Building, known as Suite 409, caged as set forth on Exhibit “A-1-A” (“Suite 409”), expiring on the Suite 409 Surrender Date .**

   
    

c.      Approximately 2,425 square feet of area in the Building, known as Suite 418A, caged as set forth on Exhibit “A-1-A” (“Suite 418A ”).

   
    

*       As of the Suite 407 Surrender Date, Suite 407 shall be deemed to have been removed from the Premises. Subject to the paragraph immediately following this paragraph, from and after the Suite 407 Surrender Date, the Premises shall consist of Suite 409 and Suite 418A, collectively comprising approximately 4,425 square feet of area in the

 

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     Building. From and after the Suite 407 Surrender Date, no Base Rent shall become due or payable with respect to Suite 407 and all future calculations of Ancillary Utility Costs, Generator Fuel Usage or any costs to Tenant under this Lease based on a proportionate share or allocation of leased space or usage shall reflect that Suite 407 shall be deemed to have been removed from the Premises.
    

**     Subject to Tenant’s timely and proper exercise of the Suite 409 Extension Option, as of the Suite 409 Surrender Date, Suite 409 shall be deemed to have been removed from the Premises. From and after the Suite 409 Surrender Date, throughout the balance of the Term of this Lease (as extended from time to time) , the Premises shall consist of Suite 418A , comprising approximately 2,425 square feet of area in the Building. From and after the Suite 409 Surrender Date, no Base Rent shall become due or payable with respect to Suite 409 and all future calculations of Ancillary Utility Costs, Generator Fuel Usage or any costs to Tenant under this Lease based on a proportionate share or allocation of leased space or usage shall reflect that Suite 409 shall be deemed to have been removed from the Premises.

   
     Each of Suite 407, Suite 409 and Suite 418A may be referred to herein, individually, as a “ Suite ”.
   

(b)     Pathways :

   As described on Exhibit “C” .

[ Emphasis added to show the changes to Item 7.]

D. Amended Pathway . In connection with Tenant’s surrender of Suite 407 and Suite 409 (as set forth herein), Landlord and Tenant hereby agree that:

(i) effective as of, and from and after, the day immediately following the Suite 407 Surrender Date (a) Tenant shall surrender the Existing Pathway-D, the Existing Pathway-E and the New Pathway-B (collectively, the “ Suite 407 Surrendered Pathways ”) to Landlord in accordance with the terms of the Lease and Tenant shall thereafter have no right to use such pathways, and (b) the “Pathways” listed on Exhibit “C” of the Lease shall exclude the Suite 407 Surrendered Pathways; and

(ii) effective as of, and from and after, the day immediately following the Suite 409 Surrender Date (subject to extension pursuant to the terms of this Amendment, below) (a) Tenant shall surrender the Existing Pathway-B and the New Pathway-C (collectively, the “ Suite 409 Surrendered Pathways ”) to Landlord in accordance with the terms of the Lease and Tenant shall thereafter have no right to use such pathways, and (b) the “Pathways” listed on Exhibit “C” of the Lease shall exclude the Suite 409 Surrendered Pathways.

2. Term .

A. 2A Extension Term . Currently, the Term of the Lease is scheduled to expire on December 31, 2016. Effective as of the 2A Effective Date, the Term of the Lease is hereby extended by sixty (60) months (the “ 2A Extension Term ”), commencing on January 1, 2017 (the “ 2A Commencement Date ”) and expiring on December 31, 2021 (the “ 2A Expiration Date ”). For the avoidance of doubt, the parties acknowledge that, notwithstanding anything to the contrary in this Section 2.A., the Term, as it relates to Suite 407 and Suite 409 (subject to Tenant’s Suite 409 Extension Option, described below), shall expire in accordance with the terms and conditions of Section 1 of this Amendment, above.

 

-3-


B. Amended Extension Options . Currently, pursuant to Section 2.3 of the Lease, Tenant has two (2) Extension Options, each to extend the Term for an Extension Term of sixty (60) months. Effective as of the 2A Effective Date, Landlord and Tenant hereby agree that such Extension Options are hereby replaced with one (1) Extension Option to extend the Term for an Extension Term of sixty (60) months and the Extension Term Base Rent shall be revised as set forth below.

C. Suite 409 Extension Option . Landlord and Tenant acknowledge and agree that the Term, as it relates to Suite 409, will expire prior to the 2A Expiration Date, pursuant to, and subject to the terms of, Section 1. Landlord and Tenant hereby agree that Tenant shall have the right (the “ Suite 409 Extension Option ”) to extend the Term, as it relates to Suite 409, for an extension term period to be defined by Tenant and which shall be no less than one (1) year (the “ Suite 409 Extension Term ”), commencing on July 1, 2018 and continuing until such expiration date defined by Tenant in Tenant’s notice to Landlord, such that the Suite 409 Extension Term shall be no less than one (1) year and no longer than the Term of the Lease (as extended from time to time). Tenant may exercise the Suite 409 Extension Option only be delivering written notice thereof to Landlord on or before June 30, 2017, specifying that Tenant is irrevocably exercising the Suite 409 Extension Option pursuant to this Section and specifying the duration of such Suite 409 Extension Term. The monthly Base Rent payable with respect to Suite 409 during the Suite 409 Extension Term shall be as set forth in the Base Rent schedule in Section 4 of this Amendment, below (the “ Suite 409 Extension Term Base Rent ”). In the event that Tenant shall fail to deliver such notice by such date, time being of the essence, at the election of Landlord, Tenant shall be deemed to have forever waived and relinquished such Suite 409 Extension Option, and Tenant shall have no other rights to renew or extend the Term as it relates to Suite 409. If Tenant duly exercises the Suite 409 Extension Option, upon Landlord’s request, Tenant shall execute an amendment reflecting such exercise. Notwithstanding anything to the contrary in the Lease or herein, any attempted exercise by Tenant of the Suite 409 Extension Option shall, at the election of Landlord, be invalid, ineffective, and of no force or effect if, on the date on which Tenant delivers its exercise notice for same, or on the date on which the Suite 409 Extension Term is scheduled to commence, there shall be an uncured Event of Default by Tenant under the Lease.

D. Certain Amendments . Accordingly, effective as of, and from and after, the 2A Effective Date:

(i) Item 5 of the Basic Lease Information to the Lease is hereby amended and restated in its entirety as follows:

 

5. Term :    Approximately one hundred thirty-two (132) months (commencing on the Commencement Date and expiring on December 31, 2021) .

[ Emphasis added to show the changes to Item 5.]

 

-4-


(ii) Item 6 of the Basic Lease Information to the Lease is hereby amended and restated in its entirety as follows:

 

6. Extension Options/

Extension Term :

   One (1) Extension Option to extend the Term for an Extension Term of sixty (60) months , subject to the terms of Section 2.3, below.

[ Emphasis added to show the changes to Item 6.]

(iii) Section 2.3 of the Standard Lease Provisions to the Lease is hereby amended and restated in its entirety as follows:

 

2.3 Extension Options .

 

2.3.1 Subject to and in accordance with the terms and conditions of this Section 2.3, Tenant shall have the number of Extension Options specified in Item 6 of the Basic Lease Information to extend the Term of this Lease, for the respective Extension Terms specified in such Item 6, upon the same terms, conditions and provisions applicable to the then-current Term of this Lease (except as provided otherwise herein). The monthly Extension Term Base Rent payable with respect to the Tenant Space for the first year of the Extension Term shall be equal to one hundred percent (100%) of the then-current market rate then being charged by Landlord for comparable space in the Building taking into consideration the 3% annual base rent increase as set forth below, and by other landlords for extensions of leasehold interests for comparable space in comparable datacenter facilities located in the city in which the Building is located, if any, taking into consideration the quality, size, utility and location thereof, the length of the extension term, the credit standing of Tenant, any Tenant concessions being offered in the market for comparable extensions, the amenities provided to Tenant and the quality of the landlord as a first-class datacenter improvements operator (the “Fair Market Rent”); provided, however, that, once the Base Rent has been determined in accordance with this Section 2.3 with regard to the first year of an Extension Term, the monthly Base Rent for each subsequent year of such Extension Term shall be increased hereunder as of the first (1 st ) day of each such subsequent year to be equal to one hundred three percent (103%) of the scheduled monthly Base Rent for the immediately preceding year of such Extension Term .

 

2.3.2 Tenant may exercise each Extension Option only by delivering written notice (“Extension Option Interest Notice”) to Landlord at least six (6) calendar months prior to the then applicable expiration date of the Term, specifying that Tenant is interested in exercising an Extension Option pursuant to this Section 2.3 and, if Tenant timely exercised its Suite 409 Extension Option (as defined in the Second Amendment), Tenant must also specify whether Tenant is exercising the Extension Option as it relates to (a) the entire Tenant Space leased by Tenant at the time that Tenant delivers such notice, or (b) the entire Tenant Space leased by Tenant at the time that Tenant delivers such notice, but excluding Suite 409. Landlord shall thereafter deliver a written notice (the “Extension Option Landlord’s Notice”) to Tenant advising Tenant of the Extension Term Base Rent for the Extension Term. Tenant shall thereafter have the right, within thirty (30) days after Landlord’s delivery of the Extension Option Licensor’s Notice to Tenant, to exercise the Extension Option by delivering an Extension Option Exercise Notice to Landlord. Tenant’s Extension Option Exercise Notice must specify that Tenant is irrevocably exercising its Extension Option so as to extend the Term of this Lease by an Extension Term on the terms set forth in (i) this Section 2.3, and (ii) in the Extension Option Landlord’s Notice . In the event that Tenant shall duly exercise an Extension Option, the Term shall be extended to include the applicable Extension Term (and all references to the Term in this Lease shall be deemed to refer to the Term specified in Item 5 of the Basic Lease Information, plus all duly exercised Extension Terms). In the event that Tenant shall fail to deliver an Extension Option Interest Notice (which specifies whether Tenant is exercising the Extension Option as it relates to Suite 409, as described above) or an Extension Option Exercise Notice within the applicable time period specified herein for the delivery thereof, time being of the essence, at the election of Landlord, Tenant shall be deemed to have forever waived and relinquished such Extension Option, and any other options or rights to renew or extend the Term effective after the then applicable expiration date of the Term shall terminate and shall be of no further force or effect. In the event that Tenant elects not to extend

 

-5-


the Term as it relates to Suite 409, then, no later than the then-current expiration date of the Term (prior to the Extension Term), Tenant shall, subject to the provisions of this Article 13 and Section 8.4, quit and surrender possession of Suite 409 to Landlord in accordance with the terms of the Lease.

 

2.3.3 Tenant shall have the right to exercise the Extension Option only with respect to the entire Tenant Space leased by Tenant at the time that Tenant delivers the applicable Extension Option Exercise Notice; provided, however, that if Tenant timely exercised its Suite 409 Extension Option (as defined in the Second Amendment), Tenant may elect to exclude Suite 409 from its exercise of the Extension Option (by specifying same in the Extension Option Interest Notice) . If Tenant duly exercises an Extension Option, Landlord and Tenant shall execute an amendment reflecting such exercise. Notwithstanding anything to the contrary herein, any attempted exercise by Tenant of an Extension Option shall, at the election of Landlord, be invalid, ineffective, and of no force or effect if, on the date on which Tenant delivers an Extension Option Exercise Notice, or on the date on which the Extension Term is scheduled to commence, there shall be an uncured Event of Default by Tenant under this Lease.

 

[ Emphasis added to show the changes to Sections 2.3.]

3. Service Levels . In connection with Tenant’s surrender of Suite 407 and Suite 409 (as set forth herein), Landlord and Tenant hereby agree that, effective as of, and from and after, the 2A Effective Date, (a) Table A of Exhibit “F” to the Lease is hereby replaced by Table A-2 as set forth on Exhibit “F-2” , attached hereto and incorporated herein, and (b) all references in the Lease to Table A of Exhibit “F” or Table A-1 of Exhibit “F-1” are hereby deemed to mean and refer to Table A-2 of Exhibit “F-2” .

4. 2A Extension Term Base Rent . Currently, Base Rent under the Lease is as set forth in Item 8 of the Basic Lease Information of the Lease and Section 4 of 1A and the parties acknowledge and agree that Tenant shall continue to pay such Base Rent during the remainder of the initial Term of the Lease, subject to the terms of this Amendment and the Lease. Effective as of the 2A Commencement Date, Landlord and Tenant hereby agrees that the Base Rent payable by Tenant during the 2A Extension Term as it relates to Suite 418A (the “ Suite 418A Base Rent ”), and as it relates to Suite 409 (the “ Suite 409 Base Rent ”) is hereby deemed to be as follows:

 

Period

   Suite 418A Base Rent    Suite 409 Base Rent

January 1, 2017 – December 31, 2017

   $72,960.00/month    $34,560.00/month

January 1, 2018 – June 30, 2018

   $75,148.80/month    $35,596.80/month

July 1, 2018 – December 31, 2018

   $75,148.80/month    $35,596.80/month*

January 1, 2019 – December 31, 2019

   $77,403.26/month    $36,664.70/month*

January 1, 2020 – December 31, 2020

   $79,725.36/month    $37,764.65/month*

January 1, 2021 – December 31, 2021

   $82,117.12/month    $38,897.58/month*

 

* The Suite 409 Extension Term Base Rent, subject to Tenant’s timely and proper exercise of the Suite 409 Extension Option.

5. POP Room Rack Space .

A. Certain Defined Terms .

(i) “ Maximum Structural Load – POP Room ” shall mean and refer to seventy-five (75)  pounds of live load per square foot.

 

-6-


(ii) “ POP Room Rack Space ” shall mean and refer, collectively, to (a) one (1) rack unit (RU) of rackspace in the West POP Room, in the location known as number D01.204.008.07-18, and which is labeled by Tenant per Landlord’s standards (the “ W-POP Premises ”), and (b) one (1) rack unit (RU) of rackspace in the East POP Room, in the location known as number D01.202.003.02-18, and which is labeled by Tenant per Landlord’s standards (the “ E-POP Premises ”).

(iii) “ POP Room Rules and Regulations ” shall mean and refer to Landlord’s rules and regulations for the POP Rooms as may be amended by Landlord from time to time which amendments shall become effective upon notice to Tenant from Landlord. The current version of the POP Room Rules and Regulations is available on the Internet at the following URL: http://www.digitalrealty.com/leasing/ .

B. POP Room Rack Space . During the balance of the Term of this Lease (as extended herein), Tenant has a license to use the POP Room Rack Space for the placement and maintenance of computer, switch and/or communications equipment and connections with the communications cable and facilities of other tenants in the POP Rooms or the Building only (“ POP Room Permitted Use ”), and Tenant shall not be permitted to utilize the Tenant’s POP Room Rack Space (or any other portion of the Building) to provide meet-me room services or refer to the POP Room Rack Space as a meet-me room. Notwithstanding anything to the contrary contained in this Amendment or the Lease, Tenant acknowledges and agrees that Exhibit “F” of the Lease (as amended from time to time, referred to in this Section 5 as the “ SLA ”) applies only with regard to the datacenter Premises (i.e., Tenant shall have no remedies under the SLA with regard to the POP Room Rack Space and all references to the “Premises” in the SLA shall be deemed to be references to the datacenter Premises).

C. Condition . Tenant agrees that the POP Room Rack Space is provided on an “AS-IS” basis, and Landlord makes no representation or warranty that the POP Room Rack Space is suitable or fit for Tenant’s intended purpose. Tenant agrees that Landlord will not have any responsibility or liability for any damage to Tenant’s equipment or interruption of Tenant’s operations which is caused by any other occupant or its employees, technicians or representatives.

D. POP Room Rules and Regulations . Tenant shall comply with the POP Room Rules and Regulations at all times during the Term of the Lease.

E. Maximum Structural Load – POP Room . Tenant shall not place a load within the POP Room Rack Space exceeding the Maximum Structural Load – POP Room.

F. Maintenance of Tenant’s POP Room Rack Space . Notwithstanding anything to the contrary contained in this Amendment or the Lease, Tenant hereby agrees, at Tenant’s expense, to maintain the POP Room Rack Space and Tenant’s equipment therein in reasonably clean and safe condition, in as good condition as when Tenant took possession, ordinary wear and tear excepted.

 

-7-


6. Tenant Estoppel . Tenant hereby (a) acknowledges, to the best of Tenant’s knowledge, that Landlord is not in default under the Lease as of the date this Amendment is executed by Tenant, and (b) confirms, to the best of Tenant’s knowledge, that, as of the date this Amendment is executed by Tenant, Landlord has no outstanding obligations with respect to the Tenant Space that would, with the passage of time, the giving of notice, or both, result in Landlord being in default under the Lease.

7. Commissions . Tenant represents that it has dealt with no broker, agent or other person in connection with this Amendment, other than Transwestern RBJ, LLC (“ Tenant’s Broker ”) and that no broker, agent or other person, other than Tenant’s Broker, brought about this Amendment. Tenant shall indemnify and hold Landlord harmless from and against any and all claims, losses, costs or expenses (including attorneys’ fees and expenses) by any broker, agent or other person, other than Tenant’s Broker, claiming a commission or other form of compensation by virtue of having dealt with Tenant with regard to the transaction contemplated by this Amendment. The provisions of this paragraph shall survive the expiration of the Term of the Lease or any renewal or extension thereof.

8. Confidentiality . Notwithstanding anything to the contrary contained in the Lease, each party agrees that the terms and provisions of this Amendment are confidential and constitute proprietary information of the parties and shall be governed by Section 17.19 of the Lease as though the terms hereof were originally part of the Lease.

9. Miscellaneous .

A. In the event that the terms of the Lease conflict or are inconsistent with those of this Amendment, the terms of this Amendment shall govern.

B. The Lease is hereby amended as and where necessary, even though not specifically referred to herein, in order to give effect to the terms of this Amendment. Except as amended by this Amendment, the terms of the Lease shall remain in full force and effect.

C. Submission of this Amendment for examination does not constitute an offer, right of first refusal, reservation of, or option for any premises in the Building. This Amendment shall become effective only upon execution and delivery by both Landlord and Tenant.

D. This Amendment may be executed simultaneously in two or more counterparts each of which shall be deemed an original, but all of which shall constitute one and the same Amendment. Landlord and Tenant agree that the delivery of an executed copy of this Amendment by facsimile or e-mail shall be legal and binding and shall have the same full force and effect as if an original executed copy of this Amendment had been delivered.

[SIGNATURE PAGE TO FOLLOW]

 

-8-


IN WITNESS WHEREOF , Landlord and Tenant have caused this Amendment to be executed on the respective dates set forth below, to be effective as of the 2A Effective Date.

 

LANDLORD :

DIGITAL 55 MIDDLESEX, LLC ,

a Delaware limited liability company

By:   Digital Realty Trust, L.P.,
  its manager
  By:   Digital Realty Trust, Inc.,
    its general partner
    By:  

/s/ Jeff Tapley

    Name:   Jeff Tapley
    Its:   Vice President

 

Date:   2/26/2016
TENANT :

CONSTANT CONTACT, INC.

a Delaware corporation

By:  

/s/ Harpreet Grewal

Name:   Harpreet Grewal
Its:   GM
Date:   2/23/2016

 

-9-


EXHIBIT “F-2”

TABLE A-2

 

1.       Electricity Consumption Threshold :

  

Suite 407: 180 total kW (the “ ECT-Suite 407 ”) (expiring on the Suite 407 Surrender Date)

 

Suite 409: 180 total kW (the “ ECT-Suite 409 ”) (expiring on the Suite 409 Surrender Date)

 

Suite 418A: 380 total kW (the “ ECT-Suite 418A ”)

 

2.       Target Battery Capacity :

 

  

Six (6) minutes.

 

3.       Back-Up Power Specifications :

  

Six (6) 2 MW shared paralleled Building generators in an N+1 configuration supply back-up power for the Premises.

 

4.       HVAC Specifications .

 

    

(a)     Target Temperature Range:

  

Average temperature of the Premises, measured at the return air vents in the Premises, between 68 degrees Fahrenheit and 78 degrees Fahrenheit.

 

(b)     Target Humidity Range :

  

Average relative humidity of the Premises, measured at the return air vents in the Premises, between 35% and 55%.

 

[ Emphasis added to show the changes to this Table.]

 

-1-

Exhibit 10.13

Execution Version

SUPPLEMENT NO. 1 TO AMENDED AND RESTATED COLLATERAL AGREEMENT

SUPPLEMENT NO. 1 dated as of February 9, 2016 (this “ Supplement ”), to the Amended and Restated Collateral Agreement dated as of November 25, 2013 (as amended, supplemented or otherwise modified from time to time, the “ Collateral Agreement ”), among ENDURANCE INTERNATIONAL GROUP HOLDINGS INC., a Delaware corporation (“ Holdings ”), EIG INVESTORS CORP., a Delaware corporation (the “ Borrower ”), the other GRANTORS from time to time party thereto and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Administrative Agent (in such capacity, the “ Administrative Agent ”).

A. Reference is made to (a) the Third Amended and Restated Credit Agreement dated of even date with the Collateral Agreement (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among Holdings, the Borrower, the Lenders from time to time party thereto and the Administrative Agent, and (b) the Collateral Agreement.

B. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Collateral Agreement.

C. The initial Grantors entered into the Collateral Agreement in order to induce the Lenders to make Loans and the Issuing Banks to issue Letters of Credit. Section 5.14 of the Collateral Agreement provides that additional Persons may become Grantors under the Collateral Agreement by execution and delivery of an instrument in the form of this Supplement. The undersigned (the “ New Grantors ”) are executing this Supplement in accordance with the requirements of the Credit Agreement to become Grantors under the Collateral Agreement in order to induce the Lenders to make additional Loans and the Issuing Banks to issue additional Letters of Credit and as consideration for Loans previously made and Letters of Credit previously issued.

Accordingly, the Administrative Agent and the New Grantors agree as follows:

SECTION 1. In accordance with Section 5.14 of the Collateral Agreement, the New Grantors by their signatures below become Grantors under the Collateral Agreement with the same force and effect as if originally named therein as Grantors, and each New Grantor hereby (a) agrees to all the terms and provisions of the Collateral Agreement applicable to it as a Grantor thereunder and (b) represents and warrants that the representations and warranties made by it as a Grantor thereunder are true and correct on and as of the date hereof. In furtherance of the foregoing, each New Grantor, as security for the payment and performance in full of the Secured Obligations, does hereby create and grant to the Administrative Agent, its successors and assigns, for the benefit of the Secured Parties, a security interest in and lien on all of such New Grantor’s right, title and interest in, to and under the Pledged Collateral and the Article 9 Collateral. Each reference to the “Grantors” in the Collateral Agreement shall be deemed to include the New Grantors. The Collateral Agreement is hereby incorporated herein by reference.

SECTION 2. Each of the New Grantors represent and warrant to the Administrative Agent and the other Secured Parties that this Supplement has been duly authorized, executed and delivered by such New Grantor and constitutes such New Grantor’s legal, valid and binding obligation, enforceable against such New Grantor in accordance with its terms, except to the extent that enforceability of such obligations may be limited by applicable bankruptcy, insolvency and other similar laws affecting creditors’ rights generally.

SECTION 3. This Supplement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Supplement by facsimile


or other electronic transmission shall be effective as delivery of a manually signed counterpart of this Supplement. This Supplement shall become effective as to each New Grantor when a counterpart hereof executed on behalf of such New Grantor shall have been delivered to the Administrative Agent and a counterpart hereof shall have been executed on behalf of the Administrative Agent, and thereafter shall be binding upon such New Grantor and the Administrative Agent and their respective permitted successors and assigns, and shall inure to the benefit of such New Grantor, the Administrative Agent and the other Secured Parties and their respective successors and assigns, except that such New Grantor shall not have the right to assign or transfer its rights or obligations hereunder or any interest herein (and any such assignment or transfer shall be void) except as expressly provided in this Supplement, the Collateral Agreement and the Credit Agreement.

SECTION 4. Each New Grantor hereby represents and warrants that (a) set forth on Schedule I attached hereto is a schedule with the true and correct legal name of such New Grantor, its jurisdiction of organization and the location of its chief executive office, (b)  Schedule II sets forth a true and complete list, with respect to such New Grantor, of (i) all the Equity Interests owned by such New Grantor in any subsidiary and the percentage of the issued and outstanding units of each class of the Equity Interests of the issuer thereof represented by the Pledged Equity Interests owned by such New Grantor and (ii) all the Pledged Debt Securities owned by such New Grantor and (c)  Schedule III attached hereto sets forth, as of the date hereof, (i) all of such New Grantor’s Patents, including the name of the registered owner, type, registration or application number and the expiration date (if already registered) of each such Patent owned by such New Grantor, (ii) all of such New Grantor’s Trademarks, including the name of the registered owner, the registration or application number and the expiration date (if already registered) of each such Trademark owned by such New Grantor, and (iii) all of such New Grantor’s Copyrights, including the name of the registered owner, title and, if applicable, the registration number of each such Copyright owned by such New Grantor, and (d)  Schedule IV attached hereto sets forth, as of the date hereof, each Commercial Tort Claim (in respect of which a complaint or counterclaim has been prepared or filed by or on behalf of such New Grantor) in an amount reasonably estimated to exceed $1,000,000.

SECTION 5. Except as expressly supplemented hereby, the Collateral Agreement shall remain in full force and effect.

SECTION 6. THIS SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

SECTION 7. Any provision of this Supplement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

SECTION 8. All communications and notices hereunder shall be in writing and given as provided in Section 5.01 of the Collateral Agreement.

SECTION 9. The New Grantors agree to reimburse the Administrative Agent for its fees and expenses incurred hereunder and under the Collateral Agreement as provided in Section 9.03(a) of the Credit Agreement; provided that each reference therein to the “Borrower” shall be deemed to be a reference to “the New Grantors.”

[ Remainder of Page Intentionally Left Blank ]


IN WITNESS WHEREOF, the New Grantors and the Administrative Agent have duly executed this Supplement No. 1 to the Amended and Restated Collateral Agreement as of the day and year first above written.

 

CONSTANT CONTACT, INC.

SINGLEPLATFORM, LLC

CARDSTAR, INC.,

as New Grantors

By:   /s/ Hari Ravichandran
  Name: Hari Ravichandran
  Title: Chief Executive Officer and President

CARDSTAR PUBLISHING, LLC

By: CARDSTAR, INC., its sole member

By:   /s/ Hari Ravichandran
  Name: Hari Ravichandran
  Title: Chief Executive Officer and President

 

[ Supplement No. 1 to Amended and Restated Collateral Agreement ]


CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH , as Administrative Agent
By:   /s/ Robert Hetu
  Name: Robert Hetu
  Title: Authorized Signatory
By:   /s/ Warren Van Heyst
  Name: Warren Van Heyst
  Title: Authorized Signatory

 

[ Supplement No. 1 to Amended and Restated Collateral Agreement ]


Schedule I

to Supplement No. 1 to the

Collateral Agreement

NEW GRANTOR INFORMATION

 

Legal Name

 

Jurisdiction of

Organization

 

Chief Executive

Office

Constant Contact, Inc.

  DE  

1601 Trapelo Road

  Waltham, MA 02451

SinglePlatform, LLC

  DE  

1601 Trapelo Road

  Waltham, MA 02451

CardStar, Inc.

  DE  

1601 Trapelo Road

  Waltham, MA 02451

CardStar Publishing, LLC

  DC  

1601 Trapelo Road

  Waltham, MA 02451

 

[ Supplement No. 1 to Amended and Restated Collateral Agreement ]


Schedule II

to Supplement No. 1 to the

Collateral Agreement

PLEDGED EQUITY INTERESTS

 

Grantor

  

Issuer

  

Number of

Certificate

  

Number and

Class of

Equity Interests

  

Percentage

of Total Equity

Interests

Constant Contact, Inc.

   EIG Investors Corp.    N/A    1000    100%

SinglePlatform, LLC

   Constant Contact, Inc.    N/A    N/A    100%

CardStar, Inc.

   Constant Contact, Inc.    CS -1    100    100%

CardStar Publishing, LLC

   CardStar, Inc.    N/A    N/A    100%

PLEDGED DEBT SECURITIES

None.

 

[ Supplement No. 1 to Amended and Restated Collateral Agreement ]


Schedule III

to Supplement No. 1 to the

Collateral Agreement

INTELLECTUAL PROPERTY

Patents

 

GRANTOR

  

TITLE

  

COUNTRY

  

APPLICATION
DATE

  

APPLICATION
#

  

ISSUE
DATE

  

PATENT
#

Constant Contact, Inc.

   Visual editor for electronic mail    United States    1/19/2007    11/655731    1/31/12    8108763

Cardstar, Inc.

   Identification related technology    United States    8/23/2010    12/861273    6/18/13    8468054

Constant Contact, Inc.

   Multichannel authoring and content management system    United States    12/23/2014    14/580757      

Constant Contact, Inc.

  

Multichannel authoring and content

management system

   United States    12/23/2014    14/580790      

 

[ Supplement No. 1 to Amended and Restated Collateral Agreement ]


Trademarks

 

Item

  

Name

 

Registered Owner

    

Application Number

  

Registration Number

  

Country

1.

   APPCONNECT   Constant Contact, Inc.      76699962    3797962    United States

2.

   CARDSTAR   Cardstar, Inc.      85016452    3916404    United States

3.

   CONNECT.INFORM.GROW   Constant Contact, Inc.      76694463    3641645    United States

4.

   CONSTANT CONTACT   Constant Contact, Inc.      75588929    2363937    United States

5.

   CONSTANT CONTACT   Constant Contact, Inc.      76628181    3052770    United States

6.

   CONSTANT CONTACT HINTS & TIPS   Constant Contact, Inc.      77847730    4179792    United States

7.

   CONSTANT CONTACT UNIVERSITY   Constant Contact, Inc.      76698233    3761988    United States

8.

   EMAIL MARKETING 101   Constant Contact, Inc.      76470674    2761579    United States

9.

   ENGAGEMENT MARKETING   Constant Contact, Inc.      85210149    4403697    United States

10.

  

LOGO

ENVELOPE LOGO

  Constant Contact, Inc.      76668144    3443361    United States

11.

  

LOGO

ENVELOPE LOGO

(BLACK & WHITE)

  Constant Contact, Inc.      77443935    3549442    United States

12.

   EVENTSPOT   Constant Contact, Inc.      85613788    4296541    United States

13.

   FANBRUARY   Constant Contact, Inc.      76710744    4228241    United States

14.

   HELPING SMALL BUSINESS DO MORE BUSINESS   Constant Contact, Inc.      86294587    4667140    United States

15.

   KNOWHOW   Constant Contact, Inc.      85169286    4176390    United States

 

[ Supplement No. 1 to Amended and Restated Collateral Agreement ]


Item

  

Name

 

Registered Owner

    

Application Number

  

Registration Number

  

Country

16.

  

LOGO

MISCELLANEOUS DESIGN

  Constant Contact, Inc.      76711908    4303113    United States

17.

   SAFE SUBSCRIBE   Constant Contact, Inc.      77028856    3627455    United States

18.

   SAFE UNSUBSCRIBE   Constant Contact, Inc.      78183577    2887624    United States

19.

   SAVELOCAL   Constant Contact, Inc.      85707986       United States

20.

  

LOGO

SAVELOCAL And Design

  Constant Contact, Inc.      85546153    4369507    United States

21.

   SIMPLE SHARE   Constant Contact, Inc.      85897546    4706165    United States

22.

  

LOGO

SOCIAL CAMPAIGNS And Design

  Constant Contact, Inc.      85866693    4480091    United States

23.

   SYNCSCAN   Cardstar, Inc.      85016453    3916405    United States

24.

   THE SMART WAY TO REACH YOUR CUSTOMERS   Constant Contact, Inc.      76666838    3443354    United States

25.

  

LOGO

KNOWHOW And Design

  Constant Contact, Inc.      1502500    1502500    Australia

26.

   SIMPLE SHARE   Constant Contact, Inc.      1474145    1474145    Australia

27.

   CONNECT.INFORM.GROW   Constant Contact, Inc.      1438764    TMA769058    Ca n ada

28.

   CONSTANT CONTACT   Constant Contact, Inc.      1432352    TMA768799    Canada

29.

   CONSTANT CONTACT TOOLKIT   Constant Contact, Inc.      1704414       Canada

30.

   EMAIL MARKETING 101   Constant Contact, Inc.      1337740    TMA715481    Canada

31.

   ENGAGEMENT MARKETING   Constant Contact, Inc.      1524164    TMA853281    Canada

 

[ Supplement No. 1 to Amended and Restated Collateral Agreement ]


Item

  

Name

 

Registered Owner

    

Application Number

  

Registration Number

  

Country

32.

  

LOGO

ENVELOPE LOGO

(BLACK & WHITE)

  Constant Contact, Inc.      1432345    TMA768800    Canada

33.

   EVENTSPOT   Constant Contact, Inc.      1575983    TMA862312    Canada

34.

  

HELPING SMALL BUSINESS

DO MORE BUSINESS

  Constant Contact, Inc.      1704413       Canada

35.

   KNOWHOW   Constant Contact, Inc.      1518745    TMA873140    Canada

36.

  

LOGO

SAVELOCAL And Design

  Constant Contact, Inc.      1575492    TMA901054    Canada

37.

   SIMPLE SHARE   Constant Contact, Inc.      1563288    TMA848958    Canada

38.

   SOCIAL CAMPAIGNS   Constant Contact, Inc.      1575491    TMA871539    Canada

39.

   CONSTANT CONTACT   Constant Contact, Inc.      004819652    004819652    European Community

40.

   CONSTANT CONTACT TOOLKIT   Constant Contact, Inc.      013451414    01345414    European Community

41.

  

LOGO

ENVELOPE LOGO

(BLACK & WHITE)

  Constant Contact, Inc.      007194012    007194012    European Community

42.

  

LOGO

KNOWHOW And Device

  Constant Contact, Inc.      009813635    009813635    European Community

43.

   SIMPLE SHARE   Constant Contact, Inc.      010657724    010657724    European Community

44.

  

LOGO

SOCIAL CAMPAIGNS And Design

  Constant Contact, Inc.      011226611    011226611    European Community

45.

   EVENTSPOT   Constant Contact, Inc.      UK00002620114    UK00002620114    United Kingdom

 

[ Supplement No. 1 to Amended and Restated Collateral Agreement ]


Trade Names

None.

 

[ Supplement No. 1 to Amended and Restated Collateral Agreement ]


Copyrights

Copyright Registrations

 

Type of Work

 

Title

 

Claimant

 

Date of

Creation

 

Date of

Publication

 

Registration No.

Registration Date

Text

  Engagement Marketing by Gail F. Goodman   Constant Contact, Inc.   2011   04/05/2012  

TX0007555536

06/08/2012

Text

  CardStar Merchant Database 1.0   CardStar, Inc.   2009   01/14/2009  

TX0007148925

09/30/2009

Text

  CardStar Merchant Database 1.2   CardStar, Inc.   2009   04/21/2009  

TX0007148919

09/30/2009

Text

  CardStar Merchant Database 1.3   CardStar, Inc.   2009   06/25/2009  

TX0007148922

09/30/2009

Text

  CardStar Merchant Database 1.4   CardStar, Inc.   2009   10/06/2009  

TXu001659807

09/30/2009

Text

  CardStar Merchant Database 1.1   CardStar, Inc.   2009   02/17/2009  

TX0007148924

09/30/2009

Text

  CardStar Merchant Database 2.0   CardStar, Inc.   2009   12/02/2009  

TX0007199525

02/23/2010

Text

  CardStar Merchant Database 2.1   CardStar, Inc.   2010   03/17/2010  

TX0007301245

06/18/2010

Text

  CardStar Merchant Database 3.0   CardStar, Inc.   2010   07/28/2010  

TX0007358134

09/27/2010

Copyright Applications

None.

 

[ Supplement No. 1 to Amended and Restated Collateral Agreement ]


Schedule IV

to Supplement No. 1 to the

Collateral Agreement

COMMERCIAL TORT CLAIMS

None.

Exhibit 10.14

Execution Version

SUPPLEMENT NO. 1 TO AMENDED AND RESTATED MASTER GUARANTEE AGREEMENT

SUPPLEMENT NO. 1 dated as of February 9, 2016 to the Amended and Restated Master Guarantee Agreement dated as of November 25, 2013 (as amended, supplemented or otherwise modified from time to time, the “ Guarantee Agreement ”), among ENDURANCE INTERNATIONAL GROUP HOLDINGS, INC., (“ Holdings ”), EIG INVESTORS CORP. (the “ Borrower ”), the subsidiaries of Holdings party thereto (Holdings, the Borrower and such subsidiaries being collectively referred to as the “ Guarantors ”) and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Administrative Agent (in such capacity, the “ Administrative Agent ”).

A. Reference is made to (a) the Third Amended and Restated Credit Agreement dated of even date with the Guarantee Agreement (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among Holdings, Borrower, the Lenders party thereto and the Administrative Agent and (b) the Guarantee Agreement.

B. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement and the Guarantee Agreement, as applicable.

C. The original Guarantors entered into the Guarantee Agreement in order to induce the Lenders and the Issuing Banks to extend credit to the Borrower. Section 5.13 of the Guarantee Agreement provides that additional Persons may become Guarantors under the Guarantee Agreement by execution and delivery of an instrument in the form of this instrument (the “ Supplement ”). The undersigned Persons (the “ New Guarantors ”) are executing this Supplement to become Guarantors under the Guarantee Agreement in order to induce the Lenders and the Issuing Banks to make additional extensions of credit under the Credit Agreement and as consideration for such extensions of credit previously issued.

Accordingly, the Administrative Agent and the New Guarantors agree as follows:

SECTION 1. In accordance with Section 5.13 of the Guarantee Agreement, the New Guarantors by their signature below become Guarantors under the Guarantee Agreement with the same force and effect as if originally named therein as Guarantors, and each New Guarantor hereby agrees to all the terms and provisions of the Guarantee Agreement applicable to it as a Guarantor thereunder. Each reference to the “Guarantors” in the Guarantee Agreement shall be deemed to include the New Guarantors. The Guarantee Agreement is hereby incorporated herein by reference.

SECTION 2. Each New Guarantor represents and warrants to the Administrative Agent and the other Guaranteed Parties that (a) the execution, delivery and performance by such New Guarantor of this Supplement have been duly authorized by all necessary corporate or other action and, if required, action by the holders of such New Guarantor’s Equity Interests, and that this Supplement has been duly executed and delivered by such New Guarantor and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law, and (b) all representations and warranties set forth in the Credit Agreement as to such New Guarantor are true and correct in all material respects as of the date hereof; provided that, to the extent such representations and warranties specifically refer to an earlier date, they are true and correct in all material respects as of such earlier date; provided , further that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language is true and correct in all respects.


SECTION 3. This Supplement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Supplement by facsimile or other electronic transmission shall be effective as delivery of a manually signed counterpart of this Supplement. This Supplement shall become effective as to each New Guarantor when a counterpart hereof executed on behalf of such New Guarantor shall have been delivered to the Administrative Agent and a counterpart hereof shall have been executed on behalf of the Administrative Agent, and thereafter shall be binding upon such New Guarantor and the Administrative Agent and their respective permitted successors and assigns, and shall inure to the benefit of such New Guarantor, the Administrative Agent and the other Guaranteed Parties and their respective successors and assigns, except that such New Guarantor shall not have the right to assign or transfer its rights or obligations hereunder or any interest herein (and any such assignment or transfer shall be void) except as expressly provided in this Supplement, the Guarantee Agreement and the Credit Agreement.

SECTION 4. Except as expressly supplemented hereby, the Guarantee Agreement shall remain in full force and effect.

SECTION 5. THIS SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

SECTION 6. Any provision of this Supplement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

SECTION 7. All communications and notices hereunder shall be in writing and given as provided in Section 5.01 of the Guarantee Agreement.

SECTION 8. The New Guarantors agree to reimburse the Administrative Agent for its fees and expenses incurred hereunder and under the Guarantee Agreement as provided in Section 9.03(a) of the Credit Agreement; provided that each reference therein to the “Borrower” shall be deemed to be a reference to “the New Guarantors.”

SECTION 9. Constant Contact, Inc. hereby represents and warrants that it is a corporation duly incorporated under the law of the state of Delaware. SinglePlatform, LLC hereby represents and warrants that it is a limited liability company duly formed under the law of the state of Delaware. CardStar, Inc. hereby represents and warrants that it is a corporation duly incorporated under the law of the state of Delaware. CardStar Publishing, LLC hereby represents and warrants that it is a limited liability company duly formed under the law of the District of Columbia.

[ Signature page follows. ]


IN WITNESS WHEREOF, the New Guarantors and the Administrative Agent have duly executed this Supplement No. 1 to the Amended and Restated Master Guarantee Agreement as of the day and year first above written.

 

CONSTANT CONTACT, INC.

SINGLEPLATFORM, LLC

CARDSTAR, INC.,

as New Guarantors

By:   /s/ Hari Ravichandran
  Name:  Hari Ravichandran
  Title:    Chief Executive Officer and President

CARDSTAR PUBLISHING, LLC

By: CARDSTAR, INC., its sole member

By:   /s/ Hari Ravichandran
  Name: Hari Ravichandran
  Title: Chief Executive Officer and President

 

[ Supplement No. 1 to Amended and Restated Guarantee Agreement ]


CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Administrative Agent, on behalf of itself and the other Guaranteed Parties
By   /s/ Robert Hetu
  Name: Robert Hetu
  Title: Authorized Signatory
By   /s/ Warren Van Heyst
  Name: Warren Van Heyst
  Title: Authorized Signatory

 

[ Supplement No. 1 to Amended and Restated Guarantee Agreement ]

Exhibit 31.1

CERTIFICATION

I, Hari Ravichandran, certify that:

1. I have reviewed this Quarterly Report on Form 10-Q of Endurance International Group Holdings, Inc.;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

  a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

  c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

  a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

  b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Date: May 9, 2016     By:  

/s/ Hari Ravichandran

     

Hari Ravichandran

Chief Executive Officer

(Principal Executive Officer)

Exhibit 31.2

CERTIFICATION

I, Marc Montagner, certify that:

1. I have reviewed this Quarterly Report on Form 10-Q of Endurance International Group Holdings, Inc.;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

  a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

  c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

  a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

  b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Date: May 9, 2016     By:  

/s/ Marc Montagner

     

Marc Montagner

Chief Financial Officer

(Principal Financial Officer)

Exhibit 32.1

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Quarterly Report on Form 10-Q of Endurance International Group Holdings, Inc. for the fiscal quarter ended March 31, 2016 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned, Hari Ravichandran, Chief Executive Officer of Endurance International Group Holdings, Inc., hereby certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of his knowledge on the date hereof:

 

  (1) the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, and

 

  (2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Endurance International Group Holdings, Inc.

 

Date: May 9, 2016     By:  

/s/ Hari Ravichandran

     

Hari Ravichandran

Chief Executive Officer

(Principal Executive Officer)

Exhibit 32.2

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Quarterly Report on Form 10-Q of Endurance International Group Holdings, Inc. for the fiscal quarter ended March 31, 2016 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned, Marc Montagner, Chief Financial Officer of Endurance International Group Holdings, Inc., hereby certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of his knowledge on the date hereof:

 

  (1) the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, and

 

  (2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Endurance International Group Holdings, Inc.

 

Date: May 9, 2016     By:  

/s/ Marc Montagner

     

Marc Montagner

Chief Financial Officer

(Principal Financial Officer)