exv4w1






Exhibit 4.1




Confidential

Execution Copy




 





OMNITURE, INC.




COMMON STOCK PURCHASE AGREEMENT




January 27, 2009




 






 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	SECTION 1 AUTHORIZATION, SALE AND ISSUANCE
	 	 	1	 
	 
	 	 	 	 
	1.1 Authorization
	 	 	1	 
	1.2 Sale and Issuance of Shares
	 	 	1	 
	 
	 	 	 	 
	SECTION 2 CLOSING DATES AND DELIVERY
	 	 	2	 
	 
	 	 	 	 
	2.1 Closing
	 	 	2	 
	2.2 Delivery
	 	 	2	 
	 
	 	 	 	 
	SECTION 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY
	 	 	2	 
	 
	 	 	 	 
	3.1 Organization; Standing and Power; Charter Documents; Significant Subsidiaries
	 	 	2	 
	3.2 Capital Structure
	 	 	3	 
	3.3 Authority; Non-Contravention; Necessary Consents
	 	 	4	 
	3.4 SEC Filings; Financial Statements
	 	 	4	 
	3.5 Absence of Certain Changes or Events
	 	 	5	 
	3.6 Compliance
	 	 	5	 
	3.7 Litigation
	 	 	5	 
	3.8 Brokers’ and Finders’ Fees
	 	 	6	 
	 
	 	 	 	 
	SECTION 4 REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
	 	 	6	 
	 
	 	 	 	 
	4.1 No Registration
	 	 	6	 
	4.2 Investment Intent
	 	 	6	 
	4.3 Investment Experience
	 	 	6	 
	4.4 Speculative Nature of Investment
	 	 	6	 
	4.5 Access to Data
	 	 	6	 
	4.6 Accredited Investor
	 	 	7	 
	4.7 Residency
	 	 	7	 
	4.8 Rule 144
	 	 	7	 
	4.9 Authorization
	 	 	7	 
	4.10 Brokers or Finders
	 	 	7	 
	4.11 Tax Advisors
	 	 	7	 
	4.12 Representations by Non-United States persons
	 	 	7	 
	 
	 	 	 	 
	SECTION 5
	 	 	8	 
	 
	 	 	 	 
	5.1 Restrictions on Transfer
	 	 	8	 
	5.2 Standstill
	 	 	8	 
	5.3 Market Standoff
	 	 	9	 
	5.4 Restrictive Legends
	 	 	10	 
	5.5 Notice of Proposed Transfers
	 	 	11	 
	 
	 	 	 	 
	SECTION 6 CONDITIONS TO INVESTOR’S OBLIGATIONS TO CLOSE
	 	 	12	 
	 
	 	 	 	 
	6.1 Representations and Warranties
	 	 	12	 
	6.2 Covenants
	 	 	12	 
	6.3 Qualifications
	 	 	12	 
	6.4 Closing Deliverables
	 	 	12	 






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TABLE OF CONTENTS
(continued)








	 	 	 	 	 
	 	 	Page
	SECTION 7 CONDITIONS TO COMPANY’S OBLIGATION TO CLOSE
	 	 	13	 
	 
	 	 	 	 
	7.1 Representations and Warranties
	 	 	13	 
	7.2 Covenants
	 	 	13	 
	7.3 Compliance with Securities Laws
	 	 	13	 
	7.4 Qualifications
	 	 	13	 
	7.5 Closing Deliverables
	 	 	13	 
	 
	 	 	 	 
	SECTION 8 MISCELLANEOUS
	 	 	13	 
	 
	 	 	 	 
	8.1 Amendment
	 	 	13	 
	8.2 Notices
	 	 	13	 
	8.3 Governing Law
	 	 	14	 
	8.4 Expenses
	 	 	14	 
	8.5 Disclosure
	 	 	14	 
	8.6 Survival
	 	 	15	 
	8.7 Successors and Assigns
	 	 	15	 
	8.8 Entire Agreement
	 	 	15	 
	8.9 Delays or Omissions
	 	 	15	 
	8.10 Severability
	 	 	15	 
	8.11 Counterparts
	 	 	15	 
	8.12 Telecopy Execution and Delivery
	 	 	15	 
	8.13 Jurisdiction; Venue
	 	 	16	 
	8.14 Further Assurances
	 	 	16	 
	8.15 Attorney’s Fees
	 	 	16	 
	8.16 Jury Trial
	 	 	16	 







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EXHIBITS




A            ENTERPRISE AGREEMENT




B            COMPLIANCE CERTIFICATE




C            SECRETARY’S CERTIFICATE




D            OPINION OF COUNSEL TO THE COMPANY





-iii-









 








OMNITURE, INC.




COMMON STOCK PURCHASE AGREEMENT




     THIS COMMON STOCK PURCHASE AGREEMENT (this “Agreement”) is dated as of January 27, 2009
(“Effective Date”), and is among Omniture, Inc., a Delaware corporation (the “Company”), WPP
Luxembourg Gamma Three Sarl, a company formed under the laws of Luxembourg, with a principal place
of business located at 6 Rue Heine, L-1720 Luxembourg (the “Investor”) and, solely with respect to
Sections 5.2 and 8 hereof, WPP Group USA, Inc., a Delaware corporation (“WPP USA”).



     WHEREAS, the Company and the Investor are executing and delivering this Agreement in reliance
upon the exemption from securities registration afforded by Section 4(2) of the Securities Act of
1933, as amended (the “Securities Act”), and Rule 506 of Regulation D (“Regulation D”) as
promulgated by the United States Securities and Exchange Commission (the “SEC”) under the
Securities Act;



     WHEREAS, the Investor wishes to purchase, and the Company wishes to sell, upon the terms and
conditions stated in this Agreement, 2,852,578 shares (the “Shares”) of the Company’s common stock,
par value $0.001 per share (“Common Stock”).



     WHEREAS, contemporaneously with the execution and delivery of this Agreement, the parties
hereto are executing and delivering an Omniture Enterprise Channel Partner Agreement, substantially
in the form attached hereto as Exhibit A (the “Enterprise Agreement”).



     WHEREAS, the Company and the Investor wish to set forth the terms and conditions upon which
the Company will sell, and the Investor will purchase the Shares.



     NOW, THEREFORE, the parties hereto agree as follows:



SECTION 1




AUTHORIZATION, SALE AND ISSUANCE




     1.1 Authorization.  The Company will, prior to the Closing (as defined below), authorize the
sale and issuance of the Shares.



     1.2 Sale and Issuance of Shares.  Subject to the terms and conditions of this Agreement, the
Investor agrees to purchase, and the Company agrees to sell and issue to the Investor the Shares,
at a cash purchase price per share equal to $8.76, which the parties acknowledge represents 100% of
the arithmetic average of the closing prices for the Company’s Common Stock, as reported on the
Nasdaq Global Select Market for the five (5) consecutive trading days ending on the trading day
immediately prior to the date of Closing (the “Purchase Price”).



 









 





SECTION 2




CLOSING DATES AND DELIVERY




     2.1 Closing.  The purchase, sale and issuance of the Shares (the “Closing”) shall take place
at the offices of Wilson Sonsini Goodrich & Rosati, Professional Corporation One Market Street,
Spear Tower, Suite 3300 San Francisco, California 94105, on the Effective Date, or such other date
as the Company and the Investor shall agree.



     2.2 Delivery.  Within five (5) business days following the Closing, the Company will deliver
to the Investor a certificate registered in the Investor’s name representing the number of Shares
that the Investor is purchasing against payment of the Purchase Price, by wire transfer in
accordance with the Company’s instructions, provided that the Shares shall be, and shall for all
purposes be deemed to have been, issued as of the date of the Closing.



SECTION 3




REPRESENTATIONS AND WARRANTIES OF THE COMPANY




     Except as disclosed in writing in the (i) disclosure letter supplied by the Company to the
Investor dated as of the date hereof (the “Disclosure Letter”), the contents of the Disclosure
Letter will be deemed to be representations and warranties if made hereunder, (ii) the Company SEC
Reports (as defined below), or (iii) the Financial Statements (including the notes thereto)
(collectively, the “Disclosure Materials”), the Company represents and warrants to the Investor as
of the Effective Date as follows:



     3.1 Organization; Standing and Power; Charter Documents; Significant Subsidiaries. 



               (a) Organization; Standing and Power. The Company and each of its Significant
Subsidiaries (as defined in Rule 1.02 of Regulation S-X as promulgated by the SEC, each a
“Significant Subsidiary” and collectively, the “Significant Subsidiaries”) (i) is a corporation or
other organization duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization (except in the case of good standing for entities
organized under the laws of any jurisdiction that does not recognize such concept), (ii) has the
requisite power and authority to own, lease and operate its properties and to carry on its business
as now being conducted, and (iii) is duly qualified or licensed and in good standing to do business
in each jurisdiction in which the nature of its business or the ownership or leasing of its
properties makes such qualification or licensing necessary, other than in such jurisdictions where
the failure to so qualify or to be in good standing, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect. For the purposes of this Agreement,
“Material Adverse Effect” means a material adverse effect on the consolidated financial position,
stockholders’ equity, results of operation, business or properties of the Company and its
subsidiaries taken as a whole other than any change, event or circumstance to the extent resulting
from or arising in connection with (A) economic or political conditions in general, including the
recent economic downturn, and effects on the software or online commerce industry and/or (B) the
securities or credit markets in general.



               (b) Charter Documents. The Company has delivered or made available to the Investor a
true and correct copy of the Company’s Amended and Restated Certificate of Incorporation (including
any Certificate of Designations) and Amended and Restated Bylaws, each as amended to date
(collectively, the “Company Charter Documents”) and each such instrument is in full force and
effect. The Company is not in



2









 




violation of any of the provisions of the Company Charter Documents,
except as would not reasonably be expected to have a Material Adverse Effect.




     3.2 Capital Structure. 



          (a) Capital Stock.




               (i) The authorized capital stock of the Company consists of: (i) 250,000,000 shares of Common
Stock, par value $0.001 per share and (ii) 10,000,000 shares of preferred stock, par value $0.001
per share (the “Preferred Stock”). At the close of business on January 22, 2009: (i) 73,007,740
shares of Common Stock were issued and outstanding, (ii) no shares of Common Stock were issued and
held by the Company in its treasury, and (iii) no shares of Preferred Stock were issued and
outstanding. Since the close of business on January 22, 2009 through the execution of this
Agreement, the Company has not issued any shares of Common Stock, other than pursuant to the
exercise of Company Options (as defined below) outstanding as of January 22, 2009 and granted
pursuant to the Company Stock Plans (as defined below).



               (ii) All of the outstanding shares of capital stock of the Company are and all of the Shares,
when issued and delivered and paid for in compliance with the provisions of this Agreement will be
validly issued, fully paid and nonassessable and will be free of any lien, charge or encumbrance
other than (x) limitations on transfer under this Agreement and under applicable laws, and (y) any
lien, charge or encumbrance resulting from actions or omissions of the Investor.



          (b) Stock Options. As of the close of business on January 22, 2009: (i) 13,147,937
shares of Common Stock were subject to issuance pursuant to outstanding options to purchase or
rights to purchase or acquire Common Stock or stock appreciation rights (the “Company Options”)
under the stock option, stock award, stock appreciation or phantom stock plans of the Company (the
“Company Stock Plans”), (ii) 4,804,233 shares of Common Stock were available for future issuance
under the Company Stock Plans, (iii) 1,563,622 shares of Common Stock were available for future
issuance under the employee stock purchase plan of the Company and (iv) 378,828 shares of Common
Stock were subject to issuance pursuant to outstanding options, rights or warrants to purchase
Common Stock issued other than pursuant to the Company Stock Plans and the Company employee stock
purchase plan. Since the close of business on January 22, 2009 through the execution of this
Agreement, no Company Options have been granted and no additional shares of Common Stock have been
reserved for future issuance pursuant to Company Options or other equity-based awards available for
grant under the Company Stock Plans. There are no outstanding or authorized phantom stock or other
similar rights (whether payable in stock, cash or other property) with respect to the Company.




          (c) Other Securities.




               (i) Except as otherwise set forth in Section 3.2(a) and (b) above, as the date hereof, there
are no securities, options, warrants, calls, rights, contracts, commitments, agreements,
instruments, arrangements, understandings, obligations or undertakings of any kind to which the
Company is a party or by which it is bound obligating the Company to issue, deliver or sell, or
cause to be issued, delivered or sold, additional shares of capital stock, or other voting
securities of the Company, or obligating the Company to issue, grant, extend or enter into any such
security, option, warrant, call, right, commitment, agreement, instrument, arrangement,
understanding, obligation or undertaking.



               (ii) All outstanding shares of Common Stock, and all outstanding Company Options have been
issued and granted in compliance in all material respects with all applicable securities laws.



3









 





     3.3 Authority; Non-Contravention; Necessary Consents. 



          (a) Authority. The Company has the requisite corporate power and authority to enter
into and to consummate the transactions contemplated by this Agreement and otherwise to carry out
its obligations hereunder. The execution and delivery of this Agreement by the Company and the
consummation by it of the transactions contemplated hereby have been duly authorized by all
necessary action on the part of the Company and no further action is required by the Company to
authorize this Agreement. This Agreement has been duly executed by the Company and, when delivered
in accordance with the terms hereof, will constitute the valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to or affecting
creditors’ rights and general equity principles.




          (b) Non–Contravention. The execution and delivery of this Agreement by the Company
does not, and performance by the Company of its obligations hereunder will not: (i) conflict with
or violate the Company Charter Documents, (ii) subject to compliance with the requirements set
forth in Section 3.3(c), conflict with or violate any material law, administrative regulation or
ruling, or court decree applicable to the Company (“Legal Requirement”), or (iii) result in any
breach of or constitute a default (or an event that with notice or lapse of time or both would
become a default) under, or materially impair the Company’s rights or materially alter the rights
or obligations of any third party under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of any pledges, claims, liens, charges,
encumbrances, and security interests (collectively, “Liens”) on any of the properties or assets of
the Company pursuant to, any Material Contract except for any such conflicts, violations, breaches,
defaults or other occurrences which would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. For the purposes of this Agreement, the term “Material
Contract” means all agreements filed or incorporated by reference by the Company in the Company SEC
Reports pursuant to Section 10 of Item 601(b) of Regulation S-K promulgated under the Securities
Act to which the Company or any Significant Subsidiary is a party or to which any of the property
or assets of the Company or any Significant Subsidiary are subject.




          (c) Necessary Consents. No consent, approval, order or authorization of, or
registration, declaration or filing with any court, governmental agency or body (“Governmental
Entity”) is required to be obtained or made by the Company in connection with the execution and
delivery of this Agreement and the performance of the Company of its obligations hereunder, except:
(i) such consents, approvals, orders, authorizations, registrations, declarations and filings as
may be required under applicable federal, foreign and state securities (or related) laws and
satisfaction of such other requirements of the comparable applicable laws of other jurisdictions,
(ii) any filing of Form D under Regulation D under the Securities Act, (iii) such consents,
approvals, orders, authorizations, registrations, declarations and filings as may be required under
applicable state securities or “blue sky” laws and the securities laws of any foreign country and
(iv) such other consents, approvals, orders, authorizations, registrations, declarations or
filings, the failure of which to obtain would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.




     3.4 SEC Filings; Financial Statements. 



          (a) SEC Filings. The Company has filed all required registration statements,
prospectuses, reports, schedules, forms, statements and other documents (including exhibits and all
other information incorporated by reference) required to be filed by it with the SEC since
January 1, 2008. The Company has made available to the Investor all such registration statements,
prospectuses, reports, schedules, forms, statements and other documents in the form filed with the
SEC. All such required registration statements, prospectuses, reports, schedules, forms,
statements and other documents are referred to herein as the “Company SEC Reports.” As of their
respective dates, or, if amended or supplemented prior to the date



4









 






of this Agreement, as of the
date of such amendment or supplement, each Company SEC Report (i) complied in all material respects
with the requirements of the Securities Act, or the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), as the case may be, and the rules and regulations of the SEC thereunder
applicable to such Company SEC Report and (ii) did not at the time it was filed (or became
effective in the case of a registration statement), or if amended, supplemented or superseded by a
filing prior to the date of this Agreement then on the date of such superseding filing, amendment
or supplement, contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.




          (b) Financial Statements. The financial statements of the Company included in the
Company SEC Reports (the “Financial Statements”) comply in all material respects with applicable
accounting requirements and the rules and regulations of the SEC with respect thereto as in effect
at the time of filing (or, if an amendment with respect to any such document was filed, when such
amendment was filed). The Financial Statements have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”),
except as may be otherwise specified in the Financial Statements or the notes thereto, and fairly
present in all material respects the financial position of the Company and its consolidated
subsidiaries as of and for the dates thereof and the results of operations and cash flows for the
periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end
audit adjustments. Since September 30, 2008 (the “Balance Sheet Date”) (a) there has been no
event, occurrence or development that has or that could reasonably be expected to result in a
Material Adverse Effect, (b) neither the Company nor any Significant Subsidiary has incurred any
liabilities (contingent or otherwise) other than (x) liabilities incurred in the ordinary course of
business and (y) liabilities not required to be reflected in the Financial Statements pursuant to
GAAP or required to be disclosed in filings made with the SEC, (c) the Company has not altered its
method of accounting or the identity of its independent registered public accounting firm and
(d) the Company has not declared or made any payment or distribution of cash or other property to
its stockholders or officers or directors (other than in compliance with existing Company Stock
Plans) with respect to its capital stock, or purchased, redeemed (or made any agreements to
purchase or redeem) any shares of its capital stock.




     3.5 Absence of Certain Changes or Events.  Since the Balance Sheet Date and other than
repurchases of Common Stock pursuant to the terms of equity awards under Company Options or Company
Stock Plans, there has not been (i) any declaration, setting aside or payment of any dividend on,
or other distribution (whether in cash, stock or property) in respect of, any of the Company’s
capital stock, or any purchase, redemption or other acquisition by the Company of any of the
Company’s capital stock or any other securities of the Company or any options, warrants, calls or
rights to acquire any such shares or other securities except for repurchases from employees
following their termination pursuant to the terms of their pre-existing stock option or purchase
agreements, or (ii) any split, combination or reclassification of any of the Company’s capital
stock.



     3.6 Compliance.  Neither the Company nor any of its Significant Subsidiaries is (i) in default
under or in violation of nor has the Company or any of its Significant Subsidiaries received
written notice of a claim that it is in default under any Material Contract, (ii) in violation of
any order of any Governmental Entity, or (iii) in violation of any statute, rule or regulation of
any Governmental Entity, in each case of clause (i), (ii) or (iii) above, except as would not
reasonably be expected to have or result in a Material Adverse Effect.



     3.7 Litigation.  There are no claims, suits, actions, judgments or proceedings pending or, to
the Company’s knowledge, threatened in writing against the Company or any of its Significant
Subsidiaries, by or before any court, governmental department, commission, agency, instrumentality
or authority, or any



5









 




arbitrator that seeks to restrain or enjoin the consummation of the
transactions contemplated by this Agreement or which would reasonably be expected, either
singularly or in the aggregate with all such claims, actions, judgments or proceedings, to have a
Material Adverse Effect. For the purposes of this Agreement, the term “knowledge” means the actual
knowledge of the executive officers of the Company.




     3.8 Brokers’ and Finders’ Fees.  The Company has not incurred, nor will it incur, directly or
indirectly, any liability for brokerage or finders’ fees or agents’ commissions or any similar
charges in connection with this Agreement or any transaction contemplated hereby, in any case, for
which the Company or any of its Subsidiaries will be liable or have any obligations.



SECTION 4




REPRESENTATIONS AND WARRANTIES OF THE INVESTOR




     The Investor hereby represents and warrants to the Company as follows:



     4.1 No Registration.  The Investor understands that the Shares have not been, and will not be,
registered under the Securities Act by reason of a specific exemption from the registration
provisions of the Securities Act, the availability of which depends upon, among other things, the
bona fide nature of the investment intent and the accuracy of the Investor’s representations as
expressed herein or otherwise made pursuant hereto.



     4.2 Investment Intent.  The Investor is acquiring the Shares for investment for its own
account, not as a nominee or agent, and not with the view to, or for resale in connection with, any
distribution thereof, and the Investor has no present intention of selling, granting any
participation in, or otherwise distributing the same. The Investor further represents that it does
not have any contract, undertaking, agreement or arrangement with any person or entity to sell,
transfer or grant participation to such person or entity or to any third person or entity with
respect to any of the Shares.



     4.3 Investment Experience .  The Investor has substantial experience in evaluating and investing in private placement
transactions of securities and acknowledges that the Investor can protect its own interests. The
Investor has such knowledge and experience in financial and business matters so that the Investor
is capable of evaluating the merits and risks of its investment in the Company.



     4.4 Speculative Nature of Investment.  The Investor understands and acknowledges that an
investment in the Company is highly speculative and involves substantial risks. The Investor can
bear the economic risk of the Investor’s investment and is able, without impairing the Investor’s
financial condition, to hold the Shares for an indefinite period of time and to suffer a complete
loss of the Investor’s investment.



     4.5 Access to Data.  The Investor has had an opportunity to ask questions of, and receive
answers from, the officers of the Company concerning this Agreement, the exhibits and schedules
attached hereto and the transactions contemplated hereby, as well as the Company’s business,
management and financial affairs, which questions were answered to its satisfaction. The Investor
believes that it has received all the information the Investor considers necessary or appropriate
for deciding whether to purchase the Shares. The Investor acknowledges that it is relying solely
on its own counsel and not on any statements or representations of the Company or its agents for
legal advice with respect to this investment or the transactions contemplated by this Agreement.



6









 





     4.6 Accredited Investor.  The Investor is an “accredited investor” within the meaning of
Regulation D, Rule 501(a), promulgated by the Securities and Exchange Commission under the
Securities Act.



     4.7 Residency.  The Investor’s principal place of business is correctly set forth on the
initial page of this Agreement.



     4.8 Rule 144.  The Investor acknowledges that the Shares must be held indefinitely unless
subsequently registered under the Securities Act or an exemption from such registration is
available. The Investor is aware of the provisions of Rule 144 promulgated under the Securities Act
which permit resale of shares purchased in a private placement subject to the satisfaction of
certain conditions. The Investor acknowledges that, in the event the applicable requirements of
Rule 144 are not met, registration under the Securities Act or an exemption from registration will
be required for any disposition of the Shares or the underlying Common Stock.



     4.9 Authorization. 



          (a) The Investor has all requisite power and authority to execute and deliver this Agreement,
to purchase the Shares hereunder and to carry out and perform its obligations under the terms of
this Agreement. All action on the part of the Investor necessary for the authorization, execution,
delivery and performance of this Agreement has been taken or will be taken prior to the Closing.




          (b) This Agreement, when executed and delivered by the Investor, will constitute valid and
legally binding obligations of the Investor, enforceable in accordance with their terms except:
(i) as limited by applicable bankruptcy, fraudulent conveyance, insolvency, reorganization,
moratorium and any other laws of general application affecting or relating to enforcement of
creditors’ rights generally, and (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies or by general principles of equity.




          (c) No consent, approval, authorization, order, filing, registration or qualification of or
with any court, governmental authority or third person is required to be obtained by the Investor
in connection with the execution and delivery of this Agreement by the Investor or the performance
of the Investor’s obligations hereunder or thereunder.




     4.10 Brokers or Finders.  The Investor has not engaged any brokers, finders or agents, and the
Company has not and will not incur, directly or indirectly, as a result of any action taken by the
Investor, any liability for brokerage or finders’ fees or agents’ commissions or any similar
charges in connection with this Agreement.



     4.11 Tax Advisors.  The Investor has reviewed with its own tax advisors the U.S. federal,
state, local and foreign tax consequences of this investment and the transactions contemplated by
this Agreement. With respect to such matters, the Investor relies solely on such advisors and not
on any statements or representations of the Company or any of its agents, written or oral. The
Investor understands that it (and not the Company) shall be responsible for its own tax liability
that may arise as a result of this investment or the transactions contemplated by this Agreement.



     4.12 Representations by Non-United States persons.  The Investor hereby represents that the
Investor is satisfied as to the full observance of the laws of the Investor’s jurisdiction in
connection with any invitation to subscribe for the Shares and or any use of this Agreement and the
Warrant (as defined in the Enterprise Agreement), including (i) the legal requirements within the
Investor’s jurisdiction for the purchase



7









 




of the Shares, the issuance of the Warrant and the
purchase of the Warrant Shares (as defined in the Enterprise Agreement, the “Warrant Shares”),
(ii) any foreign exchange restrictions applicable to such purchase, (iii) any governmental or other
consents that may need to be obtained and (iv) the income tax and other tax consequences, if any,
that may be relevant to the purchase, holding, redemption, sale or transfer of such securities. The
Investor’s subscription and payment for, and the Investor’s continued beneficial ownership of, the
Shares and the Warrant Shares will not violate any applicable securities or other laws of the
Investor’s jurisdiction.




SECTION 5




ADDITIONAL COVENANTS




     5.1 Restrictions on Transfer.  The Shares and the Warrant Shares shall not be Transferred,
except upon the conditions specified in this Agreement. The Investor will cause any transferee who
receives the Shares or Warrant Shares in a
Transfer permitted under this Agreement other than a sale pursuant to (i) an effective
registration statement under the Securities Act or (ii) Rule 144 under the Securities Act to assume
in writing the obligations and restrictions of the Investor under this Agreement, and the other
restrictions set forth in this Section 5. For the purpose of this Agreement, the terms “Transfer,”
“Transferring,” “Transferred,” or words of similar import, mean and include any sale, assignment,
encumbrance, hypothecation, pledge, conveyance in trust, gift, transfer by bequest, devise or
descent, or other transfer or disposition of any kind, including but not limited to transfers to
receivers, levying creditors, trustees or receivers in bankruptcy proceedings or general assignees
for the benefit of creditors, whether voluntary or by operation of law, directly or indirectly.



     5.2 Standstill.  For a period commencing on the Effective Date and ending on July 27, 2010,
neither the Investor nor WPP USA, whether directly or indirectly through one or more
intermediaries, including any of their respective Affiliates or Representatives of any of the
foregoing (but, as to Representatives, only if acting in a representative capacity) shall, without
the prior written consent of the Company or its Board of Directors:



          (a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or
otherwise, any voting securities or direct or indirect rights to acquire any voting securities of
the Company or any subsidiary thereof, or of any successor to or person in control of the Company,
or any assets of the Company or any subsidiary or division thereof or of any such successor or
controlling person; notwithstanding the foregoing, the Investor may acquire voting securities of
the Company amounting to not more than five percent (5%) of the Company’s outstanding voting
securities (in addition to the Shares purchased under this Agreement and any Warrant Shares
acquired pursuant to the Enterprise Agreement);




          (b) make, or in any way participate, directly or indirectly, in any “solicitation” of
“proxies” to vote (as such terms are used in the rules of the SEC), or seek to advise or influence
any person or entity with respect to the voting of any voting securities of the Company;




          (c) make any public announcement with respect to, or submit a proposal for, or offer of (with
or without conditions) any extraordinary transaction involving the Company or any of its securities
or assets;




          (d) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the
Exchange Act, in connection with any of the foregoing;



8









 







          (e) otherwise act or seek to control or influence the management, Board of Directors or
policies of the Company;




          (f) take any action that could reasonably be expected to require the Company to make a public
announcement regarding the possibility of any of the events described in clauses (a) through (e)
above; or




          (g) request the Company or any of its Affiliates or Representatives, directly or indirectly,
to amend or waive any provision of this paragraph.




     Notwithstanding the foregoing, (1) nothing in this Section 5.2 shall prohibit the Investor or
its Affiliates or Representatives from making, or require the Investor or any of its
Representatives to obtain the consent of the Company or its Board of Directors to make, one or more
proposals to the Company or its Board of Directors or any committee thereof to acquire, offer to
acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, 100% of the voting
securities of the Company, provided that such
proposal would not be required to be made public by Investor, WPP USA, or any of their
respective Affiliates or the Company by law, rule, regulation or the requirements of any exchange
on which the Company’s stock is listed, and (2) the restrictions contained in this Section 5.2
shall become inoperative upon the earlier of (i) the Company entering into a definitive agreement
with respect to a Combination (as defined below); or (ii) the expiration of ten (10) business days
following the commencement of an unsolicited tender or exchange offer involving the Company or its
securities made by any third party other than Investor, WPP USA, or any of their respective
Affiliates. For purposes of this Section 5.2, when two or more persons act as a partnership,
limited partnership, syndicate, or other group for the purpose of acquiring, holding, or disposing
of securities of a Company, such syndicate or group shall be deemed a “person”.



     For the purposes of this Agreement, (a) the term “Combination” means a transaction or series
of related transactions in which (i) a “person” acquires, directly or indirectly, securities
representing 50% or more of the voting power of the outstanding securities of the Company or
properties or assets constituting 50% or more of the consolidated assets of the Company and its
subsidiaries or (ii) the Company issues securities representing 50% or more of its total voting
power, including, in the case of clauses (i) and (ii), by way of a merger or other business
combination with the Company or any of its subsidiaries; (b) the term “Representative” means as to
any person, its directors, officers, employees, agents and advisors (including, without limitation,
financial advisors, attorneys and accountants); and (ii) “person” shall be broadly interpreted to
include, without limitation, any corporation, company, partnership, other entity or individual, and
(c) the term “Affiliate” means as to any person, any entity in which such person owns or controls,
directly or indirectly, a majority of the outstanding shares, securities or equity interests of
such entity or has the power to elect or appoint, by agreement or otherwise, a majority of the
board of directors (or comparable governing body) of such entity and/or any parent company or
entity that owns or controls a majority of the outstanding shares, securities, or equity interests
of such person or has the power to elect or appoint, by agreement or otherwise, a majority of the
board of directors (or comparable governing body) of such person, or any person that is under
common control with such person, including international Affiliates of such person.



     5.3 Market Standoff. 



          (a) Until July 27, 2010 (the “Market Standoff Period”) the Investor will not, directly or
indirectly, offer, sell, pledge, contract to sell (including any short sale), grant any option to
purchase or otherwise dispose of any shares of Common Stock (including, without limitation, shares
of Common Stock of the Company which may be deemed to be beneficially owned by the undersigned on
the date hereof in accordance with the rules and regulations of the SEC, shares of Common Stock
which may be issued upon exercise of a stock option or warrant and any other security convertible
into or exchangeable for Common



9









 






Stock) or enter into any Hedging Transaction (as defined below)
relating to the Common Stock (each of the foregoing referred to as a “Disposition”) during the
Market Standoff Period. The foregoing restriction is expressly intended to preclude the
undersigned from engaging in any Hedging Transaction or other transaction which is designed to or
reasonably expected to lead to or result in a Disposition during the Market Standoff Period even if
the securities would be disposed of by someone other than the undersigned. “Hedging Transaction”
means any short sale (whether or not against the box) or any purchase, sale or grant of any right
(including, without limitation, any put or call option) with respect to any security (other than a
broad-based market basket or index) that includes, relates to or derives any significant part of
its value from the Common Stock.




          (b) If requested by the Company and an underwriter of Common Stock (or other securities) of
the Company, Investor shall not sell or otherwise transfer, make any short sale of, grant any
option for the purchase of, or enter into any hedging or similar transaction with the same economic
effect as a
sale, of any Common Stock (or other securities) of the Company held by Investor (other than
those included in the registration) during the 90-day period following the effective date of a
registration statement of the Company filed under the Securities Act (or such other period as may
be requested by the Company or an underwriter to accommodate regulatory restrictions on (i) the
publication or other distribution of research reports and (ii) analyst recommendations and
opinions, including, but not limited to, the restrictions contained in Rule 2711 of the Financial
Industry Regulatory Authority or Rule 472(f)(4) of the New York Stock Exchange, or any successor
provisions or amendments thereto), provided that all officers and directors of the Company are
bound by and have entered into an agreement in substantially the same form covering all outstanding
voting securities of the Company of which they are deemed to have beneficial ownership for purposes
of Section 13(d) of the Exchange Act and the rules promulgated by the SEC thereunder. The
obligations described in this Section 5.3(b) shall not apply to a registration relating solely to
employee benefit plans on Form S-l or Form S-8 or similar forms that may be promulgated in the
future, or a registration relating solely to a transaction on Form S-4 or similar forms that may be
promulgated in the future. The Company may impose stop-transfer instructions and may stamp each
such certificate with the second legend set forth in Section 5.4 with respect to the shares of
Common Stock (or other securities) subject to the foregoing restriction until the end of such
90-day (or other) period. Investor agrees to execute a market standoff agreement with said
underwriters in customary form consistent with the provisions of this Section 5.3(b); provided that
all officers and directors of the Company are bound by and have entered into an agreement in
substantially the same form covering all outstanding voting securities of the Company of which they
are deemed to have beneficial ownership for purposes of Section 13(d) of the Exchange Act and the
rules promulgated by the SEC thereunder. Any discretionary waiver or termination of the
restrictions of any or all of such agreements by the Company or the underwriters shall apply to the
Investor.




     5.4 Restrictive Legends.  Each certificate representing the Shares shall be stamped or
otherwise imprinted with the following or similar legends:




THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF
ANY STATE, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SUCH ACT AND/OR APPLICABLE
STATE SECURITIES LAWS, OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF
COUNSEL OR OTHER EVIDENCE, REASONABLY SATISFACTORY TO THE COMPANY AND ITS
COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.



10









 






THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS
SET FORTH IN A COMMON STOCK PURCHASE AGREEMENT TO WHICH THE ORIGINAL
HOLDER OF THESE SHARES WAS A PARTY, A COPY OF WHICH MAY BE OBTAINED AT
THE PRINCIPAL OFFICE OF THE COMPANY. SUCH RESTRICTIONS ARE BINDING ON
TRANSFEREES OF THESE SHARES.



     The Investor consents to the making of a notation by the Company on its records and giving
instructions to any transfer agent of its capital stock in order to implement the restrictions on
transfer established in this Agreement.



     5.5 Notice of Proposed Transfers. No Transfer (other than (i) a sale made pursuant to a registration statement filed under
the Securities Act and declared effective by the SEC for which no stop order has been issued and is
then existing or (ii) a sale made in accordance with the applicable provisions of Rule 144) of
Shares or Warrant Shares shall be made by the Investor to any person unless such person shall first
agree in writing to be bound by the restrictions of this Agreement, including without limitation
this Section 5. Prior to any proposed Transfer of any Shares or any Warrant Shares, unless there
is in effect a registration statement under the Securities Act covering the proposed Transfer or
such Transfer is made pursuant to Rule 144, the holder thereof shall give written notice to the
Company of such holder’s intention to effect such Transfer. Each such notice shall describe the
manner and circumstances of the proposed Transfer, sale, assignment or pledge in reasonable detail,
and, if requested by the Company, the Investor shall also provide, at the Investor’s expense, a
written opinion of legal counsel (who shall be, and whose legal opinion shall be, reasonably
satisfactory to the Company) addressed to the Company, to the effect that the proposed Transfer of
the Shares or Warrant Shares may be effected without registration under the Securities Act and
under applicable state securities laws and regulations. Subject to the terms of this Section 5,
upon delivery to the Company of such notice and, if required, such opinion, the Investor shall be
entitled to Transfer such Shares or Warrant Shares, as the case may be, in accordance with the
terms of such notice. Each certificate evidencing the Shares or the Warrant Shares transferred as
above provided shall bear, except if such transfer is made pursuant to Rule 144 or pursuant to an
effective registration statement, the appropriate restrictive legend set forth in Section 5.4 above
or in the Warrant (as defined in the Enterprise Agreement), as the case may be, except that such
certificate shall not bear such restrictive legend if, in the opinion of counsel for Investor and
counsel for the Company, such legend is not required in order to establish or ensure compliance
with the provisions of the Securities Act and this Agreement. Without limiting the foregoing, the
Company shall not permit any Transfer of the Shares or the Warrant Shares on its books and records
and any attempted Transfer of any Shares or Warrant Shares shall be void unless or until the person
or entity to whom such Shares or Warrant Shares are to be Transferred shall have executed and
delivered to the Company a written agreement satisfactory to the Company to be bound by all the
terms of this Agreement.



11









 





SECTION 6




CONDITIONS TO INVESTOR’S OBLIGATIONS TO CLOSE




     The Investor’s obligation to purchase the Shares at the Closing is subject to the fulfillment
on or before the Closing of each of the following conditions, unless waived by the Investor:



     6.1 Representations and Warranties.  Except as disclosed in writing in the Disclosure
Materials, the representations and warranties made by the Company in Section 3 shall be true and
correct as of the date of the Closing Date.



     6.2 Covenants.  The Company shall have performed or complied with all covenants, agreements
and conditions contained in this Agreement to be performed or complied with by the Company on or
prior to the Closing in all material respects.



     6.3 Qualifications.  All authorizations, approvals or permits, if any, of any governmental
authority or regulatory body of the United States or of any state that are required in connection
with the lawful issuance and sale of the Shares
pursuant to this Agreement, except for such as may be properly filed subsequent to Closing,
shall be obtained and effective as of the Closing.



     6.4 Closing Deliverables.  The Company shall have delivered to counsel to the Investor the
following:



          (a) a duly executed copy of this Agreement.




          (b) a duly executed copy of the Enterprise Agreement.




          (c) a certificate executed by the Chief Executive Officer, President or Chief Financial
Officer of the Company on behalf of the Company, in substantially the form attached hereto as
Exhibit B, certifying the satisfaction of the conditions to closing listed in Sections 6.1
and 6.2.




          (d) a certificate of the Secretary of State of the State of Delaware, dated as of a date
within five days of the date of the Closing, with respect to the good standing of the Company.




          (e) a certificate of the Company executed by the Company’s Secretary, in substantially the
form attached hereto as Exhibit C, attaching and certifying to the truth and correctness of
(1) the Amended and Restated Certificate of Incorporation of the Company, (2) the Amended and
Restated Bylaws of the Company and (3) the board resolutions adopted in connection with the
transactions contemplated by this Agreement.




          (f) an opinion from Wilson Sonsini Goodrich & Rosati, Professional Corporation, counsel to the
Company, dated as of the Closing, in substantially the form attached hereto as Exhibit D.




12









 








SECTION 7




CONDITIONS TO COMPANY’S OBLIGATION TO CLOSE




     The Company’s obligation to sell and issue the Shares at the Closing is subject to the
fulfillment on or before such Closing of the following conditions, unless waived by the Company:



     7.1 Representations and Warranties.  The representations and warranties made by the Investor
in such Closing in Section 4 shall be true and correct when made and shall be true and correct as
of the date of the Closing.



     7.2 Covenants.  The Investor shall have performed or complied with all covenants, agreements
and conditions contained in the Agreement to be performed or complied with by the Investor on or
prior to the date of such Closing in all material respects.



     7.3 Compliance with Securities Laws.  The Company shall be satisfied that the offer and sale
of the Shares shall be qualified or exempt from registration or qualification under all applicable
federal and state securities laws (including receipt by the Company of all necessary blue sky law
permits and qualifications required by any state, if any).



     7.4 Qualifications.  All authorizations, approvals or permits, if any, of any governmental
authority or regulatory body of the United States or of any state that are required in connection
with the lawful issuance and sale of the Shares pursuant to this Agreement, except for such as may
be properly filed subsequent to Closing, shall be obtained and effective as of the Closing.



     7.5 Closing Deliverables.  The Investor shall have delivered to counsel to the Company the
following:



          (a) a duly executed copy of this Agreement.




          (b) a duly executed copy of the Enterprise Agreement.




          (c) Twenty-five million dollars ($25,000,000.00) by wire transfer of immediately available
funds to the account specified by the Company.




SECTION 8




MISCELLANEOUS




     8.1 Amendment.  Except as expressly provided herein, neither this Agreement nor any term
hereof may be amended, waived, discharged or terminated other than by a written instrument
referencing this Agreement and signed by the Company and the Investor.



     8.2 Notices.  All notices and other communications required or permitted hereunder shall be in
writing and shall be mailed by registered or certified mail, postage prepaid, sent by facsimile or
otherwise delivered by hand, messenger or courier service addressed:



13









 





          (a) if to the Investor, to the attention of Lance Maerov, Senior Vice President, Corporate
Development, WPP Group USA, Inc., at 125 Park Avenue, 4th Floor, New York, New York
10017-5529, Facsimile Number: (212) 632-2453, or at such other current address or facsimile number
as the Investor shall have furnished to the Company, with a copy (which shall not constitute
notice) to Curt C. Myers, Davis & Gilbert LLP, 1740 Broadway, New York, New York 10019, Facsimile
Number (212) 468-4888; or




          (b) if to the Company, to the attention of the Chief Executive Officer of the Company at 550
East Timpanogos Circle, Orem, Utah 84097, Facsimile Number: (801) 722.7005 or at such other current
address or facsimile number as the Company shall have furnished to the Investor, with copies (which
shall not constitute notice) to (1) the Company’s Chief Legal Officer at 550 East Timpanogos
Circle, Orem, Utah 84097, Facsimile Number: (801) 722.7005 or at such other current address or
facsimile number as the Company shall have furnished to the Investor; and (2) Robert G. O’Connor,
Wilson Sonsini Goodrich & Rosati, P.C., One Market Street, Spear Tower, Suite 3300, San Francisco,
California 94105, Facsimile Number: (415) 947.2099




     Each such notice or other communication shall for all purposes of this Agreement be treated as
effective or having been given (i) if delivered by hand, messenger or courier service, when
delivered (or if sent via a nationally-recognized overnight courier service, freight prepaid,
specifying next-business-day delivery, one business day after deposit with the courier), or (ii) if
sent via mail, at the earlier of its receipt or five days after the same has been deposited in a
regularly-maintained receptacle for the deposit of the United States mail, addressed and mailed as
aforesaid, or (iii) if sent via facsimile, upon confirmation of facsimile transfer, if sent during
normal business hours of the recipient, or if not sent during normal business hours of the
recipient, then on the recipient’s next business day, in either case with a copy of such notice or
other communication sent by hand, messenger, courier service or registered or certified mail within
three (3) business days.



     8.3 Governing Law.  This Agreement shall be governed in all respects by the internal laws of
the State of Delaware as applied to agreements entered into among Delaware residents to be
performed entirely within Delaware, without regard to principles of conflicts of law.



     8.4 Expenses.  The Company and the Investor shall each pay the fees and expenses of their own
respective counsel, advisers, accountants, and other experts, if any, and all other expenses
incurred by such party incident to the negotiation, preparation, execution, delivery and
performance of this Agreement.



     8.5 Disclosure.  This Agreement and its terms shall be held in strict confidentiality by each
party, and neither the Company nor the Investor (including, without limitation, employees,
advisors, representatives, affiliates or agents of either party) shall disclose or reveal in any
way this Agreement or any of the terms hereof to any third party without the prior written consent
of the other party. Notwithstanding the foregoing and based on consultation with inside or outside
legal counsel, either party may disclose information concerning this Agreement as required by the
rules, orders or regulations of a government or governmental agency (including, without limitation,
any rule, regulation or policy of the SEC or any national securities exchange, market or automated
quotation system on which such party’s securities are listed or quoted). Prior to any such
disclosure however, either party will promptly notify the other party of the scope of and basis for
such disclosure. In the event that either party determines that this Agreement or a portion
thereof is required to be filed with the SEC, such party will, if requested by the other party, use
commercially reasonable efforts to obtain confidential treatment for the portions of this Agreement
for which the other party requested such confidential treatment. Notwithstanding the foregoing,
the Company and the Investor intend to issue a press release on or shortly after the date of
Closing in a form mutually acceptable to both the Company and the Investor.



14









 





     8.6 Survival.  The representations, warranties, covenants and agreements made in this
Agreement shall survive any investigation made by any party hereto and the closing of the
transactions contemplated hereby for one year from the date of the Closing.



     8.7 Successors and Assigns.  This Agreement, and any and all rights, duties and obligations hereunder, shall not be
assigned, transferred, delegated or sublicensed by the Investor without the prior written consent
of the Company. Any attempt by an Investor without such permission to assign, transfer, delegate or
sublicense any rights, duties or obligations that arise under this Agreement shall be void. Subject
to the foregoing and except as otherwise provided herein, the provisions of this Agreement shall
inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto.



     8.8 Entire Agreement.  This Agreement, the Enterprise Agreement, including and that certain
Letter Agreement by and between the Company and the Investor dated January 16, 2009 (the
“Confidentiality Agreement”), together with all schedules, exhibits, annexes hereto and thereto and
the Disclosure Letter, constitute the full and entire understanding and agreement between the
parties with regard to the subjects hereof and thereof. No party shall be liable or bound to any
other party in any manner with regard to the subjects hereof or thereof by any warranties,
representations or covenants except as specifically set forth herein or therein.



     8.9 Delays or Omissions.  Except as expressly provided herein, no delay or omission to
exercise any right, power or remedy accruing to any party to this Agreement upon any breach or
default of any other party under this Agreement shall impair any such right, power or remedy of
such non-defaulting party, nor shall it be construed to be a waiver of any such breach or default,
or an acquiescence therein, or of or in any similar breach or default thereafter occurring, nor
shall any waiver of any single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under this Agreement, or any waiver on
the part of any party of any provisions or conditions of this Agreement, must be in writing and
shall be effective only to the extent specifically set forth in such writing. All remedies, either
under this Agreement or by law or otherwise afforded to any party to this Agreement, shall be
cumulative and not alternative.



     8.10 Severability.  If any provision of this Agreement becomes or is declared by a court of
competent jurisdiction to be illegal, unenforceable or void, portions of such provision, or such
provision in its entirety, to the extent necessary, shall be severed from this Agreement, and such
court will replace such illegal, void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible, the same economic, business and
other purposes of the illegal, void or unenforceable provision. The balance of this Agreement shall
be enforceable in accordance with its terms.



     8.11 Counterparts.  This Agreement may be executed in any number of counterparts, each of
which shall be enforceable against the parties actually executing such counterparts, and all of
which together shall constitute one instrument.



     8.12 Telecopy Execution and Delivery.  A facsimile, telecopy or other reproduction of this
Agreement may be executed by one or more parties hereto and delivered by such party by facsimile or
any similar electronic transmission device pursuant to which the signature of or on behalf of such
party can be seen. Such execution and delivery shall be considered valid, binding and effective for
all purposes. At the request of any party hereto, all parties hereto
agree to execute and deliver an original of this Agreement as well as any facsimile, telecopy
or other reproduction hereof.



15









 





     8.13 Jurisdiction; Venue.  With respect to any disputes arising out of or related to this
Agreement, the parties consent to the exclusive jurisdiction of, and venue in, the state courts in
Salt Lake County in the State of Utah (or in the event of exclusive federal jurisdiction, the
courts of the District of Utah).



     8.14 Further Assurances.  Each party hereto agrees to execute and deliver, by the proper
exercise of its corporate, limited liability company, partnership or other powers, all such other
and additional instruments and documents and do all such other acts and things as may be necessary
to more fully effectuate this Agreement.



     8.15 Attorney’s Fees.  In the event that any suit or action is instituted to enforce any
provisions in this Agreement, the prevailing party in such dispute shall be entitled to recover
from the losing party such reasonable fees and expenses of attorneys and accountants, which shall
include, without limitation, all fees, costs and expenses of appeals.



     8.16 Jury Trial.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING (WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATED TO THIS AGREEMENT.



(signature page follows)




16









 





     The parties are signing this Common Stock Purchase Agreement as of the Effective Date.



	 	 	 	 	 	 	 
	 	 	“COMPANY”	 	 
	 
	 	 	 	 	 	 
	 	 	OMNITURE, INC.,

a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Joshua G. James	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Joshua G. James

Title: President and Chief Executive Officer	 	 






(Signature page to the Common Stock Purchase Agreement)




 









 





     The parties are signing this Common Stock Purchase Agreement as of the Effective Date.



	 	 	 	 	 	 	 
	 	 	“INVESTOR”	 	 
	 
	 	 	 	 	 	 
	 	 	WPP LUXEMBOURG GAMMA THREE SARL,

a company formed under the laws of Luxembourg	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Thiemy Lenders
 

	 	 
	 	 	Name: Thiemy Lenders	 	 
	 	 	Title: Manager	 	 






(Signature page to the Common Stock Purchase Agreement)




 









 





     The parties are signing this Common Stock Purchase Agreement as of the Effective Date.



	 	 	 	 	 	 	 
	 	 	“WPP”	 	 
	 
	 	 	 	 	 	 
	 	 	WPP GROUP USA, INC.*

a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Kevin Farewell
 

	 	 
	 	 	Name: Kevin Farewell


Title: Assistant Treasurer, VP and Senior Tax Counsel	 	 






 




	*	 	Solely for the purposes of Sections 5.2 and 8.





(Signature page to the Common Stock Purchase Agreement)