CHANGE OF CONTROL
AGREEMENT
This Change of
Control Agreement (the “Agreement”) is made and entered
into by and between
(the “Employee”) and Omniture, Inc. (the
“Company”), effective as of June 7, 2006 (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 the Employee and can cause the 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 the 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 the Employee with an incentive to
continue his or her employment and to motivate the 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 the Employee
with certain severance benefits upon the Employee’s
termination of employment following a Change of Control. These
benefits will provide the Employee with enhanced financial security
and incentive and encouragement to remain with the Company
notwithstanding the possibility of a Change of Control.
4.
Certain capitalized terms used in the Agreement are defined in
Section 7 below.
NOW, THEREFORE, in
consideration of the mutual covenants contained herein, the parties
hereto agree 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 the Employee
acknowledge that the 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 the Employee (an “Employment Agreement”).
If the Employee’s employment terminates for any reason,
including (without limitation) any termination prior to a Change of
Control, the 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 months prior to a Change of Control and
ending on the later of (A) twelve (12) months following a
Change of Control, or (B) one month following the latest of
the originally scheduled one-year, two-year or four-year cliff
vesting date on any of Employee’s Company stock options held
by Employee immediately prior to a Change of Control (the
“Change of Control Period”), (i) the Employee
terminates his or her employment with the Company (or any parent or
subsidiary of the Company) for “Good Reason” (as
defined herein) or (ii) the Company (or any parent or
subsidiary of the Company) terminates the Employee’s
employment for other than “Cause” (as defined herein),
or (iii) the Employee dies or terminates employment due to
becoming Disabled (as defined herein) and the Employee, except in
the case of death, signs and does not revoke a standard release of
claims with the Company in a form acceptable to the Company (the
“Release”), then the Employee shall receive the
following severance from the Company:
(i) Severance Payment . The
Employee shall be entitled to receive a lump-sum severance payment
(less applicable withholding taxes) equal to seventy-five percent
of the Employee’s annual base salary (as in effect
immediately prior to (A) the Change of Control, or
(B) the Employee’s termination, whichever is greater)
plus seventy-five percent of the Employee’s target bonus for
the fiscal year in which the Change of Control or the
Employee’s termination occurs, whichever is
greater.
(ii) Equity Compensation
Acceleration . One hundred percent (100%) of the then unvested
Employee’s outstanding stock options, stock appreciation
rights, restricted stock units and other Company equity
compensation awards (the “Equity Compensation Awards”)
shall immediately vest and became exercisable. Any Company stock
options and stock appreciation rights shall thereafter remain
exercisable following the 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 the
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) nine (9) months from the date of termination, or
(ii) the date upon which the 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 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
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the
“qualifying event” for Employee and his or her
dependents shall be the date upon which the Company-Paid Coverage
terminates.
(b) Timing of Severance
Payments . The severance payment to which Employee is entitled
shall be paid by the Company to Employee in cash and in full, not
later than ten (10) calendar days after the effective date of
the Release. If the 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 the Employee’s designated
beneficiary, if living, or otherwise to the personal representative
of the Employee’s estate.
(c) Voluntary Resignation;
Termination for Cause . If the Employee’s employment with
the Company terminates (i) voluntarily by the Employee other
than for Good Reason, or (ii) for Cause by the Company, then
the 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 the Employee’s
employment is terminated for any reason, either prior to the Change
of Control Period or after the Change of Control Period, then the
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 . Notwithstanding any other provision of this
Agreement, if the Employee is a “key employee” under
Code Section 409A and a delay in making any payment or
providing any benefit under this Plan is required by Code
Section 409A, such payments shall not be made until the end of
six (6) months following the date of the Employee’s
separation from service as required by Code
Section 409A.
4.
Coordination with Existing Agreements . In the event of a
termination of Employee’s employment within the Change of
Control Period, the provisions of this Agreement are intended to
enhance, but not be additive, to any pre-existing written
agreements between the Company and Employee. For example, if
Employee’s employment agreement with the Company provides for
a specified cash payment upon a termination without cause, and
severance payments are triggered under both the employment
agreement and this Agreement, Employee shall be entitled to the
larger cash payment provided in either agreement but shall not be
entitled to the sum of the two cash payments. The same principle
applies to the other individual elements of severance provided
herein including equity compensation award accelerated vesting.
Except as otherwise provided in this Section 4, the benefits
provided to Employee under this Agreement are intended to be and
are exclusive and in lieu of any other rights or remedies to which
the Employee or the Company may otherwise be entitled, whether at
law, tort or contract, in equity, and including pursuant to the
Company’s other severance plans, arrangements or
practices.
5.
Conditional Nature of Severance Payments and Benefits
.
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(a) Noncompete . Employee
acknowledges that the nature of the Company’s business is
such that if Employee were to become employed by, or substantially
involved in, the business of a competitor of the Company during the
nine months following the termination of Employee’s
employment with the Company, it would be very difficult for
Employee not to rely on or use the Company’s trade secrets
and confidential information. Thus, to avoid the inevitable
disclosure of the Company’s trade secrets and confidential
information, Employee agrees and acknowledges that Employee’s
right to receive the severance payments and benefits set forth in
Section 3(a) (to the extent Employee is otherwise entitled to such
payments) shall be conditioned upon Employee’s compliance in
all respects with any covenant not to compete in effect between
Employee and the Company on the date of this Agreement during the
nine-months following the termination of Employee’s
employment with the Company.
(b) Remedy for Breach . Upon
any breach by Employee of the covenant not to compete referred to
in Section 5(a) during the nine months following the termination of
Employee’s employment with the Company, then, in addition to
any other remedy that the Company may otherwise have, all severance
payments and benefits pursuant to this Agreement shall immediately
cease and any stock options or stock appreciation rights then held
by Employee shall immediately terminate and be without further
force and effect, and Employee shall be required to reimburse the
Company any lump-sum severance payment previously paid under
Section 3(a)(i) and the value of any welfare plan
reimbursements previously paid under
Section 3(a)(iii).
6.
Golden Parachute Excise Tax Best Results . In the event that
the severance and other benefits provided for in this agreement or
otherwise payable to Employee (a) constitute “parachute
payments” within the meaning of Section 280G of the
Internal Revenue Code of 1986, as amended (the “Code”)
and (b) would be subject to the excise tax imposed by
Section 4999 of the Code, then such benefits shall be either
be:
(i) delivered in full, or
(ii) delivered as to such lesser
extent which would result in no portion of such severance benefits
being subject to excise tax under Section 4999 of the
Code,
whichever of
the foregoing amounts, taking into account the applicable federal,
state and local income and employment taxes and the excise tax
imposed by Section 4999, results in the receipt by Employee,
on an after-tax basis, of the greatest amount of benefits,
notwithstanding that all or some portion of such benefits may be
taxable under Section 4999 of the Code. Unless the Company and
the Employee otherwise agree in writing, the determination of
Employee’s excise tax liability and the amount required to be
paid under this Section 6 shall be made in writing by the
Company’s independent auditors who are primarily used by the
Company immediately prior to the Change of Control (the
“Accountants”). For purposes of making the calculations
required by this Section 6, the Accountants may make
reasonable assumptions and approximations concerning applicable
taxes and may rely on reasonable, good faith interpretations
concerning the application of Sections 280G and 4999 of the
Code. The Company and the Employee shall furnish to the Accountants
such information and documents as the Accountants may reasonably
request in order to make a determination
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