AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Exhibit 4.2
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Amended and Restated Registration Rights Agreement (this “Agreement”) is made and entered
into as of March 27, 2006, by and among Omniture, Inc., a Delaware corporation (the “Company”), the
persons and entities listed on Exhibit A attached hereto (the “Investors”), the persons and
entities listed on Exhibit B attached hereto (the “Founders”) and the persons and entities
listed on Exhibit C attached hereto (the “Additional Holders”).
WHEREAS, certain of the Investors (the “Prior Investors”) are holders of outstanding shares of
the Company’s Series A-1 Preferred Stock (“Series A-1 Stock”), Series A-2 Preferred Stock (“Series
A-2 Stock”), Series A-3 Preferred Stock (“Series A-3 Stock”), Series A-4.1 Preferred Stock (“Series
A-4.1 Stock”), Series A-5 Preferred Stock (“Series A-5 Stock”), Series B Preferred Stock (“Series B
Stock”), Series B-1 Preferred Stock (“Series B-1 Stock”), Series B-2 Preferred Stock (“Series B-2
Stock”), Series C Preferred Stock and Series C-1 Preferred Stock (collectively, “Series C Stock”);
WHEREAS, the Prior Investors have been granted certain registration rights under the Amended
and Restated Registration Rights Agreement dated as of June 9, 2005 (the “Prior Rights Agreement”);
WHEREAS, the Company, the Prior Investors and the Founders desire to enter into this Agreement
in order to amend, restate and replace their rights and obligations under the Prior Rights
Agreement with the rights and obligations set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises hereinafter
set forth, the parties hereto agree as follows:
1. REGISTRATION RIGHTS.
1.1 Definitions. For purposes of this Section 1:
(a) Registration. The terms “register, “registration” and “registered” refer to a
registration effected by preparing and filing a registration statement in compliance with the U.S.
Securities Act of 1933, as amended (the “Securities Act”), and the declaration or ordering of
effectiveness of such registration statement.
(b) Registrable Securities. The term “Registrable Securities” means (1) all the
shares of Common Stock of the Company issued or issuable upon the conversion of any shares of
Preferred Stock that are now owned or may hereafter be acquired by any Investor or any Investor’s
permitted successors and assigns; (2) all the shares of Common Stock of the Company held by the
Founders that are now owned or may hereafter be acquired by any Founder or any Founder’s permitted
successors and assigns (the “Founders’ Shares”); (3) all the shares of Common Stock of the Company
held by the Additional Holders that are owned as of the date of this Agreement (the “Additional
Holders’ Shares”); and (4) any shares of Common Stock of the Company issued (or issuable upon the
conversion or exercise of any warrant, right or other security
which is issued) (i) as a dividend or other distribution with respect to, or in exchange for
or in replacement of, all such shares of Common Stock described in clause (1), (2) or (3) of this
Section 1.1(b); excluding in all cases, however, any Registrable Securities sold by a
person in a transaction in which rights under this Section 1 are not assigned in accordance with
this Agreement or any Registrable Securities with respect to which, pursuant to Section 1.11
hereof, the holders are no longer entitled to registration rights pursuant to Sections 1.2, 1.3 or
1.4 hereof; provided, however, that notwithstanding anything herein to the
contrary, the Founders’ Shares and any shares of Common Stock described in clause (4) of this
Section 1.1(b) that are issued in respect of any Founders’ Shares (which with the Founders’ Shares
are collectively hereinafter referred to as the “Excluded Shares”), shall not be counted as
Registrable Securities entitling the Founders to be an Initiating Holder for purposes of Section
1.2 of this Agreement; provided, further that notwithstanding anything herein to
the contrary, the Additional Holders’ Shares and any shares of Common Stock described in clause (4)
of this Section 1.1(b) that are issued in respect of any Additional Holders’ Shares (which with the
Additional Holders’ Shares are collectively hereinafter referred to as the “Additional Holders
Excluded Shares”), shall not be counted as Registrable Securities entitling the Additional Holders
to be an Initiating Holder for purposes of Section 1.2 of this Agreement.
(c) Registrable Securities Then Outstanding. The number of shares of “Registrable
Securities then outstanding” shall mean the number of shares of Common Stock which are Registrable
Securities that are then (1) issued and outstanding or (2) issuable pursuant to the exercise or
conversion of then outstanding and then exercisable and qualifying options, warrants or convertible
securities.
(d) Holder. The term “Holder” means any person owning of record Registrable
Securities or any assignee of record of such Registrable Securities to whom rights set forth herein
have been duly assigned in accordance with this Agreement; provided, however, that
for purposes of this Agreement, a record holder of shares of Preferred Stock convertible into such
Registrable Securities shall be deemed to be the Holder of such Registrable Securities;
provided, further, that a holder of Founder Excluded Shares (as defined in Section
1.1(b)) or Additional Holders Excluded Shares (as defined in Section 1.1(b))shall not be a Holder
with respect to such Founder Excluded Shares or Additional Holders Excluded Shares for purposes of
Section 1.2 of this Agreement; and provided, further, that the Company shall in no
event be obligated to register shares of Preferred Stock, and that Holders of Registrable
Securities will not be required to convert their shares of Preferred Stock into Common Stock in
order to exercise the registration rights granted hereunder, until immediately before the closing
of the offering to which the registration relates.
(e) Form S-3. The term “Form S-3” means such form under the Securities Act as is in
effect on the date hereof or any successor registration form under the Securities Act subsequently
adopted by the SEC which permits inclusion or incorporation of substantial information by reference
to other documents filed by the Company with the SEC.
(f) SEC. The term “SEC” or “Commission” means the U.S. Securities and Exchange
Commission.
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1.2 Demand Registration.
(a) Request by Holders. If the Company shall receive at any time after six (6) months
after the effective date of the Company’s initial public offering of its securities pursuant to a
registration filed under the Securities Act, a written request from the Holders of at least 25% of
the Registrable Securities then outstanding (the “Initiating Holders”) that the Company file a
registration statement under the Securities Act covering the registration of Registrable Securities
pursuant to this Section 1.2, then the Company shall, within twenty (20) days after the receipt of
such written request, give written notice of such request (the “Request Notice”) to all Holders,
and effect, as soon as practicable (but in no event more than ninety (90) days following the
request from the Initiating Holders to register such shares), the registration under the Securities
Act of all Registrable Securities which Holders request to be registered and included in such
registration by written notice given by such Holders to the Company within twenty (20) days after
receipt of the Request Notice, subject only to the limitations of this Section 1; provided
that the Registrable Securities requested by all Holders to be registered pursuant to such request
must have an anticipated aggregate public offering price (before any underwriting discounts and
commissions) of not less than $7,500,000.
(b) Underwriting. If the Initiating Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, then they shall so advise the
Company as a part of their request made pursuant to this Section 1.2 and the Company shall include
such information in the written notice referred to in Section 1.2(a). In such event, the right of
any Holder to include his, her, or its Registrable Securities in such registration shall be
conditioned upon such Holder’s participation in such underwriting and the inclusion of such
Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority
in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall enter into an underwriting
agreement in customary form with the managing underwriter or underwriters selected for such
underwriting by the Company. Notwithstanding any other provision of this Section 1.2, if the
underwriter(s) advise(s) the Company in writing that marketing factors require a limitation of the
number of securities to be underwritten then the Company shall so advise all Holders of Registrable
Securities that would otherwise be registered and underwritten pursuant hereto, and the number of
Registrable Securities that may be included in the underwriting shall be reduced as required by the
underwriter(s) and allocated among the Holders of Registrable Securities on a pro rata basis
according to the number of Registrable Securities then outstanding held by each Holder requesting
registration (including the Initiating Holders); provided, however, that the number
of shares of Registrable Securities to be included in such underwriting and registration shall not
be reduced unless all other securities of the Company are first entirely excluded from the
underwriting and registration. Any Registrable Securities excluded and withdrawn from such
underwriting shall be withdrawn from the registration.
(c) Maximum Number of Demand Registrations. The Company is obligated to effect only
two (2) such registrations pursuant to this Section 1.2.
(d) Deferral. Notwithstanding the foregoing, if the Company shall furnish to Holders
requesting the filing of a registration statement pursuant to this Section 1.2, a certificate
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signed by the President or Chief Executive Officer of the Company stating that in the good
faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the
Company and its Founders for such registration statement to be filed and it is therefore essential
to defer the filing of such registration statement, then the Company shall have the right to defer
such filing for a period of not more than ninety (90) days after receipt of the request of the
Initiating Holders; provided, however, that the Company may not utilize this right
more than once in any twelve (12) month period and shall not register shares for its own account or
the account of others during such 90-day period.
(e) Expenses. All expenses incurred in connection with a registration pursuant to
this Section 1.2, including without limitation all registration and qualification fees, printers’
and accounting fees, fees and disbursements of counsel for the Company, and the reasonable fees and
disbursements of one (1) counsel for the selling Holders (but excluding underwriters’
discounts and commissions), shall be borne by the Company. However, each Holder participating in a
registration pursuant to this Section 1.2 shall bear such Holder’s proportionate share (based on
the number of shares sold by such Holder over the total number of shares included in such
registration at the time it is declared effective) of all discounts, commissions or other amounts
payable to underwriters or brokers in connection with such offering (but excluding all
out-of-pocket expenses as described in the underwriting agreement). Notwithstanding the foregoing,
the Company shall not be required to pay for any expenses of any registration proceeding begun
pursuant to this Section 1.2 if the registration request is subsequently withdrawn at the request
of the Holders of a majority of the Registrable Securities to be registered, unless the Holders of
a majority of the Registrable Securities then outstanding agree to forfeit their right to one (1)
demand registration pursuant to this Section 1.2 (in which case such right shall be forfeited by
all Holders of Registrable Securities); provided, further, however, that if at the
time of such withdrawal, the Holders have learned of a material adverse change in the condition,
business, or prospects of the Company not known to the Holders at the time of their request for
such registration and have withdrawn their request for registration with reasonable promptness
after learning of such material adverse change, then the Holders shall not be required to pay any
of such expenses and shall retain their demand registration rights pursuant to this Section 1.2.
1.3 Piggyback Registrations. The Company shall notify all Holders of Registrable
Securities in writing at least thirty (30) days prior to filing any registration statement under
the Securities Act for purposes of effecting a public offering of securities of the Company
(including, but not limited to, registration statements relating to secondary offerings of
securities of the Company, but excluding registration statements relating to any
registration under Section 1.2 or Section 1.4 of this Agreement or to any employee benefit plan or
a corporate reorganization or other transaction covered by Rule 145 promulgated under the
Securities Act, or a registration on any registration form which does not permit secondary sales or
does not include substantially the same information as would be required to be included in a
registration statement covering the sale of Registrable Securities,) and will afford each such
Holder an opportunity to include in such registration statement all or any part of the Registrable
Securities then held by such Holder. Each Holder desiring to include in any such registration
statement all or any part of the Registrable Securities held by such Holder shall, within twenty
(20) days after receipt of the above-described notice from the Company, so notify the Company in
writing, and in such notice shall inform the Company of the number of Registrable Securities such
Holder wishes to include in such registration
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statement. If a Holder decides not to include all of its Registrable Securities in any
registration statement thereafter filed by the Company, such Holder shall nevertheless continue to
have the right to include any Registrable Securities in any subsequent registration statement or
registration statements as may be filed by the Company with respect to offerings of its securities,
all upon the terms and conditions set forth herein. Notwithstanding anything in this Agreement to
the contrary, the provisions of this Section 1.3 shall not apply with respect to the Additional
Holders and the Additional Holders’ Excluded Shares in connection with any registration statement
(including any amendments or supplements to any such registration statement) filed in connection
with the Company’s initial public offering of its securities pursuant to a registration statement
filed under the Securities Act.
(a) Underwriting. If a registration statement under which the Company gives notice
under this Section 1.3 is for an underwritten offering, then the Company shall so advise the
Holders of Registrable Securities. In such event, the right of any such Holder’s Registrable
Securities to be included in a registration pursuant to this Section 1.3 shall be conditioned upon
such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable
Securities in the underwriting to the extent provided herein. All Holders proposing to distribute
their Registrable Securities through such underwriting shall enter into an underwriting agreement
in customary form with the managing underwriter or underwriter(s) selected for such underwriting.
Notwithstanding any other provision of this Agreement, if the managing underwriter determine(s) in
good faith that marketing factors require a limitation of the number of shares to be underwritten,
then the managing underwriter(s) may exclude shares (including Registrable Securities) from the
registration and the underwriting, and the number of shares that may be included in the
registration and the underwriting shall be allocated, first, to the Company, next to Holders
requesting inclusion of their Registrable Securities in such registration statement on a pro rata
basis based on the number of Registrable Securities each such Holder has requested to be included
in the registration; provided, however., that the right of the underwriters to
exclude shares (including Registrable Securities) from the registration and underwriting as
described above shall be restricted so that: (i) the number of Registrable Securities held by the
Investors included in any such registration is not reduced below 25% of the shares included in the
registration, except for a registration relating to the Company’s initial public offering, from
which all Registrable Securities may be excluded; and (ii) all shares that are not Registrable
Securities shall first be excluded from such registration and underwriting before any Registrable
Securities are so excluded. If any Holder disapproves of the terms of any such underwriting, such
Holder may elect to withdraw therefrom by written notice, given in accordance with Section 3.1
hereof, to the Company and the underwriter, delivered at least twenty (20) days prior to the
effective date of the registration statement. Any Registrable Securities excluded or withdrawn
from such underwriting shall be excluded and withdrawn from the registration. For any Holder that
is a partnership or corporation, the partners, retired partners and Founders of such Holder, or the
estates and family members of any such partners and retired partners and any trusts for the benefit
of any of the foregoing persons shall be deemed to be a single “Holder,” and any pro rata reduction
with respect to such “Holder” shall be based upon the aggregate amount of shares carrying
registration rights owned by all entities and individuals included in such “Holder,” as defined in
this sentence.
(b) Expenses. All expenses incurred in connection with the first registration
pursuant to this Section 1.3, including without limitation all registration and qualification
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fees, printers’ and accounting fees, fees and disbursements of counsel for the Company, and
the reasonable fees and disbursements of one (1) counsel for the selling Holders (but
excluding underwriters’ discounts and commissions), shall be borne by the Company.
However, each Holder participating in a registration pursuant to this Section 1.3 shall bear such
Holder’s proportionate share (based on the number of shares sold by such Holder over the total
number of shares included in such registration at the time it goes effective) of all discounts,
commissions or other amounts payable to underwriters or brokers in connection with such offering
(but excluding all out-of- pocket expenses as described in the underwriting agreement), and
with respect to any registrations beyond the first one under this Section 1.3, any registration and
qualifications fees, printers’ and accounting fees, and any fees and disbursements of any counsel
for the participating Holders.
1.4 Form S-3 Registration. In case the Company shall receive from any Holder or
Holders of Registrable Securities then outstanding a written request or requests that the Company
effect a registration on Form S-3 and any related qualification or compliance with respect to all
or a part of the Registrable Securities owned by such Holder or Holders, then the Company will do
the following:
(a) Notice. Promptly give written notice of the proposed registration and the
Holder’s or Holders’ request therefor, and any related qualification or compliance, to all other
Holders of Registrable Securities.
(b) Registration. As soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or facilitate the sale
and distribution of all or such portion of such Holder’s or Holders’ Registrable Securities as are
specified in such request, together with all or such portion of the Registrable Securities of any
other Holder or Holders joining in such request as are specified in a written request given within
twenty (20) days after receipt of such written notice from the Company; provided,
however, that the Company shall not be obligated to effect any such registration,
qualification or compliance pursuant to this Section 1.4:
(1) if Form S-3 is not available for such offering;
(2) if the Holders, together with the holders of any other securities of the Company entitled
to inclusion in such registration, propose to sell Registrable Securities and such other securities
(if any) at an aggregate price to the public of less than $3,000,000;
(3) if the Company shall furnish to the Holders a certificate signed by the President or Chief
Executive Officer of the Company stating that in the good faith judgment of the Board of Directors
of the Company, it would be seriously detrimental to the Company and its Founders for such Form S-3
Registration to be effected at such time, in which event the Company shall have the right to defer
the filing of the Form S-3 registration statement no more than once during any twelve (12) month
period for a period of not more than ninety (90) days after receipt of the request of the Holder or
Holders under this Section 1.4, but shall not register shares for its own account or the account of
others during such ninety (90) day period;
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(4) if the Company has, within the twelve (12) month period preceding the date of such
request, already effected one (1) registration on Form S-3 for the Holders pursuant to this Section
1.4; or
(5) in any particular jurisdiction in which the Company would be required to qualify to do
business or to execute a general consent to service of process in effecting such registration,
qualification or compliance.
(c) Expenses. Subject to the foregoing, the Company shall file a Form S-3
registration statement covering the Registrable Securities and other securities so requested to be
registered pursuant to this Section 1.4 as soon as practicable after receipt of the request or
requests of the Holders for such registration. The Company shall pay all expenses incurred in
connection with the first registration requested pursuant to this Section 1.4, (excluding
underwriters’ or brokers’ discounts and commissions), including without limitation all filing,
registration and qualification, printers’ and accounting fees and the reasonable fees and
disbursements of one (1) counsel for the selling Holder or Holders and counsel for the Company.
However, each Holder participating in a registration pursuant to this Section 1.4 shall bear such
Holder’s proportionate share (based on the number of shares sold by such Holder over the total
number of shares included in such registration at the time it goes effective) of all discounts,
commissions or other amounts payable to underwriters or brokers in connection with such offering
(but excluding all out-of- pocket expenses as described in the underwriting agreement), and
with respect to any registration beyond the first one under this Section 1.4, any registration and
qualification fees, printers’ and accounting fees, and any fees and disbursements of any counsel
for the participating Holders.
(d) Not Demand Registration. Form S-3 registrations shall not be deemed to be demand
registrations as described in Section 1.2 above.
1.5 Obligations of the Company. Whenever required to effect the registration of any
Registrable Securities under this Agreement, the Company shall, as expeditiously as reasonably
possible:
(a) Prepare and file with the SEC a registration statement with respect to such Registrable
Securities and use all commercially reasonable efforts to cause such registration statement to
become effective, and, upon the request of the Holders of a majority of the Registrable Securities
registered thereunder, keep such registration statement effective for up to ninety (90) days.
(b) Prepare and file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection with such registration statement as may be
necessary to comply with the provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement.
(c) Furnish to the Holders such number of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and such other documents as
they may reasonably request in order to facilitate the disposition of the Registrable Securities
owned by them that are included in such registration.
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(d) Use all commercially reasonable efforts to register and qualify the securities covered by
such registration statement under such other securities or Blue Sky laws of such jurisdictions as
shall be reasonably requested by the Holders, provided that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and perform its obligations
under an underwriting agreement, in usual and customary form, with the managing underwriter(s) of
such offering. Each Holder participating in such underwriting hereby agrees to also enter into and
perform its obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such registration statement at any
time when a prospectus relating thereto is required to be delivered under the Securities Act of the
happening of any event as a result of which the prospectus included in such registration statement,
as then in effect, includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing.
(g) Furnish, at the request of any Holder requesting registration of Registrable Securities,
on the date that such Registrable Securities are delivered to the underwriters for sale, if such
securities are being sold through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such securities becomes
effective: (1) an opinion, dated as of such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily given to underwriters in an
underwritten public offering and reasonably satisfactory to a majority in interest of the Holders
requesting registration, addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (2) a “comfort” letter dated as of such date, from the
independent certified public accountants of the Company, in form and substance as is customarily
given by independent certified public accountants to underwriters in an underwritten public
offering and reasonably satisfactory to a majority in interest of the Holders requesting
registration, addressed to the underwriters, if any, and to the Holders requesting registration of
Registrable Securities.
1.6 Furnish Information. It shall be a condition precedent to the obligations of the
Company to take any action pursuant to Sections 1.2, 1.3 or 1.4 that the selling Holders shall
furnish to the Company such information regarding themselves, the Registrable Securities held by
them, and the intended method of disposition of such securities as shall be reasonably required to
timely effect the registration of their Registrable Securities.
1.7 Delay of Registration. No Holder shall have any right to obtain or seek an
injunction restraining or otherwise delaying any such registration as the result of any controversy
that might arise with respect to the interpretation or implementation of this Section 1.
1.8 Indemnification. In the event any Registrable Securities are included in a
registration statement under Sections 1.2, 1.3 or 1.4:
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(a) By the Company. To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, the partners, members, managing members, officers, employees and
directors of each Holder, any underwriter (as defined in the Securities Act) for such Holder and
each person, if any, who controls such Holder or underwriter within the meaning of the Securities
Act or the Securities Exchange Act of 1934, as amended (the “Exchange Act”), against any losses,
claims, damages, or liabilities (joint or several) to which they may become subject under the
Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations (collectively, the “Violations” and, individually, a
"Violation”): (1) any untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto; or (2) the omission or alleged omission to state
therein a material fact required to be stated therein, or necessary to make the statements therein
not misleading; or (3) any violation or alleged violation by the Company of the Securities Act, the
Exchange Act, any federal or state securities law or any rule or regulation promulgated under the
Securities Act, the Exchange Act or any federal or state securities law in connection with the
offering covered by such registration statement. The Company will reimburse each such Holder,
partner, member, managing member, officer, employee or director, underwriter or controlling person
for any legal or other expenses reasonably incurred by them as such expenses are incurred. Such
expenses shall be paid within three months after a request for reimbursement has been received by
the Company, in connection with investigating or defending any such loss, claim, damage, liability
or action; provided, however, that the indemnity agreement contained in this
Section 1.8(a) shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the Company (which
consent shall not be unreasonably withheld), nor shall the Company be liable in any such case for
any such loss, claim, damage, liability or action to the extent such Violation occurred in reliance
upon and in conformity with written information furnished expressly for use in connection with such
registration by such Holder, partner, officer, director, underwriter or controlling person of such
Holder.
(b) By Selling Holders. To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its officers who have
signed the registration statement, each person, if any, who controls the Company within the meaning
of the Securities Act, any underwriter and any other Holder selling securities under such
registration statement or any of such other Holder’s partners, members, managing members,
directors, employees or officers or any person who controls such Holder within the meaning of the
Securities Act or the Exchange Act, against any losses, claims, damages or liabilities (joint or
several) to which the Company or any such director, officer, employee or controlling person,
underwriter or other such Holder, partner or director, member, managing member, officer, employee
or controlling person of such other Holder may become subject under the Securities Act, the
Exchange Act or other federal or state law, insofar as such losses, claims, damages or liabilities
(or actions in respect thereto) arise out of any Violation, in each case to the extent (and only to
the extent) that such Violation occurred in reliance upon and in conformity with written
information furnished by such Holder expressly for use in connection with such registration. Each
such Holder will reimburse any legal or other expenses reasonably incurred by the Company or any
such director, officer, controlling person, underwriter or other Holder, partner, member, managing
member, officer, employee, director or controlling person of such other Holder in connection with
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investigating or defending any such loss, claim, damage, liability or action as such expenses
are incurred. Such expenses shall be paid within three months after a request for reimbursement
has been received by the indemnifying Holder, provided, however, that the indemnity
agreement contained in this Section 1.8(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected without the consent of
the Holder, which consent shall not be unreasonably withheld; and provided,
further, that the total amounts payable in indemnity by a Holder under this Section 1.8(b)
in respect of any Violation shall not exceed the net proceeds received by such Holder in the
registered offering out of which such Violation arises.
(c) Notice. Promptly after receipt by an indemnified party under this Section 1.8 of
notice of the commencement of any action (including any governmental action), such indemnified
party will, if a claim in respect thereof is to be made against any indemnifying party under this
Section 1.8, deliver to the indemnifying party a written notice of the commencement thereof. The
indemnifying party shall have the right to participate in, and, to the extent the indemnifying
party so desires, jointly with any other indemnifying party similarly noticed, to assume the
defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own counsel, with the
fees and expenses to be paid by the indemnifying party, if representation of such indemnified party
by the counsel retained by the indemnifying party would be inappropriate due to actual or potential
conflict of interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the indemnifying party within
a reasonable time of the commencement of any such action, if prejudicial to its ability to defend
such action, shall relieve such indemnifying party of any liability to the indemnified party under
this Section 1.8 only to the extent of such prejudice, and the omission so to deliver written
notice to the indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 1.8.
(d) Defect Eliminated in Final Prospectus. The foregoing indemnity agreements of the
Company and Holders are subject to the condition that, insofar as they relate to any Violation made
in a preliminary prospectus but eliminated or remedied in the amended prospectus on file with the
SEC at the time the registration statement in question becomes effective or the amended prospectus
filed with the SEC pursuant to SEC Rule 424(b) (the “Final Prospectus”), such indemnity agreement
shall not inure to the benefit of any person if a copy of the Final Prospectus was furnished to the
indemnified party and was not furnished to the person asserting the loss, liability, claim or
damage at or prior to the time such action is required by the Securities Act.
(e) Contribution. If the indemnification provided for in this Section 1.8 is held by
a court of competent jurisdiction to be unavailable to an indemnified party with respect to any
loss, liability, claim, damage or expense referred to herein, then the indemnifying party, in lieu
of indemnifying the indemnified party, shall contribute to the amount paid or payable by such
indemnified party with respect to such loss, liability, claim, damage or expense in the proportion
that is appropriate to reflect the relative fault of the indemnifying party and the indemnified
party in connection with the statements or omissions that resulted in such loss, liability, claim,
damage or expense, as well as any other relevant equitable considerations. The relative fault of
the indemnifying party and the indemnified party shall be determined by reference to, among other
-10-
things, whether the untrue or alleged untrue statement of material fact or the omission to
state a material fact relates to information supplied by the indemnifying party or by the
indemnified party, and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. In any such case, (A) no such Holder
will be required to contribute any amount in excess of the net proceeds received by such Holder
pursuant to sales under such registration statement less any amounts paid pursuant to Section
1.8(b); and (B) no person or entity guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) will be entitled to contribution from any person or entity who
was not guilty of such fraudulent misrepresentation.
(f) Conflict with Underwriting Agreement. Notwithstanding the foregoing, to the
extent that the provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are in conflict with the
foregoing provisions, the provisions in the underwriting agreement will control.
(g) Survival. The obligations of the Company and Holders under this Section 1.8 shall
survive the completion of any offering of Registrable Securities in a registration statement, and
otherwise.
1.9 “Market Stand-Off” Agreement. Each Holder hereby agrees that it shall not, to the
extent requested by the Company or an underwriter of securities of the Company, sell or otherwise
transfer or dispose of any Registrable Securities or other shares of stock of the Company then
owned by such Holder (except for shares acquired on the public market and shares included in the
first registration statement of the Company filed under the Securities Act and other than transfers
to donees or partners of the Holder who agree to be similarly bound) for up to 90 days following
the effective date of any registration statement of the Company filed under the Securities Act (or
180 days following the effective date of the first registration statement of the Company filed
under the Securities Act); provided, however, that:
(a) all officers and directors of the Company then holding Common Stock of the Company and all
stockholders holding in the aggregate at least 1% of the total equity of the Company, enter into
similar agreements; and
(b) if any Holder is released from the obligations of this Section 1.9, then all Holders shall
be similarly released on a pro rata basis.
For purposes of this Section 1.9, the term “Company” shall include any wholly-owned subsidiary of
the Company into which the Company merges or consolidates. In order to enforce the foregoing
covenant, the Company shall have the right to place restrictive legends on the certificates
representing the shares subject to this Section and to impose stop transfer instructions with
respect to the Registrable Securities and such other shares of stock of each Holder (and the shares
or securities of every other person subject to the foregoing restriction) until the end of such
period. Each Holder further agrees to enter into any agreement reasonably required by the
underwriters to implement the foregoing within any reasonable timeframe so requested.
-11-
1.10 Rule 144 Reporting. With a view to making available the benefits of certain
rules and regulations of the Commission which may at any time permit the sale of the Registrable
Securities to the public without registration, after such time as a public market exists for the
Common Stock of the Company, the Company agrees to:
(a) Make and keep public information available, as those terms are understood and defined in
Rule 144 under the Securities Act, at all times after the effective date of the first registration
under the Securities Act filed by the Company for an offering of its securities to the general
public;
(b) Use reasonable, diligent efforts to file with the Commission in a timely manner all
reports and other documents required of the Company under the Securities Act and the Exchange Act
(at any time after it has become subject to such reporting requirements); and
(c) So long as a Holder owns any Registrable Securities, to furnish to the Holder forthwith
upon request a written statement by the Company as to its compliance with the reporting
requirements of said Rule 144 (at any time after ninety (90) days after the effective date of the
first registration statement filed by the Company for an offering of its securities to the general
public), and of the Securities Act and the Exchange Act (at any time after it has become subject to
the reporting requirements of the Exchange Act), a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents of the Company as a Holder may
reasonably request in availing itself of any rule or regulation of the Commission allowing a Holder
to sell any such securities without registration (at any time after the Company has become subject
to the reporting requirements of the Exchange Act).
1.11 Termination of the Company’s Obligations. The Company shall have no obligations
pursuant to Sections 1.2 through 1.4 with respect to the earlier of: (a) any request or requests
for registration made by any Holder on a date more than five (5) years after the dosing date of the
Company’s initial public offering; (b) any Registrable Securities proposed to be sold by a Holder
in a registration pursuant to Section 1.2, 1.3 or 1.4 if, in the opinion of counsel to the Company,
all such Registrable Securities proposed to be sold by a Holder may be sold in a single three (3)
month period without registration under the Securities Act pursuant to Rule 144 under the
Securities Act; or (c) the consummation of a Liquidation Event, as that term is defined in the
Company’s Restated Certificate of Incorporation (as amended from time to time).
1.12 Limitations on Subsequent Registration Rights. From and after the date of this
Agreement, the Company shall not, without the prior written consent of the Holders of a majority of
the Series B Stock and Series C Stock then outstanding, enter into any agreement with any holder or
prospective holder of any securities of the Company which could result in (i) the Company being
required to file its first Registration Statement or (ii) a registration statement with respect to
any shares of the Company’s capital stock being declared effective prior to six (6) months after
the effective date of the Company’s initial public offerings of its securities pursuant to a
registration statement filed under the Securities Act.
-12-
2. ASSIGNMENT AND AMENDMENT.
2.1 Assignment. Notwithstanding anything herein to the contrary, the registration
rights of a Holder under Section 1 hereof may be assigned only to: (a) a party who acquires at
least 100,000 shares of Preferred Stock and/or an equivalent number (on an as converted basis) of
Registrable Securities issued upon conversion thereof or (b) a partner, limited partner, affiliate
(a person or entity controlling, controlled by or under common control with a Holder, where control
means majority voting control) of a Holder, member or former member; provided,
however that no party may be assigned any of the foregoing rights unless the Company is
given written notice by the assigning party at the time of such assignment stating the name and
address of the assignee and identifying the securities of the Company as to which the rights in
question are being assigned; provided, further, that any such assignee of such
rights is not deemed by the Board of Directors of the Company, in its reasonable judgment, to be a
competitor of the Company; and provided, further that any such assignee shall
receive such assigned rights subject to all the terms and conditions of this Agreement, including
without limitation the provisions of this Section 2. Notwithstanding the foregoing, assignments may
be made without the Company’s consent or obtaining the minimum number of shares of Registrable
Securities noted above if the assignment is to a partner, limited partner, affiliate, member or
former member.
2.2 Amendment and Waiver of Rights. Any provision of this Agreement may be amended
and the observance thereof may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company and Investors (and/or
any of their permitted successors or assigns) holding shares of Preferred Stock and/or Conversion
Stock representing and/or convertible into a majority of all the Investors’ Shares (as defined
below); provided, however, that the piggyback registration rights granted to the
Founders under Section 1.3 of this Agreement may not be eliminated or materially and adversely
changed without the written consent of persons holding a majority of the Founders’ Shares;
provided, further, that the piggyback registration rights granted to the Additional
Holders under Section 1.3 of this Agreement may not be eliminated or materially and adversely
changed without the written consent of persons holding a majority of the Additional Holders’
Shares. As used herein, the term “Investors’ Shares” shall mean the shares of Common Stock then
issued or issuable upon conversion of all then outstanding shares of Preferred Stock plus all then
outstanding shares of Conversion Stock that were issued upon the conversion of any shares of
Preferred Stock. Any amendment or waiver effected in accordance with this Section 2.2 shall be
binding upon each Investor, each Holder, each permitted successor or assignee of such Investor or
Holder and the Company.
3. GENERAL PROVISIONS.
3.1 Notices. Any and all notices required or permitted to be given to a party
pursuant to the provisions of this Agreement will be in writing and will be effective and deemed to
provide such party sufficient notice under this Agreement on the earliest of the following: (a) at
the time of personal delivery, if delivery is in person; (b) at the time of transmission by
facsimile, addressed to the other party at its facsimile number specified herein (or hereafter
modified by subsequent notice to the parties hereto), with confirmation of receipt made by both
telephone and printed confirmation sheet verifying successful transmission of the facsimile; (c)
one (1) business
-13-
day after deposit with an express overnight courier for United States deliveries, or two (2)
business days after such deposit for deliveries outside of the United States, with proof of
delivery from the courier requested; or (d) three (3) business days after deposit in the United
States mail by certified mail (return receipt requested) for United States deliveries. All notices
for delivery outside the United States will be sent by facsimile or by express courier. Notices by
facsimile shall be machine verified as received. All notices not delivered personally or by
facsimile will be sent with postage and/or other charges prepaid and properly addressed to the
party to be notified at the address or facsimile number as follows, or at such other address or
facsimile number as such other party may designate by one of the indicated means of notice herein
to the other parties hereto as follows:
(i) if to an Investor, at such Investor’s respective address as set forth on Exhibit A
hereto;
(ii) if to the Company, marked “Attention: President”, at 000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxx XX
00000;
(iii) if to a Founder, at such Founder’s address as set forth on Exhibit B hereto.
3.2 Entire Agreement. This Agreement and the documents referred to herein, together
with all the Exhibits hereto, constitute the entire agreement and understanding of the parties with
respect to the subject matter of this Agreement, and supersede the Prior Rights Agreement and any
and all prior understandings and agreements, whether oral or written, between or among the parties
hereto with respect to the specific subject matter hereof. This Agreement will amend and restate
the Prior Rights Agreement to read as set forth herein, when it has been duly executed by parties
having the right to so amend and restate the Prior Rights Agreement.
3.3 GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO THAT BODY OF LAWS PERTAINING TO
CONFLICT OF LAWS.
3.4 Severability. If any provision of this Agreement is determined by any court or
arbitrator of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such
provision will be enforced to the maximum extent possible given the intent of the parties hereto.
If such clause or provision cannot be so enforced, such provision shall be stricken from this
Agreement and the remainder of this Agreement shall be enforced as if such invalid, illegal or
unenforceable clause or provision had (to the extent not enforceable) never been contained in this
Agreement. Notwithstanding the forgoing, if the value of this Agreement based upon the substantial
benefit of the bargain for any party is materially impaired, which determination as made by the
presiding court or arbitrator of competent jurisdiction shall be binding, then both parties agree
to substitute such provision(s) through good faith negotiations.
3.5 Third Parties. Nothing in this Agreement, express or implied, is intended to
confer upon any person, other than the parties hereto and their successors and assigns, any rights
or remedies under or by reason of this Agreement.
-14-
3.6 Successors and Assigns. Subject to the provisions of Section 2.1, this Agreement,
and the rights and obligations of the parties hereunder, will be binding upon and inure to the
benefit of their respective successors, assigns, heirs, executors, administrators and legal
representatives.
3.7 Titles and Headings. The titles, captions and headings of this Agreement are
included for ease of reference only and will be disregarded in interpreting or construing this
Agreement. Unless otherwise specifically stated, all references herein to “sections” and
“exhibits” will mean “sections” and “exhibits” to this Agreement.
3.8 Counterparts. This Agreement may be executed in any number of counterparts, each
of which when so executed and delivered will be deemed an original, and all of which together shall
constitute one and the same agreement.
3.9 Costs And Attorneys’ Fees. In the event that any action, suit or other proceeding
is instituted concerning or arising out of this Agreement or any transaction contemplated
hereunder, the prevailing party shall recover all of such party’s costs and attorneys’ fees
incurred in each such action, suit or other proceeding, including any and all appeals or petitions
therefrom.
3.10 Aggregation of Stock. All shares held or acquired by affiliated entities or
persons shall be aggregated together for the purpose of determining the availability of any rights
under this Agreement.
3.11 Adjustments for Stock Splits, Etc. Wherever in this Agreement there is a
reference to a specific number of shares of Common Stock or Preferred Stock of the Company of any
class or series, then, upon the occurrence of any subdivision, combination or stock dividend of
such class or series of stock, the specific number of shares so referenced in this Agreement shall
automatically be proportionally adjusted to reflect the affect on the outstanding shares of such
class or series of stock by such subdivision, combination or stock dividend.
3.12 Further Assurances. The parties agree to execute such further documents and
instruments and to take such further actions as may be reasonably necessary to carry out the
purposes and intent of this Agreement.
3.13 Facsimile Signatures. This Agreement may be executed and delivered by facsimile
and upon such delivery the facsimile signature will be deemed to have the same effect as if the
original signature had been delivered to the other party.
[SIGNATURE PAGE FOLLOWS]
-15-
IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Registration
Rights Agreement as of the date and year first written above.
| THE COMPANY: | ||||
| OMNITURE, INC. | ||||
| Name: | /s/ Xxxxxx X. Xxxxx | |||
| Xxxxxx X. Xxxxx | ||||
| Chief Executive Officer | ||||
[Signature Page to Amended and Restated Registration Rights Agreement]
| INVESTORS: | ||||
| BAVP VII, L.P. | ||||
| By: | BA Venture Partners VII, LLC, its General Partner |
|||
| By: | /s/ Xxxx X’ Xxxxxxxx | |||
| Name: | Xxxx X’ Xxxxxxxx | |||
| Title: | Managing Member | |||
[Signature Page to Amended and Restated Registration Rights Agreement]
| INVESTORS: | ||||
| Hummer Winblad Venture Partners V, L.P., | ||||
| as nominee for | ||||
| Hummer Winblad Venture Partners V, L.P. and | ||||
| Hummer Winblad Venture Partners V-A, L.P. | ||||
| by: | Hummer Winblad Equity Partners V, L.L.C., General Partner |
|||
| By: | /s/ Xxxx Xxxxxxx | |||
| Xxxx Xxxxxxx | ||||
| its Chief Financial Officer | ||||
[Signature Page to Amended and Restated Registration Rights Agreement]
| FOUNDERS: | ||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Xxxxxx X. Xxxxx | ||||
| Cocolalla, LLC | ||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | CEO, Managing Member | |||
[Signature Page to Amended and Restated Registration Rights Agreement]
| FOUNDERS: | ||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Xxxx Xxxxxxx | ||||
| Erutinmo, LLC | ||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Manager | |||
[Signature Page to Amended and Restated Registration Rights Agreement]
| FOUNDERS: | ||||
| The Xxxx Xxxxxxx Variable Charitable Trust, | ||||
| an irrevocable trust | ||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Trustee | |||
[Signature Page to Amended and Restated Registration Rights Agreement]
| ADDITIONAL HOLDERS: | ||||
| BATTERY VENTURES VII, L.P. | ||||
| By: | Battery Partners VII, LLC | |||
| General Partner | ||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Member Manager | |||
| BATTERY INVESTMENT PARTNERS VII, LLC | ||||
| By: | Battery Partners VII, LLC | |||
| Manager | ||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Member Manager | |||
[Signature Page to Amended and Restated Registration Rights Agreement]
| ADDITIONAL HOLDERS: | ||||
| CROSSLINK VENTURES IV, L.P. | ||||
| By: | Crosslink Ventures IV Holdings, L.L.C., its General Partner | |||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Xxxxxxx X. Xxxxx, Managing Member | ||||
| OFFSHORE CROSSLINK OMEGA VENTURES IV (a Cayman Islands Unit Trust) | ||||
| By: | Crosslink Ventures IV Holdings, L.L.C., Investment Manager | |||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Xxxxxxx X. Xxxxx, Managing Member | ||||
| CROSSLINK OMEGA VENTURES IV GmbH & Co. KG | ||||
| By: | Crosslink Verwaltungs GmbH, General Partner | |||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Xxxxxxx X. Xxxxx, Managing Director | ||||
| OMEGA BAYVIEW IV, L.L.C. | ||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Xxxxxxx X. Xxxxx, Managing Member | ||||
| CROSSLINK CROSSOVER FUND IV, L.P. | ||||
| By: | Crossover Fund IV Management, L.L.C., | |||
| Its General Partner | ||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Xxxxxxx X. Xxxxx, Managing Member | ||||
[Signature Page to Amended and Restated Registration Rights Agreement]
| ADDITIONAL HOLDERS: | ||||
| 3i TECHNOLOGY PARTNERS II L.P. | ||||
| By: | 3i Technology Associates II LLC, its general partner |
|||
| By: | 3i Technology Corporation, its manager | |||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: Xxxxx Xxxxxx | ||||
| Title: Partner | ||||
| 3i GLOBAL TECHNOLOGY 2004-06 LP | ||||
| By: | 3i Group Investments GP Limited, its general partner |
|||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: Xxxxx Xxxxxx | ||||
| Attorney-in-fact | ||||
| 3i PAN EUROPEAN TECHNOLOGY 2004-06 LP | ||||
| By: | 3i Group Investments GP Limited, its general partner |
|||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: Xxxxx Xxxxxx | ||||
| Attorney-in-fact | ||||
| MAYFLOWER L.P. | ||||
| By: | Mayflower GP, its general partner | |||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: Xxxxx Xxxxxx | ||||
| Attorney-in-fact | ||||
[Signature Page to Amended and Restated Registration Rights Agreement]
EXHIBIT A
Investors
| Name and Address | ||
Xxxxx Xxxxxx Xxxxxxx 0000 Xxx Xxxxx Xxxxx, Xxxxxx, XX 00000 |
M&S Investments, LLC 0000 X. Xxxxxxx Xxxx., Xxxxx 000 Xxxx Xxxx Xxxx, XX 00000 Attn: Monte Max Deere, Jr. |
|
Xxxxx X. XxXxxxx 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000 |
Xxxx X. Xxxxxxxx 0000 000xx Xxxx XX, Xxxxxxx, XX 00000 |
|
Xxxxxx Xxxxxx x/x Xxxxx Xxxxxx Xxxxxxx 0000 Xxx Xxxxx Xxxxx, Xxxxxx, XX 00000 |
Xxxxxxx Xxxxxx 0-00-0-000 Xxxxx, Xxxxxxx Xxxx, Xxxxx Xxxxx 279-0041 |
|
Xxxxxxx X. Xxxxx X.X. Xxx 000, Xxxxx, XX 00000 |
Xxxxx Xxxxxxxx 0 Xxxxxxxx Xxx Xxxxxxxx, XX 00000 |
|
Xxxxx X. Xxxxxxx 000 Xxxxxxxx Xxxx, Xxxxxx, XX 00000 |
Xx X. Xxxxxxxxx 00 Xxxx 000 Xxxxx, Xxxx, XX 00000 |
|
Redlitz Family Trust ID #00-0000000 c/o Xxxxxx Xxxxxxx 0000 Xxxxx Xxxxx Xxxx., #000 Xxx Xxxxx, XX 00000 |
E. Xxxxxxx Xxxxx X.X. Xxx 0000, Xxxx Xxxx, XX 00000 |
|
Xxxxx X. Xxxxx Xxxxxxxx, Xxxxx 00, Xxx. 0000 00 Xxx Xxx, Xxxxxxxxx Xxxx, Xxxx Xxxx |
Xxxxx X. Xxxxx 0000 X. Xxxxxxx Xxxx Xx., Xxxxxxxx, XX 00000 |
|
Xxxxx Xxxxxxx 0000 X. 00xx Xxxxxx, Xxxxxx, XX 00000 |
Xxxxx X. Xxxxxxxx 0000 X. Xxxxx Xxxx Xx., Xxxxx, XX 00000 |
|
Sunridge Development Corp. 0000 Xxxx Xxxx Xxxxx, Xxxxx, XX 00000 Attn: Xxxxxxx Xxxxxxx |
D. Xxxx Xxxxxxxx 00000 X. Xxxxxxxx Xx., Xxxxx, XX 00000 |
|
Xxxxx X. Xxxxxxxxx 00000 Xxxxxxxxxx Xxxxx, Xxxxxx, XX 00000 |
Xxxx X. Xxxxxxxxx 00000 Xxxxxxxx Xx., Xxxxxxx, XX 00000 |
|
Xxxxx Xxxxxxxx 0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000 |
Xxxxxx Xxxxxxxx 0000 Xxxxxx Xxxx, Xxxx Xxxx Xxxx, XX 00000 |
|
Xxxxxxxx X. Xxxxx 00 Xx. 000 Xxxx, Xxxx, XX 00000 |
Xxx Xxxxxx 0000 X Xxxxxx Xx. Xx., Xxxxx Xxxx, XX 00000 |
|
Xxxxx X. X’Xxxxx 000 Xxxxxx Xx. Xxx Xxxxxxxxx, XX 00000 |
Alpine Securities, FBO J. Xxxxxxx Xxxxxxxxx 0000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000 |
|
| Name and Address | ||
Xxxxxxx Xxxxx Investments LLC 0000 Xxxxx Xxxxxxx Xxxx., Xxxxx, XX 00000 Attn: Xxx Xxxxxxx |
Vintage Estates LLC 0000 Xxxxx 000 Xxxx, Xxxxx, XX 00000 Attn: Xxxx Xxxxxxx |
|
Xxxxxxx X. Xxxxxx, Trustee for Xxxxxxx X. Xxxxxx Trust
dated 06/25/91 0000 X Xxxxxxxxxx Xxx, Xxxxx 000, Xxxxx, XX 00000 |
Xxxxx Xxxxxxx 000 Xxxxx 000 Xxxx, Xxxxxxxx Xxxxx, XX 00000 |
|
Xxxxxx Xxxxx, Trustee of the X.X. Management, Inc.
Emp. Ret. Plan 0000 Xxxxxxxxxx Xx., Xxxxx Xxxxx, XX 00000 |
VeriSign Capital Management, Inc. 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx 0 Xxxxxxxx Xxxx, XX 00000 Attn: General Counsel |
|
F&W Investments 1999 c/o Fenwick & West LLP Silicon Valley Center 000 Xxxxxxxxxx, Xxxxxxxx Xxxx, XX 00000 |
University Opportunity Fund, LLC 000 Xxxxx Xxxx Xxxxxx, Xxxxx 000 Xxxx Xxxx Xxxx, XX 00000 Attn: Jared Xxxxxxxxx |
|
Xxxxxxx Parenti 000 Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000 |
Hummer Winblad Venture Partners V, L.P. 0 Xxxxxxx Xxxxxx Xxx Xxxxxxxxx, XX 00000 Attn: Xxxx Xxxxxxx |
|
G&J Capital Management 00 X 000 Xxxxx, Xxxx, XX 00000 Attn: Xxxx Xxxxxx, Operating Manager |
The Board of Trustees of the Xxxxxx Xxxxxxxx Junior University
(Daper1) Stanford Management Company 0000 Xxxx Xxxx Xxxx Xxxxx Xxxx, XX 00000 Attn: Xxxxx Xxxxxxxxx |
|
Xxxxxxxx X. Xxxxx Family Revocable Trust dated
October 16, 1992 0000 Xxxxx 000 Xxxx, Xxxxx, XX 00000 |
F&W Investments LLC — Series 0000 Xxxxxxx Xxxxxx Xxxxxx 000 Xxxxxxxxxx Xx., Xxxxxxxx Xxxx, XX 00000 |
|
Xxxx Xxxxx Love, Trustee of KCL NACT Unitrust dtd 11/16/94 000 X. 000 Xxxxx, Xxxx, XX 00000 |
DoubleClick Inc. 000 Xxxxxx Xxxxxx Xxx Xxxx, XX 00000 Fax: 000-000-0000 Attention: General Counsel |
|
Xxxxx Xxxxxxx 0000 Xxxxxxxxx Xxxx, Xxxx Xxxx Xxxx, XX 00000 |
BAVP VII, L.P. 000 Xxxxx Xxxx, Xxxxx 000 Xxxxxx Xxxx, XX 00000 |
|
Xxxxxx and Xxxxxxx Xxxxxxx 000 Xxxxx 00 Xxxx, Xxxxxxxxxx, XX 00000 |
||
University Opportunity Affiliates Fund, LLC 000 Xxxxx Xxxx Xxxxxx, Xxxxx 000 Xxxx Xxxx Xxxx, XX 00000 Attn: Xxxxx Xxxxxxxxx |
Attractor Ventures LLC 0000 Xxxxxx Xxx., Xxxxx 000 Xxxxxxxxxx, XX 00000 Attention: Xxxxxx Xxxxxxx |
|
| Name and Address | ||
Attractor QP LP 0000 Xxxxxx Xxx., Xxxxx 000 Xxxxxxxxxx, XX 00000 Attention: Xxxxxx Xxxxxxx |
Attractor LP 0000 Xxxxxx Xxx., Xxxxx 000 Xxxxxxxxxx, XX 00000 Attention: Xxxxxx Xxxxxxx |
|
Attractor Institutional LP 0000 Xxxxxx Xxx., Xxxxx 000 Xxxxxxxxxx, XX 00000 Attention: Xxxxxx Xxxxxxx |
Arc Securities Ltd La Xxxxxx Xxxxx, Xx Xxxxxx, Xxxxxxxx Xxxxxxx Xxxxxxx, XX00Xx Admin. Office: 00 Xxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxx 0000 |
|
Xxxxxxx Xxxx 0000 Xxxxx Xxxxxx Xxx Xxxxxxxxx, XX 00000 |
Levinthal/Xxxxxxx Family Trust 00 Xxxxx Xxxx Xxxxxx Xxxx Xxxx Xxxx, XX 00000 |
|
Monarch Partners, LLC 00000 X. Xxxxxxx Xxxx. Xxxxx, XX 00000 |
Xxxxx & Xxxxxxx X’Xxxxx 000 Xxxxxx Xx. Xxx Xxxxxxxxx, XX 00000 |
|
WS Investment Company, LLC (2005C) 000 Xxxx Xxxx Xxxx Xxxx Xxxx, XX 00000-0000 |
Xxxxxxx Parenti 000 Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000 |
|
Dragon Development, LLC 0000 Xxxxxxxxx Xx. Xxx Xxxxxxx, XX 00000 |
The Xxxxx Family Trust Agreement dated the 15th day of May, 2005,
Xxxxxx X. Xxxxx and Xxxxxxxx Xxxxx, Trustees 00000 X. Xxxxxx Xxxxx Xxxxx Xxxxx, XX 00000 |
|
EXHIBIT B
Founders
Name and Address
Xxxxxx X. Xxxxx
0000 Xxxxx Xxxx Xxxx Xxxxx
Xxxxx, XX 00000
0000 Xxxxx Xxxx Xxxx Xxxxx
Xxxxx, XX 00000
Cocolalla, LLC
0000 Xxxxx Xxxx Xxxx Xxxxx
Xxxxx, XX 00000
attn: Xxxxxx X. Xxxxx
0000 Xxxxx Xxxx Xxxx Xxxxx
Xxxxx, XX 00000
attn: Xxxxxx X. Xxxxx
Erutinmo, LLC
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx, XX 00000
attn: Xxxx Xxxxxxx
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx, XX 00000
attn: Xxxx Xxxxxxx
Xxxxxx X. Xxxxxxxx
0000 Xxxx Xxxx Xxxxx
Xxxxx, XX 00000
0000 Xxxx Xxxx Xxxxx
Xxxxx, XX 00000
The Xxxx Xxxxxxx Variable Charitable Trust, an irrevocable trust
0000 Xxxxx Xxxxxx
Xxxxx, XX 00000
0000 Xxxxx Xxxxxx
Xxxxx, XX 00000
EXHIBIT C
Additional Holders
Name and Address
3i Technology Partners II LP
000 Xxxxxxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
000 Xxxxxxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
3i Global Technology 2004-06 LP
000 Xxxxxxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
000 Xxxxxxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
3i Pan European Technology 2004-06 LP
000 Xxxxxxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
000 Xxxxxxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
Mayflower LP
000 Xxxxxxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
000 Xxxxxxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
Crosslink Ventures IV, L.P.
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Crosslink Omega Ventures IV GmbH & Co. KG
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Offshore Crosslink Omega Ventures IV (Cayman Islands Unit Trust)
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Omega Bayview IV, LLC
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Crosslink Crossover Fund IV, L.P.
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Battery Ventures VII, L.P.
00 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
00 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Battery Investment Partners VII, LLC
00 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
00 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
