REGISTRATION RIGHTS AGREEMENT
Exhibit 4.1
This Registration Rights Agreement (this “Agreement”) is made and entered into as of
February 14, 2007 by and among Omniture, Inc., a Delaware corporation (the “Purchaser”),
and each of the holders of the issued share capital of Touch Clarity Ltd. (a company registered in
England and Wales with company number 04395864 (the “Company”), set forth on Exhibit
A hereto (each individually a “Shareholder” and collectively the
“Shareholders”).
RECITALS
A. The Purchaser and the Shareholders have entered into, or have otherwise become bound by the
terms and conditions of, a Share Purchase Agreement dated February 14, 2007 (the “Purchase
Agreement”) pursuant to which the Shareholders may receive shares of Purchaser Common Stock as
partial consideration for their Shares following the Closing.
B. The Purchaser and Shareholders desire to enter into this Agreement to set forth the various
registration rights and obligations relating to the shares of Purchaser Common Stock that may be
acquired by the Shareholders following the Closing.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms used but not otherwise defined in this Agreement
shall have the respective meanings ascribed to them in the Purchase Agreement. As used in this
Agreement:
(a) “Agreement” is defined in the Preamble to this Agreement.
(b) “Company” is defined in the Preamble to this Agreement.
(c) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
(d) “Holder” shall mean any Shareholder holding Registrable Shares.
(e) “Indemnified Person” is defined in Section 8(c).
(f) “Indemnifying Person” is defined in Section 8(c).
(g) “Permitted Window” shall mean the period during which the Holders are entitled to
sell Registrable Securities pursuant to a registration statement under Section 2 of this
Agreement. Except as otherwise set forth in this Agreement, a Permitted Window shall (i) commence
immediately after the end of a Quarterly Black-Out Period, and shall (ii) terminate
immediately prior to the commencement of a Quarterly Black-Out Period, unless the Holders
receive notice from the Purchaser to the contrary in accordance with Section 2(b).
(h) “Prospectus” is defined in Section 2(c).
(i) “Purchaser” is defined in the Preamble to this Agreement.
(j) “Quarterly Black-Out Period” means the period commencing on the 16th day prior to
the end of the last day of each of the Purchaser’s fiscal quarters and terminating at the start of
the second full trading day after the Purchaser publicly announces its results for such fiscal
quarter.
(k) “Registrable Shares” shall mean the shares of Purchaser Common Stock issued to the
Holders as a portion of the Additional Payment Amount, if any, and any other securities
issued by the Purchaser as a dividend or other distribution with respect to, or in exchange for or
in replacement of, such shares; provided, however, that Registrable Shares shall
not include shares of Purchaser Common Stock that have been disposed of pursuant to a registration
statement under the Securities Act (including the Registration Statement contemplated by the
Purchase Agreement) or that can be sold in any consecutive 90-day period without registration in
accordance with Rule 144 promulgated under the Securities Act.
(l) “Registration Expenses” is defined in Section 5.
(m) “Registration Statement” is defined in Section 2(a).
(n) “Registration Termination Time” shall mean shall mean 5:00 PM United States
Mountain Time on the date that is the twelve-month anniversary of the date on which the
Registration Statement is declared effective by the SEC, subject to such longer period as set forth
in Section 3(d).
(o) “Purchase Agreement” is defined in the Recitals to this Agreement.
(p) “SEC” means the Securities and Exchange Commission.
(q) “Securities Act” means the Securities Act of 1933, as amended.
(r) “United States” means and includes the United States of America, its territories
and possessions, any State of the United States, and the District of Columbia.
2. Registration of Purchaser Common Stock.
(a) In the event a Determination Notice is delivered to the Shareholder Representative
pursuant to Section 1.2(c)(i) of the Purchase Agreement setting forth an allocation of the
Additional Payment Amount between cash and Purchaser Common Stock, the Purchaser agrees to file
with the SEC a registration statement covering all of the Registrable Shares on Form S-3 pursuant
to Rule 415 under the Securities Act, or any similar rule that may be adopted by the SEC and
permitting sales in ordinary course brokerage or dealer transactions not involving any underwritten
public offering (the “Registration Statement,” which term shall
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include any amendments, supplements or exhibits thereto) covering the resale on a delayed or
continuous basis or any similar rule that may be adopted by the SEC and permitting sales in
ordinary course brokerage or dealer transactions not involving any underwritten public offering.
(b) The Purchaser shall use reasonable commercial efforts to cause the Registration Statement
to be declared effective by the SEC as soon as reasonably practicable following filing, but in no
event later than November 30, 2007 (which date shall be extended to the extent of any delays
required to amend the Registration Statement to reflect any transfers of Registrable Shares
effected in accordance with Section 7 below). Following the date the Registration
Statement is declared effective, the Holders shall be permitted, subject to Section 3 below
and the other terms of this Agreement, to offer and sell Registrable Shares in the manner described
in the Registration Statement during the period of its effectiveness; provided,
however, that, following the six-month anniversary of the effective date of the
Registration Statement, the Holders shall, subject to Section 3, be permitted, to offer and
sell Registrable Shares solely during a Permitted Window. Subject to Section 3, the
Purchaser shall use reasonable commercial efforts to cause the Registration Statement to remain
effective until the earliest to occur of: (i) the Registration Termination Time; (ii) the date that
all of the Registrable Shares have been sold; or (iii) the first date upon which all the
Registrable Shares covered by the Registration Statement have been disposed of pursuant to a
registration statement under the Securities Act or that can be sold in any consecutive ninety (90)
day period pursuant to Rule 144 without registration under the Securities Act.
(c) The Purchaser shall notify each Holder of the effectiveness of the Registration Statement
and shall furnish to each Holder, without charge, such number of copies of the Registration
Statement, the prospectus contained therein (including each preliminary prospectus and all related
amendments and supplements) (the “Prospectus”) and, as requested by the Holders, any
documents incorporated by reference in the Registration Statement or such other documents as the
Holders may reasonably request in order to facilitate the sale of the Registrable Shares in the
manner described in the Registration Statement.
(d) The Purchaser shall, as promptly as practicable, notify the Holders of the issuance by the
SEC of any stop order suspending the effectiveness of the Registration Statement with respect to
the Holders’ Registrable Shares or the receipt of notice of the initiation of any proceedings for
that purpose. The Purchaser shall use its reasonable commercial efforts to obtain the withdrawal
of any order suspending the effectiveness of such a Registration Statement at the earliest
practicable time. The Purchaser shall promptly notify the Holders of any request by the SEC for
any amendment or supplement to, or additional information in connection with, the Registration
Statement (or prospectus relating thereto). The Purchaser shall promptly notify the Holders of the
filing of the Registration Statement or any prospectus, amendment or supplement related thereto or
any post-effective amendment to the Registration Statement and the effectiveness of any
post-effective amendment.
3. Limitations and Qualification. Notwithstanding anything in this Agreement to the
contrary, the Purchaser’s obligations and the Holders’ rights under Section 2 and Section 4 are
subject to the limitations and qualifications set forth below, which may be waived in writing by
the Purchaser.
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(a) The Purchaser shall not be required to register the Registrable Shares acquired by any
Holder if such Holder (i) has not completed, executed and delivered this Agreement and a Securities
Compliance Certificate (including an amended and restated Securities Compliance Certificate
re-executed at a later date upon Purchaser’s request) reasonably requested by the Purchaser and
(ii) does not provide all such other information and materials to the Purchaser and take all such
actions as may be reasonably required in order to permit the Purchaser to comply with all
applicable requirements of the SEC, the Securities Act, the Exchange Act and applicable “blue sky”
laws or to obtain any desired acceleration of the effective date of the Registration Statement.
(b) Immediately upon the receipt by a Holder of notice of a stop order or suspension of
qualification pursuant to Section 2(d), such Holder shall cease to offer and sell any Registrable
Shares pursuant to the Registration Statement in the jurisdiction to which such stop order or
suspension relates.
(c) Following the six-month anniversary of the effective date of the Registration Statement,
the Holders will sell Registrable Shares pursuant to the Registration Statement only during a
Permitted Window.
(d) Notwithstanding any other provisions of this Agreement, the Purchaser may, by written
notice to the Holders, postpone the filing or the effectiveness of the Registration Statement or,
if the Registration Statement has already been declared effective, to suspend further offers and
sales of Registrable Shares pursuant to the Registration Statement whenever, and for so long as,
the Purchaser determines in good faith that it would reasonably likely materially interfere with a
bona fide business or financing transaction of the Purchaser, would require premature disclosure of
information (the premature disclosure of which could materially and adversely affect the Purchaser)
or would otherwise be seriously detrimental to the Purchaser or its stockholders, to file or
maintain the effectiveness of a Registration Statement covering the Registrable Shares or to not
suspend offers and sales under the Registration Statement. Each Holder agrees that, upon any such
notice from the Purchaser suspending offers and sales under the Registration Statement, such Holder
shall forthwith cease to offer or sell any Registrable Shares pursuant to the Registration
Statement. As promptly as practicable following the termination of the circumstance which entitled
the Purchaser to suspend the use of the Registration Statement, the Purchaser shall take such
actions as may be necessary to permit offers and sales pursuant to the Registration Statement and
to give written notice to the Holders to the effect that the Holders may resume offers and sales
pursuant to the Registration Statement. If as a result thereof the prospectus included in the
Registration Statement has been amended to comply with the requirements of the Securities Act, the
Purchaser shall enclose such revised prospectus with the notice to the Holders given pursuant to
this Section 3(d), and the Holders shall make no offers or sales of shares pursuant to the
Registration Statement other than by means of such revised Prospectus. The Purchaser need not
specify the nature of the event giving rise to any such postponement or suspension in any notice to
the Holders and the Holders agree to treat and keep the existence of or reasons for such
postponement or suspension, as the case may be, strictly confidential. Notwithstanding anything to
the contrary herein, the Purchaser shall not exercise its rights under this Section 3(d) to
postpone the filing of the Registration Statement and/or suspend offers or sales of Registrable
Shares under the Registration Statement more than twice in any twelve (12) month period and the
Registration Termination Time shall be
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extended by that period of time equal to the period of time the Registration Statement was
suspended.
(e) The obligations of the Purchaser to take the actions contemplated by Section 2 and
Section 4 with respect to an offering of Registrable Shares shall be subject to the
condition that each Holder shall (i) conform to all applicable requirements of the Securities Act
and the Exchange Act with respect to the offering and sale of securities; (ii) advise each
underwriter, broker or dealer through which any of such Registrable Shares are offered that such
Registrable Shares are part of a distribution that is subject to the prospectus delivery
requirements of the Securities Act and (iii) furnish to the Purchaser the information and materials
described in this Section 3(e), including an executed Securities Compliance Certificate
(and an amended and restated Securities Compliance Certificate re-executed at a later date upon
Purchaser’s request) which shall be delivered to Holders. Each Holder shall furnish to the
Purchaser in writing such information and furnish such documents as may be reasonably required by
the Purchaser in the preparation of (A) a Prospectus (or any amendment or supplement thereto) with
respect to any offering of Registrable Shares and (B) any qualification of such Registrable Shares
under state securities or “blue sky” laws pursuant to Section 3(a), and shall promptly
notify the Purchaser of the occurrence, from the date on which such information or documents are
furnished to the date of the closing for the sale of such Registrable Shares, of any event relating
to such Holder that is required under the Securities Act to be set forth in such Prospectus (or any
amendment or supplement thereto).
4. Obligations of the Purchaser. Subject to the terms hereof, the Purchaser shall:
(i) prepare and file with the SEC the Registration Statement in accordance with Section 2
hereof with respect to the Registrable Shares; (ii) prepare and file with the SEC such amendments
and supplements to such Registration Statement and the Prospectus used in connection therewith as
may be necessary to comply with the provisions of the Securities Act with respect to the sale or
other disposition of all Registrable Shares proposed to be registered in such Registration
Statement; (iii) furnish to the Holders such number of copies of the Prospectus in conformity with
the requirements of the Securities Act, and such other documents as the Holders may reasonably
request in order to effect the offering and sale of the Registrable Shares to be offered and sold
by them, but only while the Purchaser shall be required under the provisions hereof to cause the
Registration Statement to remain current; (iv) use its commercially reasonable efforts to register
or qualify the Registrable Shares covered by such Registration Statement under the securities or
blue sky laws of such jurisdictions as the Holders shall reasonably request in writing (provided
that the Purchaser shall not be required in connection therewith or as a condition thereto to
qualify to do business where it is not then so qualified or to file a general consent to service of
process in any such jurisdiction where it is not then so subject to service of process); (v) notify
the Holders of the issuance by the SEC or any other federal or state governmental authority of any
stop order suspending the effectiveness of the registration or the initiation of any proceedings
for that purpose or the receipt by the Purchaser of any notification with respect to suspension of
the qualification of the Registrable Shares for sale in any jurisdiction; (vi) use all reasonable
commercial efforts to continue to meet the eligibility requirement set forth in General Instruction
I.A for Form S-3 of the Securities Act or any successor form promulgated by the SEC and (vii), if
required by the rules of the NASDAQ Global Market, file with the NASDAQ Global Market a
Notification Form for Listing Additional Shares with respect to the Registrable Shares.
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5. Expenses of Registration. The Purchaser shall pay all reasonable expenses incident
to its performance of or compliance with this Agreement and the registration of Registrable Shares
in connection herewith, including (a) all SEC registration and filing fees, (b) all fees and
expenses incurred by the Purchaser in complying with securities or “blue sky” laws, (c) all
printing, messenger and delivery expenses incurred by the Purchaser and (d) all fees and
disbursements of the Purchaser’s independent public accountants and counsel (all of such expenses
herein referred to as “Registration Expenses”). The Registration Expenses shall not
include (and the Purchaser shall not be responsible for) any legal fees of the Holders or any sales
or underwriting discounts, commissions or fees attributable to the sale of the Registrable Shares,
which shall be borne by the Holders.
6. Termination of Registration Rights.
(a) The obligations of the Purchaser pursuant to this Agreement and all registration rights
granted under Section 2 and Section 4 shall terminate and be of no further force
and effect at the earliest of (i) the date that all of the Registrable Shares have been sold; (ii)
the Registration Termination Time; or (iii) the first date on which all Registrable Shares covered
by the Registration Statement shall have been disposed of pursuant to a registration statement
under the Securities Act or that can be sold in any consecutive ninety (90) day period pursuant to
Rule 144 without registration, the obligations of the Purchaser hereunder to the Holders shall be
of no further force and effect whatsoever upon written notice of the Purchaser to the Holders.
Upon termination of the Purchaser’s obligations under this Agreement, the Purchaser may withdraw
the Registration Statement. Notwithstanding the termination of the Purchaser’s obligations under
this Agreement, the provisions of Section 5, Section 6, Section 8 and
Section 10 shall survive such termination.
(b) Upon termination of the registration rights of all Holders under this Agreement in
accordance with this Section 6, each Holder shall discontinue sales of Registrable Shares
pursuant to the Registration Statement. If, pursuant to the terms of this Agreement, the Purchaser
shall have given notice to a Holder of its intention to remove from registration the Registrable
Shares covered by the Registration Statement that have not been sold, such Holder shall notify the
Purchaser promptly upon the receipt of such notice of the number of Registrable Shares that are
registered but remain unsold.
7. Assignment of Registration Rights and Transfer of Registrable Shares. Any Holder
of twelve percent (12%) or more of the Registrable Shares originally registered under the
Registration Statement shall have the right to transfer its rights under this Agreement to any
transferee (a “Transferee”) of Registrable Shares owned by such Holder. Any transfer of
rights pursuant to this Section 7 shall be effective upon receipt by the Purchaser of (i)
at least ten (10) calendar days prior written notice from such Holder stating the name and address
of any Transferee and identifying the number of Registrable Shares with respect to which the rights
under this Agreement are being transferred, and (ii) a written agreement from such Transferee to be
bound by the terms of this Agreement. In the event of any such transfer, the Purchaser shall
notify the transferring Holder whether such transfer would require a suspension of the Registration
Statement under applicable U.S. securities laws. If the Purchaser notifies the transferring Holder
that the transfer requires such a suspension, the Purchaser shall so notify all other Holders and
shall, subject to Section 3 above, take such actions as are reasonably necessary
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to amend the Registration Statement or to otherwise reinstate the effectiveness of the
Registration Statement, and such Holders agree to suspend offers and sales under the Registration
Statement until such time as the Company notifies the Holders in writing that the Registration
Statement, as amended or supplemented, is effective or otherwise available for further offers and
sales of Registrable Shares; provided, however, that the Purchaser shall not be
obligated to reinstate the effectiveness of the Registration Statement until such time as the
transfers to all Transferees are effective in accordance with this Section 7;
provided, further, that the Purchaser shall have no obligation to file a
post-effective amendment to the Registration Statement more than twice prior to the Registration
Termination Time or more than once in any three month period. For the sole purposes of determining
whether a Holder may transfer its rights under this Agreement to a Transferee pursuant to this
Section 7, a Holder shall be deemed to own the aggregate number of Registrable Shares held
by such Holder and any other Holder that directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control with, such Holder.
8. Indemnification and Contribution.
(a) Subject to the terms and conditions of this Agreement, the Purchaser agrees to indemnify,
to the extent permitted by law, each Holder, and if such Holder is not an individual, such Holder’s
directors, officers and each person, if any, that controls a Holder within the meaning of the
Securities Act, against any losses, claims, damages, liabilities and expenses (including reasonable
attorneys’ fees) to which they or any of them become subject under the Securities Act or the
Exchange Act, any fraud or state securities law, or any rule or regulation promulgated thereunder,
including, except as hereinafter provided, arising out of any untrue or alleged untrue statement of
a material fact contained in the Registration Statement or a Prospectus or any omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make the
statements made therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Purchaser shall not be liable to any Holder
(i) to the extent that any such loss, claim, damage, liability or expense arises out of, or is
based upon any untrue or alleged untrue statement, or any omission or alleged omission, if such
statement or omission shall have been made in reliance upon and in conformity with information
furnished to the Purchaser by or on behalf of such Holder (directly or indirectly) for use in the
preparation of the Registration Statement or such Prospectus, (ii) if a copy of any Prospectus
relating to the Registration Statement was not sent or given by or on behalf of such Holder to a
purchaser of the Holder’s Registrable Shares, if required by law so to have been delivered, at or
prior to the written confirmation of the sale of the Registrable Shares to such purchaser, and if
such Prospectus would have cured the defect giving rise to such loss, claim, damage, liability or
expense and a copy of such Prospectus was delivered or made available to such Holder, or (iii) to
the extent such loss, claim, damage, liability or expense arises out of or is based upon a
purported transfer of Registrable Shares at a time when attempted sales of the Registrable Shares
pursuant to the Registration Statement have been prohibited, including pursuant to Section
3; provided, further, that the indemnity contained in this Section 8(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement
is effected without the consent of the Purchaser (which consent shall not be unreasonably
withheld).
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(b) Subject to the terms and conditions of this Agreement, each Holder, severally and not
jointly, will indemnify, to the extent permitted by law, the Purchaser, its directors, officers,
employees and agents and each Person who controls the Purchaser (within the meaning of the
Securities Act) and each other Holder against any losses, claims, damages, liabilities and expenses
(including reasonable attorneys’ fees) to which they or any of them become subject under the
Securities Act or the Exchange Act, any fraud or state securities law, or any rule or regulation
promulgated thereunder, including, except as hereinafter provided, arising out of any untrue or
alleged untrue statement of a material fact contained in the Registration Statement or a Prospectus
or any omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements made therein, in the light of the circumstances under which
they were made, not misleading, in each case to the extent (and only to the extent) that such loss,
claim, damage, liability and expense occurs in reliance upon and in conformity with written
information furnished by such Holder expressly for use in connection with such registration;
provided, however, that the liability of each Holder hereunder shall not in any
event exceed the gross proceeds received by such Holder pursuant to such registration;
provided, further, however, that the indemnity agreement contained in this
Section 8(b) shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or expense if such settlement is effected without the consent of the Holder (which
consent shall not be unreasonably withheld). The Purchaser may, in its sole discretion, seek to
recover amounts that it or its directors, officers, employees and agents and control Persons may be
indemnified against pursuant to this Section 8(b) either from the Escrow Fund or directly
from the applicable Indemnifying Person (defined below); provided, however, that
the indemnification obligations of the Holders pursuant to this Section 8(b) shall not be
limited to the Escrow Fund.
(c) Each person entitled to indemnification under this Section 8 (an “Indemnified
Person”) shall give written notice to the party required to provide indemnification (the
“Indemnifying Person”) promptly after such Indemnified Person has actual knowledge of any
claim as to which indemnity may be sought and shall permit the Indemnifying Person to assume the
defense of any such claim and any litigation resulting therefrom; provided that the
Indemnified Person may participate in such defense at such Indemnified Person’s expense;
provided further that the failure of any Indemnified Person to give notice as
provided herein shall not relieve the Indemnifying Person of its obligations under this Section
8 except to the extent the Indemnifying Person is materially prejudiced thereby. No
Indemnifying Person, in the defense of any such claim or litigation, shall (except with the consent
of each Indemnified Person) consent to the entry of any judgment or enter into any settlement that
(i) does not include as an unconditional term thereof the giving by the claimant or plaintiff to
such Indemnified Person of a complete release from all liability in respect to such claim or
litigation or (ii) includes an admission of fault by the Indemnified Person. Each Indemnified
Person shall furnish such information regarding itself or the claim in question as an Indemnifying
Person may reasonably request in writing and as shall be reasonably required in connection with the
defense of such claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 8 from the Indemnifying Person
is unavailable to an Indemnified Person hereunder in respect of any losses, claims, damages,
liabilities or expenses referred to therein as a result of a judicial determination that such
indemnification may not be enforced in such case notwithstanding this Agreement, the
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Indemnifying Person, in lieu of indemnifying such Indemnified Person, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the
Indemnifying Person and Indemnified Person in connection with the actions which resulted in such
losses, claims, damages, liabilities or expense, as well as any other relevant equitable
considerations. The relative fault of such Indemnifying Person and Indemnified Person shall be
determined by reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of material fact or omission or alleged omission to state a
material fact, has been made by, or relates to information supplied by, such Indemnifying Person or
Indemnified Person, and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such action; provided, however, that 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.
9. Grant of Additional Registration Rights. Nothing in this Agreement shall limit the
Purchaser’s ability to grant registration rights to other Persons and entities in the Purchaser’s
sole and absolute discretion.
10. Miscellaneous.
(a) Amendment and Waiver. Except as otherwise expressly provided, this Agreement may
be amended or modified or the observance thereof may be waived only upon the written consent of the
Purchaser and the Holders who hold more than a majority of the Registrable Shares then outstanding.
(b) Notices.
(1) Any request, communication, or other notice required or permitted hereunder shall be in
writing and shall be deemed to have been duly given if sent by facsimile or delivered by
international courier service or personal delivery (as the situation may require) at the respective
address or facsimile number of the party receiving notice as set forth below. Any party hereto
may, by notice so given, change its address or facsimile number for future notice hereunder. All
such notices and other communications hereunder shall be deemed given (i) upon confirmation of
delivery, if sent by facsimile or (ii) upon delivery, if sent by recognized overnight or
international courier service or personal delivery:
| (i) | if to the Purchaser to: | |
| Omniture, Inc. | ||
| 000 Xxxx Xxxxxxxxxx Xxxxxx | ||
| Xxxx, Xxxx 00000 | ||
| Attention: Xxxxx X. Xxxxxxxxx | ||
| Telephone No.: (000) 000-0000 | ||
| Facsimile No.: (000) 000-0000 |
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| with copies (which shall not constitute notice) to: | ||
| Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation | ||
| 0000 Xxxx Xxxxxxxxxx Xxxxxxx, Xxxxx 000 | ||
| Xxxx Xxxx Xxxx, Xxxx, 00000-0000 | ||
| Facsimile No.: (000) 000-0000 | ||
| Attention: Xxxxxx X. X’Xxxxxx | ||
| And | ||
| Xxxxxx Xxxxxxx | ||
| Carmelite | ||
| 50 Victoria Embankment | ||
| Blackfriars | ||
| Xxxxxx XX0X ODX | ||
| England | ||
| Attention: Xxxxx Xxxx | ||
| Telephone No.: x00(0) 00 0000 0000 | ||
| Facsimile No.: x00(0) 00 0000 0000 | ||
| if to a Holder, at such address of such Holder as set forth on Exhibit A hereto | ||
| With a copy to: | ||
| Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP | ||
| Alder Castle | ||
| 00 Xxxxx Xxxxxx | ||
| Xxxxxx XX0X 0XX | ||
| Xxxxxxx | ||
| Attention: Xxxxxxxxxxx X. Grew | ||
| Telephone No.: x00(0) 00 0000 0000 | ||
| Facsimile No.: x00(0) 00 0000 0000 |
(c) Entire Agreement; Assignability. This Agreement, including the Schedules and
Exhibits hereto, the Purchase Agreement and the documents, instruments and other agreements among
the parties hereto referenced herein constitute the entire agreement among the parties with respect
to the subject matter hereof and supersede all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
permitted assigns. This Agreement is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder, except as otherwise expressly provided herein and shall
not be assigned by operation of law or otherwise, except by the Purchaser upon an acquisition of
the Purchaser.
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(d) Governing Law; Consent to Jurisdiction. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware as applied to contracts
made and to be performed entirely within the State of Delaware, without regard to such state’s
principles of conflicts of laws. The parties to this Agreement hereby agree to submit to personal
jurisdiction of the courts of the State of Delaware and of the United States of America located in
the State of Delaware.
(e) Counterparts. This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement and shall become effective when one or more
counterparts have been signed by each of the parties and delivered to the other party, it being
understood that all parties need not sign the same counterpart.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Purchaser and the Shareholders have executed or caused this
Registration Rights Agreement to be executed and delivered on the date first written above.
| “PURCHASER” | EXECUTED by OMNITURE, INC. | |||||
| By: | /s/ Xxxxxx X. Xxxxx | |||||
| Xxxxxx X. Xxxxx | ||||||
| President and Chief Executive Officer | ||||||
[Signature Page to Registration Rights Agreement]
“SHAREHOLDER”
|
XXXX XXXXXXXX | |||||
| By: | /s/ Xxxx Xxxxxxxx
|
[Signature Page to Registration Rights Agreement]
“SHAREHOLDER”
|
XXXXX XXXXXXXX | |||||
| By: | /s/ Xxxxx Xxxxxxxx
|
[Signature Page to Registration Rights Agreement]
“SHAREHOLDER”
|
JERUSALEM VENTURE PARTNERS | |||||
| IV L.P. | ||||||
| By: | /s/ Erel X. Xxxxxxxx
|
|||||
| Title: |
[Signature Page to Registration Rights Agreement]
“SHAREHOLDER”
|
JERUSALEM VENTURE PARTNERS | |||||
| IV — A L.P. | ||||||
| By: | /s/ Erel X. Xxxxxxxx
|
|||||
| Title: |
[Signature Page to Registration Rights Agreement]
“SHAREHOLDER”
|
JERUSALEM VENTURE PARTNERS | |||||
| ENTREPRENEUR FUND IV L.P. | ||||||
| By: | /s/ Erel X. Xxxxxxxx
|
|||||
| Title: |
[Signature Page to Registration Rights Agreement]
“SHAREHOLDER”
|
JERUSALEM VENTURE PARTNERS | |||||
| IV (ISRAEL) L.P. | ||||||
| By: | /s/ Erel X. Xxxxxxxx
|
|||||
| Title: |
[Signature Page to Registration Rights Agreement]
“SHAREHOLDER”
|
ALTA BERKELEY VI CV | |||||
| By: | /s/ Xxxxx X. Xxxx
|
|||||
| Title: | ||||||
| A Managing Director of | ||||||
| Alta Berkeley Associates B.V. | ||||||
| Managing General Partner | ||||||
| Alta Berkeley Venture Partners C.V. | ||||||
| General Partner | ||||||
| Alta-Berkeley VI CV |
[Signature Page to Registration Rights Agreement]
“SHAREHOLDER”
|
ALTA-BERKELEY VI SBYS CV | |||||
| By: | /s/ Xxxxx X. Xxxx
|
|||||
| Title: | ||||||
| A Managing Director of | ||||||
| Alta Berkeley Associates B.V. | ||||||
| Managing General Partner | ||||||
| Alta Berkeley Venture Partners C.V. | ||||||
| General Partner | ||||||
| Alta-Berkeley VI SBYS CV |
[Signature Page to Registration Rights Agreement]
“SHAREHOLDER”
|
XXXX XXXXXXXX | |||||
| By: | /s/ Xxxx Xxxxxxxx
|
|||||
| As Attorney for Xx. X. X. Xxxxxxxx |
[Signature Page to Registration Rights Agreement]
“SHAREHOLDER”
|
XXXXXX XXXXXX | |||||
| By: | /s/ Xxxxxx Xxxxxx
|
[Signature Page to Registration Rights Agreement]
“SHAREHOLDER”
|
NEW SPARK MEDIA PLC | |||||
| By: | /s/ Xxxxxx Xxxxxxxx
|
|||||
| Title: Chairman |
[Signature Page to Registration Rights Agreement]
“SHAREHOLDER”
|
XXXXXX LTD | |||||
| By: | /s/ Xxxxxx Xxxxxxxxxx
Title: Managing Director |
[Signature Page to Registration Rights Agreement]
“SHAREHOLDER”
|
XXXX XXXXXXXXXXXX | |||||
| By: | /s/ Xxxx Xxxxxxxxxxxx
|
[Signature Page to Registration Rights Agreement]
“SHAREHOLDER”
|
XXXXXXX XXXXX | |||||
| By: | /s/ Xxxxxxx Xxxxx
|
[Signature Page to Registration Rights Agreement]
“SHAREHOLDER”
|
XXXXX XXXXXXXXX XXXXX | |||||
| By: | /s/ Xxxxx Xxxxxxxxx Xxxxx
|
[Signature Page to Registration Rights Agreement]
“SHAREHOLDER”
|
XXXXXX XXXXXX | |||||
| By: | /s/ Xxxxxx Xxxxxx
|
[Signature Page to Registration Rights Agreement]
“SHAREHOLDER”
|
XXXXXXX XXXXXXX | |||||
| By: | /s/ Xxxxxxx Xxxxxxx
|
[Signature Page to Registration Rights Agreement]
“SHAREHOLDER”
|
XXXXXXX XXXX | |||||
| By: | /s/ Xxxxxxx Xxxx
|
[Signature Page to Registration Rights Agreement]
“SHAREHOLDER”
|
FIANN X’XXXXX | |||||
| By: | /s/ Fiann X’Xxxxx
|
[Signature Page to Registration Rights Agreement]
“SHAREHOLDER”
|
XXXX XXXXXXX | |||||
| By: | /s/ Xxxx Xxxxxxx
|
[Signature Page to Registration Rights Agreement]
“SHAREHOLDER”
|
XXXXX XXXXXX | |||||
| By: | /s/ Xxxxx Xxxxxx
|
[Signature Page to Registration Rights Agreement]
“SHAREHOLDER”
|
XXXXX XXXXXXXX | |||||
| By: | /s/ Xxx Xxxxx as Attorney-in-Fact
|
[Signature Page to Registration Rights Agreement]
“SHAREHOLDER”
|
XXXXXX XXXXXXXX | |||||
| By: | /s/ Xxxxxx Xxxxxxxx
|
[Signature Page to Registration Rights Agreement]
“SHAREHOLDER”
|
THE CAPITAL FUND NO. 1 L.P. | |||||
| By: | /s/ Xxx X. Xxxxxxx
|
|||||
| Title: Investment Director |
[Signature Page to Registration Rights Agreement]
“SHAREHOLDER”
|
XXXXXXX XXXXXXX | |||||
| By: | /s/ Xxxxxxx Xxxxxxx
|
[Signature Page to Registration Rights Agreement]
EXHIBIT A
SCHEDULE OF HOLDERS
| Name and Address of Xxxxxx | ||||
| Xxxx Xxxx Xxxxxxxxx Xxxxxxxx | ||||
| Xxxx-Berkeley VI BV | ||||
| Alta-Berkeley VI SbyS CV | ||||
| Xxxxx Xxxxxxxx | ||||
| Jerusalem Venture Partners Entrepreneurs Fund IV L.P | ||||
| Jerusalem Venture Partners IV A LP | ||||
| Jerusalem Venture Partners IV LP | ||||
| Jerusalem Venture Partners IV (Israel) L.P | ||||
| Xxxxxxx X Xxxxxxxx | ||||
| Xxxxxx Xxxx Xxxxxxxxx | ||||
| Xxxxxxx Xxxxx | ||||
| Assaf Xxxxxxxx | ||||
| Xxxxx Xxxxxxxxx Xxxxx | ||||
| Fiann X’Xxxxx | ||||
| Xxxxx Xxxxxx | ||||
| Xxxxxx Xxxxxx | ||||
| Xx Xxxxxxx Xxxxxxx | ||||
| New Media Spark PLC | ||||
| Xxxxxxxx Xxxxxxxxxxxx | ||||
| Xxxxxxx Xxxxxxx | ||||
| Xxxx Xxxxxxx | ||||
| Xxxxxx Xxxxxx |
| Xxxxxx Limited | ||||
| Xxxxxxx Xxxx | ||||
| The Capital Fund No.1 L.P |
