AMENDED AND RESTATED CHANGE OF
CONTROL AGREEMENT
THIS AMENDED
AND RESTATED CHANGE OF CONTROL AGREEMENT (this “
Agreement ”) is made and entered into by and
between Michael S. Herring (“ Employee ”)
and Omniture, Inc. (the “ Company ”),
effective as of May 13, 2009 (the “ Effective
Date ”).
1. It is
expected that the Company from time to time will consider the
possibility of an acquisition by another company or other change of
control. The Board of Directors of the Company (the “
Board ”) recognizes that such consideration can
be a distraction to Employee and can cause Employee to consider
alternative employment opportunities. The Board has determined that
it is in the best interests of the Company and its stockholders to
assure that the Company will have the continued dedication and
objectivity of Employee, notwithstanding the possibility, threat or
occurrence of a Change of Control (as defined herein) of the
Company.
2. The Board
believes that it is in the best interests of the Company and its
stockholders to provide Employee with an incentive to continue his
or her employment and to motivate Employee to maximize the value of
the Company upon a Change of Control for the benefit of its
stockholders.
3. The Board
believes that it is imperative to provide Employee with certain
severance benefits upon Employee’s termination of employment
following a Change of Control. These benefits will provide Employee
with enhanced financial security and incentive and encouragement to
remain with the Company notwithstanding the possibility of a Change
of Control.
4. The
Company and Employee entered into an Amended and Restated Change of
Control Agreement, dated March 31, 2008 (amending and
restating the original Change of Control Agreement between the
parties, dated June 7, 2006), which was later amended by the
parties on December 18, 2008 (the “ Previous
Agreement ”). This Agreement amends and restates the
Previous Agreement.
5. Certain
capitalized terms used in this Agreement are defined in
Section 7 below.
NOW,
THEREFORE , for good and valuable consideration, including
the mutual covenants contained herein, the Company and Employee
hereby agree that the Previous Agreement is hereby amended and
restated as follows:
1. Term
of Agreement . This Agreement shall terminate upon the date
that all of the obligations of the parties hereto with respect to
this Agreement have been satisfied.
2.
At-Will Employment . The Company and Employee acknowledge
that Employee’s employment is and shall continue to be
at-will, as defined under applicable law, except as may otherwise
be specifically provided under the terms of any written formal
employment agreement or offer letter between the Company and
Employee (an “ Employment Agreement ”).
If Employee’s employment terminates for any reason, including
(without limitation) any termination prior to a Change of Control,
Employee shall not be entitled to any payments, benefits, damages,
awards or compensation other than as provided by this Agreement or
under his or her Employment Agreement, or as may otherwise be
available in accordance with the Company’s established
employee plans.
(a)
Involuntary Termination other than for Cause, Voluntary
Termination for Good Reason or Death or Disability during the
Change of Control Period . If within the period commencing
three (3) months prior to a Change of Control and ending
twelve (12) months following a Change of Control (the “
Change of Control Period ”), (i) Employee
terminates his or her employment with the Company (or any parent or
subsidiary of the Company) for Good Reason (as defined below) or
(ii) the Company (or any parent or subsidiary of the Company)
terminates Employee’s employment for other than Cause (as
defined below), or (iii) Employee dies or terminates
employment due to becoming Disabled (as defined below) and
Employee, except in the case of death, signs and does not revoke a
standard release of claims with the Company in the form attached
hereto as Exhibit A (the “ Release
”), then Employee shall receive the following severance from
the Company:
(i)
Severance Payment . Employee shall be entitled to receive a
lump-sum severance payment (less applicable withholding taxes)
equal to one hundred percent (100%) of Employee’s annual base
salary (as in effect immediately prior to (A) the Change of
Control or (B) Employee’s termination, whichever is
greater) plus an amount equal to Employee’s average
annual bonus for the two (2) fiscal years prior to the fiscal
year in which the Change of Control or Employee’s termination
occurs, whichever is greater.
(ii)
Equity Compensation Acceleration . One hundred percent
(100%) of the Employee’s then unvested outstanding stock
options, stock appreciation rights, restricted stock units and
other Company equity compensation awards (the “ Equity
Compensation Awards ”) shall immediately vest and
become exercisable. Any Company stock options and stock
appreciation rights shall thereafter remain exercisable following
Employee’s employment termination for the period prescribed
in the respective option and stock appreciation right
agreements.
(iii)
Continued Employee Benefits . Company-paid health, dental,
vision, and life insurance coverage at the same level of coverage
as was provided to such Employee immediately prior to the Change of
Control and at the same ratio of Company premium payment to
Employee premium payment as was in effect immediately prior to the
Change of Control (the “ Company-Paid Coverage
”). If such coverage included Employee’s dependents
immediately prior to the Change of Control, such dependents shall
also be covered at Company expense. Company-Paid Coverage shall
continue until the earlier of (i) twelve (12) months from
the date of termination, or (ii) the date upon which Employee
and his dependents become covered under another employer’s
group health, dental, vision, long-term disability or life
insurance plans that provide Employee and
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his dependents
with comparable benefits and levels of coverage. For purposes of
Title X of the Consolidated Budget Reconciliation Act of 1985
(“ COBRA ”), the date of the “
qualifying event ” for Employee and his or her
dependents shall be the date upon which the Company-Paid Coverage
terminates.
(b)
Release of Claims . The receipt of any severance pursuant to
Section 3(a) above will be subject to Employee signing
and not revoking the Release and provided that the Release becomes
effective and irrevocable no later than sixty (60) days
following the termination date (such deadline, the “
Release Deadline ”). The Company shall provide
the Release to Employee within two (2) business days of
termination. If the Release does not become effective by the
Release Deadline, Employee will forfeit any rights to severance
payments or benefits under this Agreement. In no event will
severance payments or benefits be paid or provided until the
Release becomes effective and irrevocable.
(c)
Voluntary Resignation; Termination for Cause . If
Employee’s employment with the Company terminates
(i) voluntarily by Employee other than for Good Reason, or
(ii) for Cause by the Company, then Employee shall not be
entitled to receive severance or other benefits except for those
(if any) as may then be established under the Company’s then
existing severance and benefits plans and practices or pursuant to
other written agreements with the Company.
(d)
Termination Outside of Change of Control Period . In the
event Employee’s employment is terminated for any reason,
either prior to the Change of Control Period or after the Change of
Control Period, then Employee shall be entitled to receive
severance and any other benefits only as may then be established
under the Company’s existing written severance and benefits
plans and practices or pursuant to other written agreements with
the Company.
(e)
Internal Revenue Code Section 409A .
(i) Notwithstanding
anything to the contrary in this Agreement, no severance pay or
benefits to be paid or provided to Employee, if any, pursuant to
this Agreement, when considered together with any other severance
payments or separation benefits that are considered deferred
compensation under Section 409A of the Internal Revenue Code
of 1986, as amended (the “ Code ”), and
the final regulations and any guidance promulgated thereunder
(“ Section 409A ”) (together, the
“ Deferred Compensation Separation Benefits
”) will be paid or otherwise provided until Employee has a
“separation from service” within the meaning of
Section 409A.
(ii) Any
severance payments or benefits under this Agreement that would be
considered Deferred Compensation Severance Benefits will be paid
on, or, in the case of installments, will not commence until, the
sixtieth (60 th )
day following Employee’s separation from service, or, if
later, such time as required by clause (iii) below. Any
installment payments that would have been made to Employee during
the sixty (60) day period immediately following
Employee’s separation from service but for the preceding
sentence will be paid to Employee on the sixtieth (60
th ) day following Employee’s separation from
service and the remaining payments shall be made as provided in
this Agreement. If Employee should die before all amounts have been
paid, such unpaid amounts shall be paid in a lump-sum payment (less
any withholding taxes) to
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Employee’s designated beneficiary, if
living, or otherwise to the personal representative of
Employee’s estate.
(iii) Notwithstanding
anything to the contrary in this Agreement, if Employee is a
“specified employee” within the meaning of
Section 409A at the time of Employee’s termination
(other than due to death), then the Deferred Compensation
Separation Benefits that are payable within the first six
(6) months following Employee’s separation from service,
will become payable on the first payroll date that occurs on or
after the date six (6) months and one (1) day following
the date of Employee’s separation from service. All
subsequent Deferred Compensation Separation Benefits, if any, will
be payable in accordance with the payment schedule applicable to
each payment or benefit. Notwithstanding anything herein to the
contrary, if Employee dies following Employee’s separation
from service, but prior to the six (6) month anniversary of
the separation from service, then any payments delayed in
accordance with this paragraph will be payable in a lump sum as
soon as administratively practicable after the date of
Employee’s death and all other Deferred Compensation
Separation Benefits will be payable in accordance with the payment
schedule applicable to each payment or benefit. Each payment and
benefit payable under this Agreement is intended to constitute
separate payments for purposes of Section 1.409A-2(b)(2) of
the Treasury Regulations.
(iv) Any
amount paid under this Agreement that satisfies the requirements of
the “short-term deferral” rule set forth in
Section 1.409A-1(b)(4) of the Treasury Regulations will not
constitute Deferred Compensation Separation Benefits for purposes
of clause (i) above.
(v) Any
amount paid under this Agreement that qualifies as a payment made
as a result of an involuntary separation from service pursuant to
Section 1.409A-1(b)(9)(iii) of the Treasury Regulations that
does not exceed the Section 409A Limit will not constitute
Deferred Compensation Separation Benefits for purposes of clause
(i) above. For purposes of this Agreement, “
Section 409A Limit ” will mean the lesser of
two (2) times: (i) Employee’s annualized
compensation based upon the annual rate of pay paid to Employee
during the Company’s taxable year preceding the
Company’s taxable year of Employee’s termination of
employment as determined under Treasury
Regulation 1.409A-1(b)(9)(iii)(A)(1) and any Internal Revenue
Service guidance issued with respect thereto; or (ii) the
maximum amount that may be taken into account under a qualified
plan pursuant to Section 401(a)(17) of the Code for the year
in which Employee’s employment is terminated.
(vi) The
foregoing provisions are intended to comply with the requirements
of Section 409A so that none of the severance payments and
benefits to be pr
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