OMNITURE, INC.
Exhibit
(d)(6)
2006
EQUITY INCENTIVE PLAN
FOR
NON-U.S.
PARTICIPANTS OF OFFER TO EXCHANGE
CERTAIN OUTSTANDING OPTIONS FOR NEW OPTIONS
CERTAIN OUTSTANDING OPTIONS FOR NEW OPTIONS
Unless otherwise defined herein, the terms defined in the
Omniture, Inc. 2006 Equity Incentive Plan (the
“Plan”) will have the same defined
meanings in this Stock Option Award Agreement (“Award
Agreement”).
| I. | NOTICE OF STOCK OPTION GRANT |
Participant’s Name:
Participant’s Address:
You have been granted an option to purchase Shares of the
Company, subject to the terms and conditions of the Plan, this
Award Agreement and the Offer to Exchange Certain Outstanding
Options for New Options (the “Offer to
Exchange”), including Exhibit B for
Participant’s country (if any) as follows:
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Grant Number:
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Date of Grant:
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Vesting Commencement Date:
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Exercise Price per Share:
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$ | |
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Total Number of Shares Granted:
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Total Exercise Price:
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$ | |
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Type of Option:
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Nonstatutory Stock Option (NSO) | |
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Term/Expiration Date:
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A. Vesting Schedule:
The option to purchase Shares (the “Option”)
will vest in equal amounts each month over a period
of
months, determined based on the original grant date of
Participant’s eligible options that Participant exchanged
for this Option pursuant to the Offer to Exchange
(“exchanged options”).
Termination Period:
Subject to the terms of the vesting schedule above, this Option
shall be exercisable for three (3) months after
Participant’s active service as a Service Provider ceases,
unless such termination is due to Participant’s death or
Disability, in which case this Option shall be exercisable for
one (1) year after Participant’s active service as a
Service Provider ceases. Notwithstanding the foregoing, in no
event may this Option be exercised after the Term/Expiration
Date as provided above and may be subject to earlier termination
as provided in Section 14(c) of the Plan.
| II. | AWARD AGREEMENT |
X. Xxxxx of Option.
The Administrator hereby grants to the individual named in the
Notice of Grant attached as Part I of this Award Agreement
(the “Participant”) an Option to
purchase the number of Shares, as set forth in the Notice of
Grant, at the exercise price per share set forth in the Notice
of Grant (the “Exercise Price”), subject
to the terms and conditions of the Plan and
Exhibit B for Participant’s country (if any),
which are incorporated herein by reference. Subject to
Section 19(c) of the Plan, in the event of a conflict
between the terms and conditions of the Plan, and the terms and
conditions of this Award Agreement (including any terms in
Exhibit B applying to Participant’s country),
the terms and conditions of the Plan will prevail.
B. Exercise of Option.
1. Right to Exercise. This
Option is exercisable during its term in accordance with the
Vesting Schedule set out in the Notice of Grant and the
applicable provisions of the Plan and this Award Agreement,
including Exhibit B for Participant’s country
(if any).
2. Method of Exercise. This
Option is exercisable by delivery of an exercise notice, in the
form attached as Exhibit A (the “Exercise
Notice”) or in such other form and manner as
determined by the Administrator, which will state the election
to exercise the Option, the number of Shares in respect of which
the Option is being exercised (the “Exercised
Shares”), and such other representations and
agreements as may be required by the Company pursuant to the
provisions of the Plan. The Exercise Notice will be completed by
Participant and delivered to the Company. The Exercise Notice
will be accompanied by payment of the aggregate Exercise Price
as to all Exercised Shares together with any applicable
withholding taxes as set forth in Section F of this Award
Agreement. This Option will be deemed to be exercised upon
receipt by the Company of such fully executed Exercise Notice
accompanied by such aggregate Exercise Price.
No Shares will be issued pursuant to the exercise of this Option
unless such issuance and exercise comply with Applicable Laws.
C. Method of Payment.
Payment of the aggregate Exercise Price will be by any of the
following, or a combination thereof, at the election of
Participant:
1. cash;
2. check; or
3. consideration received by the Company under a formal
cashless exercise program adopted by the Company in connection
with the Plan.
D. Non-Transferability of Option.
This Option may not be transferred in any manner otherwise than
by will or by the laws of descent or distribution and may be
exercised during the lifetime of Participant only by Participant.
E. Term of Option.
This Option may be exercised only within the term set out in the
Notice of Grant, and may be exercised during such term only in
accordance with the Plan and the terms of this Award Agreement
(including any terms in Exhibit B applying to
Participant’s country).
F. Tax Obligations.
1. Withholding
Taxes. Regardless of any action the Company
or the Parent or Subsidiary employing or retaining Participant
(the “Employer”) takes with respect to
any or all income tax, social insurance, payroll tax, payment on
account or other tax-related items related to Participant’s
participation in the Plan and legally applicable to Participant
or deemed by the Company or the Employer to be an appropriate
charge to Participant even if technically due by the Company or
the Employer (“Tax-Related Items”),
Participant acknowledges that the ultimate liability for all
Tax-Related Items is and remains Participant’s
responsibility and may exceed the amount actually withheld by
the Company or the Employer. Participant further acknowledges
the Company
and/or the
Employer (a) make no representations or undertakings
regarding the treatment of any Tax-Related Items in connection
with any aspect of the Option, including, but not limited to,
the grant, vesting or exercise of the Option, the subsequent
sale of Shares acquired pursuant to such exercise and the
receipt of dividends, if any; and (b) do not commit to and
are under no obligation to structure the terms of the grant or
any aspect of the Option to reduce or eliminate
Participant’s liability for Tax-Related Items or achieve
any particular tax result. Further, if Participant has become
subject to tax in more than one jurisdiction between the date of
grant and the date of any relevant taxable event, Participant
acknowledges that the Company
and/or the
Employer (or former employer, as applicable) may be required to
withhold or account for Tax-Related Items in more than one
jurisdiction.
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Prior to the relevant taxable or tax withholding event, as
applicable, Participant will pay or make adequate arrangements
satisfactory to the Company
and/or the
Employer to satisfy all Tax-Related Items. In this regard,
Participant authorizes the Company
and/or the
Employer, at their discretion, to satisfy the obligations with
regard to all Tax-Related Items legally payable by Participant
by one or a combination of the following:
(i) withholding from Participant’s wages or other cash
compensation paid to Participant by the Company
and/or the
Employer; or
(ii) withholding from proceeds of the sale of Shares
acquired upon exercise of the Option through a voluntary sale or
a mandatory sale arranged by the Company (on Participant’s
behalf pursuant to this authorization); or
(iii) withholding in Shares to be issued upon exercise of
the Option.
To avoid negative accounting issues, the Company may withhold or
account for Tax-Related Items by considering applicable minimum
statutory withholding amounts or other applicable withholding
rates. If the obligation for Tax-Related Items is satisfied by
withholding in Shares, for tax purposes, Participant is deemed,
for tax purposes only, to have been issued the full number of
Shares subject to the Option notwithstanding that a number of
Shares are held back solely for the purpose of paying the
Tax-Related Items due as a result of any aspect of
Participant’s participation in the Plan.
Finally, Participant shall pay to the Company or the Employer
any amount of Tax-Related Items that the Company or the Employer
may be required to withhold or account for as a result of
Participant’s participation in the Plan or
Participant’s purchase of Shares that cannot be satisfied
by the means previously described. Participant acknowledges and
agrees that the Company may refuse to honor the exercise and
refuse to deliver Shares if Participant fails to comply with
Participant’s obligations in connection with the
Tax-Related Items, as described in this section.
2. Code
Section 409A. Under Code
Section 409A, an option that vests after December 31,
2004 that was granted with a per share exercise price that is
determined by the U.S. Internal Revenue Service (the
“IRS”) to be less than the fair market
value of a Share on the date of grant (a “discounted
option”) may be considered “deferred
compensation.” An option that is a “discounted
option” may result in (a) income recognition by
Participant (if Participant is a U.S. taxpayer) prior to
the exercise of the option, (b) an additional twenty
percent (20%) tax, and (c) potential penalty and interest
charges. Participant acknowledges that the Company cannot and
has not guaranteed that the IRS will agree that the per share
exercise price of this Option equals or exceeds the fair market
value of a Share on the Date of Grant in a later examination.
Participant agrees that if the IRS determines that the Option
was granted with a per share exercise price that was less than
the fair market value of a Share on the Date of Grant,
Participant will be solely responsible for Participant’s
costs related to such a determination.
The Board reserves the right, to the extent it deems necessary
or advisable in its sole discretion, to unilaterally alter or
modify this Award Agreement to ensure that all Options provided
to Participants who are U.S. taxpayers are made in such a
manner that either qualifies for exemption from or complies with
Section 409A of the Code; provided, however, that the
Company makes no representation that the Options will be exempt
from or comply with Section 409A of the Code and makes no
undertaking to preclude Section 409A of the Code from
applying to the Options.
G. Entire Agreement; Governing Law.
The Plan is incorporated herein by reference. The Plan and this
Award Agreement (including any terms in Exhibit B
applying to Participant’s country), constitute the entire
agreement of the parties with respect to the subject matter
hereof and supersede in their entirety all prior undertakings
and agreements of the Company and Participant with respect to
the subject matter hereof, and may not be modified adversely to
Participant’s interest except by means of a writing signed
by the Company and Participant. This grant of Options and the
provisions of the Award Agreement (including any terms in
Exhibit B applying to Participant’s country)
are governed by, and construed in accordance with, the internal
substantive laws, but not the choice of law rules, of Utah. For
purposes of litigating any dispute that arises directly or
indirectly from the relationship of the parties evidenced by
this grant or the Award Agreement (including any terms in
Exhibit B applying to Participant’s country),
the parties hereby submit to and
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consent to the exclusive jurisdiction of the State of Utah and
agree that such litigation shall be conducted only in the courts
of Utah, Fourth District, or the federal courts for the United
States for the Tenth Circuit, and no other courts, where this
grant is made
and/or to be
performed.
H. NO GUARANTEE OF CONTINUED SERVICE.
PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE VESTING OF THE
OPTION PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED
ONLY BY CONTINUING AS AN EMPLOYEE, CONSULTANT OR NON-EMPLOYEE
DIRECTOR AT THE WILL OF THE COMPANY (AND NOT THROUGH THE ACT OF
BEING HIRED, BEING GRANTED AN OPTION OR PURCHASING SHARES
HEREUNDER). PARTICIPANT FURTHER ACKNOWLEDGES AND AGREES THAT
THIS AWARD AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER
AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE
AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS AN
EMPLOYEE, CONSULTANT OR NON-EMPLOYEE DIRECTOR FOR THE VESTING
PERIOD, FOR ANY PERIOD, OR AT ALL, AND WILL NOT INTERFERE WITH
PARTICIPANT’S RIGHT OR THE COMPANY’S RIGHT TO
TERMINATE PARTICIPANT’S RELATIONSHIP AS AN EMPLOYEE,
CONSULTANT OR NON-EMPLOYEE DIRECTOR AT ANY TIME.
I. Nature of Grant.
In accepting the grant, Participant acknowledges that:
(1) the Plan is established voluntarily by the Company, it
is discretionary in nature and it may be modified, amended,
suspended or terminated by the Company at any time;
(2) the grant of the Option is voluntary and occasional and
does not create any contractual or other right to receive future
grants of Options, or benefits in lieu of Options, even if
Options have been granted repeatedly in the past;
(3) all decisions with respect to future Option grants, if
any, will be at the sole discretion of the Company;
(4) Participant is voluntarily participating in the Plan;
(5) the Option and the Shares underlying the Option are an
extraordinary item that does not constitute compensation of any
kind for services of any kind rendered to the Company or the
Employer, and which is outside the scope of Participant’s
employment contract, if any;
(6) the Option and the Shares underlying the Option are not
intended to replace any pension rights or compensation;
(7) the Option and the Shares underlying the Option are not
part of normal or expected compensation or salary for any
purposes, including, but not limited to, calculating any
severance, resignation, termination, redundancy, dismissal, end
of service payments, bonuses, long-service awards, pension or
retirement or welfare benefits or similar payments and in no
event should be considered as compensation for, or relating in
any way to, past services for the Company or the Employer or any
Parent or Subsidiary or affiliate of the Company;
(8) the Option grant and Participant’s participation
in the Plan will not be interpreted to form an employment or
service contract or relationship with the Company or any Parent,
Subsidiary or affiliate of the Company;
(9) the future value of the underlying Shares is unknown
and cannot be predicted with certainty;
(10) in consideration of the grant of the Option, no claim
or entitlement to compensation or damages shall arise from
forfeiture of the Option resulting from termination of
Participant’s status as a Service Provider by the Company
or the Employer (for any reason whatsoever and whether or not in
breach of local labor laws) and Participant irrevocably releases
the Company and the Employer from any such claim that may arise;
if, notwithstanding the foregoing, any such claim is found by a
court of competent jurisdiction to have arisen, then, by signing
this Award Agreement, Participant shall be deemed irrevocably to
have waived any entitlement to pursue such claim;
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(11) in the event of termination of Participant’s
status as a Service Provider (whether or not in breach of local
labor laws), Participant’s right to receive and vest in the
Option under the Plan, if any, will terminate effective as of
the date that Participant is no longer actively a Service
Provider and will not be extended by any notice period mandated
under local law (e.g., active service would not include a
period of “garden leave” or similar period pursuant to
local law); furthermore, in the event of termination of active
service as a Service Provider (whether or not in breach of local
labor laws), Participant’s right to exercise the Option
after termination of service, if any, will be measured by the
date of termination of Participant’s active service and
will not be extended by any notice period mandated under local
law; the Administrator shall have the exclusive discretion to
determine when Participant is no longer actively a Service
Provider for purposes of the Participant’s Option grant;
(12) the Option and the benefits under the Plan, if any,
will not automatically transfer to another company in the case
of a merger, take-over or transfer of liability; and
(13) the Company is not providing any tax, legal or
financial advice, nor is the Company making any recommendations
regarding Participant’s participation in the Plan, or
Participant’s purchase or sale of the underlying Shares.
Participant is hereby advised to consult with Participant’s
own personal tax, legal and financial advisors regarding
Participant’s participation in the Plan before taking any
action related to the Plan.
J. Data Privacy.
Participant hereby explicitly and unambiguously consents
to the collection, use and transfer, in electronic or other
form, of Participant’s personal data as described in this
Award Agreement and any other Option grant materials by and
among, as applicable, the Employer, the Company and its Parents,
Subsidiaries and affiliates for the exclusive purpose of
implementing, administering and managing Participant’s
participation in the Plan.
Participant understands that the Company and the Employer
may hold certain personal information about Participant,
including, but not limited to, Participant’s name, home
address and telephone number, date of birth, social insurance
number or other identification number, salary, nationality, job
title, any shares of stock or directorships held in the Company,
details of all Options or any other entitlement to shares of
stock awarded, canceled, exercised, vested, unvested or
outstanding in Participant’s favor, for the exclusive
purpose of implementing, administering and managing the Plan
(“Data”).
Participant understands that Data will be transferred to
E*TRADE FINANCIAL , or such other stock plan service provider as
may be selected by the Company in the future, which is assisting
the Company with the implementation, administration and
management of the Plan. Participant understands that the
recipients of the Data may be located in the United States or
elsewhere, and that the recipients’ country (e.g.,
the United States) may have different data privacy laws and
protections from Participant’s country. Participant
understands that Participant may request a list with the names
and addresses of any potential recipients of the Data by
contacting Participant’s local human resources
representative. Participant authorizes the Company, E*TRADE
FINANCIAL and any other possible recipients which may assist the
Company (presently or in the future) with implementing,
administering and managing the Plan to receive, possess, use,
retain and transfer the Data, in electronic or other form, for
the sole purpose of implementing, administering and managing
Participant’s participation in the Plan. Participant
understands that Data will be held only as long as is necessary
to implement, administer and manage Participant’s
participation in the Plan. Participant understands that
Participant may, at any time, view Data, request additional
information about the storage and processing of Data, require
any necessary amendments to Data or refuse or withdraw the
consents herein, in any case without cost, by contacting in
writing Participant’s local human resources representative.
Participant understands, however, that refusing or withdrawing
consent may affect Participant’s ability to participate in
the Plan. For more information on the consequences of
Participant’s refusal to consent or withdrawal of consent,
Participant understands that Participant may contact
Participant’s local human resources representative.
K. Language.
If Participant has received this Award Agreement or any other
document related to the Plan translated into a language other
than English and if the meaning of the translated version is
different from the English version, the English version will
control, unless otherwise prescribed by local law.
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L. Electronic Delivery.
The Company may, in its sole discretion, decide to deliver any
documents related to the Participant’s participation in the
Plan by electronic means or to request Participant’s
consent to participate in the Plan by electronic means.
Participant hereby consents to receive such documents by
electronic delivery and, if requested, to agree to participate
in the Plan through an on-line or electronic system established
and maintained by the Company or a third party designated by the
Company.
M. Severability.
The provisions of this Award Agreement are severable and if any
one or more provisions are determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions
shall nevertheless be binding and enforceable.
N. Exhibit B.
Notwithstanding any provisions in this Award Agreement, the
Option will be subject to any special terms and conditions set
forth in Exhibit B to this Award Agreement for
Participant’s country. Moreover, if Participant relocates
to one of the countries included in Exhibit B, the
special terms and conditions for such country will be applicable
to Participant, to the extent the Company determines that the
application of such terms and conditions is necessary or
advisable in order to comply with local law or facilitate the
administration of the Plan. Exhibit B constitutes
part of this Award Agreement.
O. Imposition of Other Requirements.
The Company reserves the right to impose other requirements on
Participant’s participation in the Plan, on the Option and
on any Shares acquired under the Plan, to the extent the Company
determines it is necessary or advisable in order to comply with
local law or facilitate the administration of the Plan, and to
require Participant to sign any additional agreements or
undertakings that may be necessary to accomplish the foregoing.
[Remainder of Page Intentionally Left Blank]
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By Participant’s signature and the signature of the
Company’s representative below, Participant and the Company
agree that this Option is granted under and governed by the
terms and conditions of the Plan and this Award Agreement
(including any terms in Exhibit B applying to
Participant’s country). Participant has reviewed the Plan
and this Award Agreement (including any terms in
Exhibit B applying to Participant’s country) in
their entirety, has had an opportunity to obtain the advice of
counsel prior to executing this Award Agreement, and fully
understands all provisions of the Plan and Award Agreement
(including any terms in Exhibit B applying to
Participant’s country). Participant hereby agrees to accept
as binding, conclusive and final all decisions or
interpretations of the Administrator upon any questions relating
to the Plan and Award Agreement (including any terms in
Exhibit B applying to Participant’s country).
Participant further agrees to notify the Company upon any change
in the residence address indicated below.
| PARTICIPANT: | OMNITURE, INC. | |
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[name]
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By | |
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Residence Address:
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Print Name | |
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[address 1]
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[city state zip]
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Title |
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EXHIBIT A
2006
EQUITY INCENTIVE PLAN
EXERCISE
NOTICE
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxx, Xxxx 00000
Attention: Stock Plan Administration
1. Exercise of
Option. Effective as of
today, , ,
the undersigned (“Purchaser”) hereby
elects to
purchase shares
(the “Shares”) of the Common Stock of
Omniture, Inc. (the “Company”) under and
pursuant to the 2006 Equity Incentive Plan (the
“Plan”) and the Award Agreement
dated (the
“Award Agreement”), including any terms
in Exhibit B applying to Participant’s country.
The Exercise Price for the Shares will be
$ . ,
as required by the Award Agreement.
2. Delivery of
Payment. Purchaser herewith delivers to the
Company the full Exercise Price for the Shares and any
applicable Tax-Related Items as set forth in Section F of
the Award Agreement.
3. Representations of
Purchaser. Purchaser acknowledges that
Purchaser has received, read and understood the Plan and the
Award Agreement (including any terms in Exhibit B
applying to Participant’s country) and agrees to abide by
and be bound by their terms and conditions.
4. Rights as
Stockholder. Until the issuance (as evidenced
by the appropriate entry on the books of the Company or of a
duly authorized transfer agent of the Company) of the Shares, no
right to vote or receive dividends or any other rights as a
stockholder will exist with respect to the Optioned Stock,
notwithstanding the exercise of the Option. The Shares so
acquired will be issued to Purchaser as soon as practicable
after exercise of the Option. No adjustment will be made for a
dividend or other right for which the record date is prior to
the date of issuance, except as provided in Section 14 of
the Plan.
5. Tax
Consultation. Purchaser understands that
Purchaser may suffer adverse tax consequences as a result of
Purchaser’s purchase or disposition of the Shares.
Purchaser represents that Purchaser has consulted with any tax
consultants Purchaser deems advisable in connection with the
purchase or disposition of the Shares and that Purchaser is not
relying on the Company for any tax advice.
6. Entire Agreement; Governing
Law. The Plan and Award Agreement (including
any terms in Exhibit B applying to
Participant’s country) are incorporated herein by
reference. This Exercise Notice, the Plan and the Award
Agreement (including any terms in Exhibit B applying
to Participant’s country) constitute the entire agreement
of the parties with respect to the subject matter hereof and
supersede in their entirety all prior undertakings and
agreements of the Company and Purchaser with respect to the
subject matter hereof, and may not be modified adversely to the
Purchaser’s interest except by means of a writing signed by
the Company and Purchaser. The terms of this Exercise Notice are
governed by, and construed in accordance with, the internal
substantive laws, but not the choice of law rules, of Utah. For
purposes of litigating any dispute that arises directly or
indirectly from the relationship of the parties evidenced by the
Option grant or the terms of the Award Agreement, the parties
hereby submit to and consent to the exclusive jurisdiction of
the State of Utah and agree that such litigation shall be
conducted only in the courts of Utah, Fourth District, or the
federal courts for the United States for the Tenth Circuit, and
no other courts, where this Option grant is made
and/or to be
performed.
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Submitted by:
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Accepted by: | |
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PURCHASER:
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OMNITURE, INC. | |
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Signature
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By | |
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Print
Name
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Its | |
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Address:
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Address: | |
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Omniture, Inc. 000 Xxxx Xxxxxxxxxx Xxxxxx Xxxx, Xxxx 00000 Attention: Stock Plan Administration Date Received |
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EXHIBIT B
SPECIAL
TERMS FOR NON-US PARTICIPANTS
This Exhibit B includes special terms and conditions
applicable to Participants in the countries below. These terms
and conditions are in addition to those set forth in the Award
Agreement. Capitalized terms used, but not defined herein, shall
have the same meanings assigned to them in the Plan and the
Award Agreement.
This Exhibit B may also include information
regarding exchange controls and certain other issues of which
Participant should be aware with respect to Participant’s
participation in the Plan. The information is based on the
securities, exchange control and other laws in effect in the
respective countries as of May 2009. Such laws are often complex
and change frequently. As a result, the Company strongly
recommends that Participant not rely on the information noted
herein as the only source of information relating to the
consequences of Participant’s participation in the Plan
because the information may be out of date at the time
Participant exercises the Option or sells Shares
he/she
acquires under the Plan.
In addition, the information is general in nature and may not
apply to Participant’s particular situation, and the
Company is not in a position to assure Participant of any
particular result. Accordingly, Participant is strongly
advised to seek appropriate professional advice as to how the
relevant laws in Participant’s country apply to his or her
specific situation.
If Participant is a citizen or resident of another country, or
is considered a resident of another country for local law
purposes, the information contained in this Appendix may not be
applicable to him or her.
Australia
Securities
Law Disclaimer
Participant acknowledges and understands that if Participant
acquires Shares upon exercise of the Option and Participant
offers the Shares for sale to a person or entity resident in
Australia, the offer may be subject to disclosure requirements
under Australian law. Participant acknowledges and understands
that Participant should obtain legal advice on the disclosure
obligations prior to making any such offer.
Exchange
Control Reporting
Exchange control reporting is required for cash transactions
exceeding A$10,000 and international fund transfers. The
Australian bank assisting with the transaction will file the
report. If there is no Australian bank involved in the transfer,
Participant will be required to file the report.
Canada
Resale
of Shares
Participant is permitted to sell Shares acquired upon exercise
of the Option through a designated broker provided the resale of
Shares takes place outside of Canada through the stock exchange
on which the Shares are listed. Currently, the Company’s
Shares are listed on the Nasdaq Global Market.
Termination
Period
This provision replaces Section I(11) of the Award
Agreement:
In the event that Participant ceases to be a Service Provider
for any reason other than death or Disability (whether or not in
breach of local labor laws), Participant’s right to receive
additional options or to vest in the Option will end as of the
date that is the earlier of (1) the date Participant
receives notice of termination of service as a Service Provider,
or (2) the date on which Participant is no longer actively
providing service as a Service Provider,
regardless of any notice period or period of pay in lieu of such
notice required under local law (including, but not limited to
statutory law, regulatory law
and/or
common law); the Committee shall have the exclusive discretion
to determine when Participant is no longer actively providing
service for purposes of the Option.
Data
Privacy Notice and Consent
This provision supplements Section J of the Award Agreement:
Participant hereby authorizes the Company and the Company’s
representatives to discuss with and obtain all relevant
information from all personnel, professional or otherwise,
involved in the administration and operation of the Plan.
Participant further authorizes the Company
and/or any
Parent, Subsidiary or affiliate of the Company to record such
information in his or her employee file.
Consent
to Receive Information in English for Quebec
Participants
The parties acknowledge that it is their express wish that the
present agreement, as well as all documents, notices and legal
proceedings entered into, given or instituted pursuant hereto or
relating directly or indirectly hereto, be drawn up in English.
Les parties reconnaissent avoir exigé la rédaction
en anglais de la présente convention, ainsi que de tous
documents exécutés, xxxx xxxxxx et
proćedures judiciares intentées, directement ou
indirectement, relativement á ou suite á la
présente convention.
Germany
Exchange
Control Reporting
Participant acknowledges and understands that cross-border
payments in excess of €12,500 must be reported monthly. If
Participant uses a German bank to transfer a cross-border
payment in excess of €12,500 in connection with the
purchase or sale of Shares, the bank will make the report. In
addition, Participant must report any receivables or payables or
debts in foreign currency exceeding an amount of €5,000,000
on a monthly basis. Finally, Participant must also report his or
her holdings annually in the unlikely event that Participant
holds Shares representing 10% or more of the total or voting
capital of the Company.
Hong
Kong
Securities
Law Disclaimer
The contents of the Award Agreement have not been reviewed by
any regulatory authority in Hong Kong. Participant is advised to
exercise caution in relation to the offer. If Participant has
any doubt about any of the contents of the Award Agreement or
the Plan, Participant should obtain independent professional
advice.
This offer of the Option and the Shares underlying the Option is
not a public offer of securities and is available only for
Employees, Directors and Consultants of the Company or any of
its Parents, Subsidiaries, or affiliates participating in the
Plan.
Sale
of Shares
In the event the Option vests within six months of the Date of
Grant, Participant agrees that he or she will not exercise the
Option and sell the Shares acquired prior to the six-month
anniversary of the Date of Grant.
Japan
Exchange
Control Reporting
If Participant acquires Shares valued at more than
¥100,000,000 in a single transaction, Participant must file
a Securities Acquisition Report with the Ministry of Finance
through the Bank of Japan within 20 days of the purchase of
the Shares.
2
In addition, if Participant pays more than ¥30,000,000 in a
single transaction for the purchase of Shares when Participant
exercises the Option, he or she must file a Payment Report with
the Ministry of Finance through the Bank of Japan by the
20th day of the month following the month in which the
payment was made. The precise reporting requirements vary
depending on whether or not the relevant payment is made through
a bank in Japan.
A Payment Report is required independently from a Securities
Acquisition Report. Therefore, if the total amount that
Participant pays upon a one-time transaction for exercising the
Option and purchasing Shares exceeds ¥100,000,000, then
Participant must file both a Payment Report and a Securities
Acquisition Report.
Korea
Exchange
Control Reporting
If Participant realizes US$500,000 or more from the sale of
Shares, he or she must repatriate the proceeds to Korea within
eighteen months of the sale.
In addition, if Participant remits funds to purchase Shares, the
remittance has to be “confirmed” by a foreign exchange
bank in Korea. This is an automatic procedure (i.e., the
bank does not need to “approve” the remittance), and
it should take no more than a single day to process. To receive
the confirmation, Participant should submit (i) a
prescribed form application, (ii) the Notice of Grant, the
Award Agreement and any other Plan documents Participant
received, and (iii) certificates of employment with his or
her local employer. Participant should check with the bank to
determine whether there are any additional requirements. This
confirmation is not necessary for cashless sell-all exercises
since there is no remittance out of Korea.
Singapore
Securities
Law Disclaimer
The grant of the Option is being made in reliance on
Section 273(1)(f) of the Securities and Futures Act (Cap.
289) (“SFA”) pursuant to which it is exempt from the
prospectus and registration requirements under the SFA.
Director
Notification
Participant understands and acknowledges that if Participant is
a director, associate director or shadow director of a Singapore
Parent, Subsidiary or affiliate of the Company, Participant is
subject to certain notification requirements under the Singapore
Companies Act, regardless of whether Participant is a Singapore
resident or employed in Singapore. Among these requirements is
an obligation to notify the Singapore Parent, Subsidiary or
affiliate in writing when Participant receives an interest
(e.g., an Option Shares) in the Company. In addition,
Participant must notify the Singapore Parent, Subsidiary or
affiliate when Participant sells Shares of the Company
(including when Participant sells Shares acquired under the
Plan). These notifications must be made within two days of
acquiring or disposing of any interest in the Company. In
addition, a notification must be made of Participant’s
interests in the Company within two days of becoming a director,
associate director or shadow director.
Sweden
No country-specific terms apply.
Taiwan
Exchange
Control Reporting
If Participant is a resident of Taiwan (including an expatriate
holding an Alien Resident Certificate), Participant may acquire
foreign currency to purchase Shares and remit the same out of or
into Taiwan up to US$5,000,000 per year without justification.
If Participant is an expatriate employee who does not have an
Alien Resident Certificate, Participant may remit into Taiwan
and convert to local currency up to US$100,000 at each
remittance with no annual limitation. Remittance of funds for
the purchase of Shares must be made through an authorized
foreign exchange bank. If the transaction amount is TWD500,000
or more in a single transaction, Participant must submit a
Foreign Exchange Transaction Form to the remitting bank. If the
transaction amount is
3
US$500,000 or more in a single transaction, Participant must
also provide supporting documentation to the satisfaction of the
remitting bank.
United
Kingdom
Tax
and National Insurance Contributions
Acknowledgment
These provisions supplement Section F of the Award
Agreement:
Participant agrees that, if he or she does not pay or the
Employer or the Company does not withhold from Participant the
full amount of Tax-Related Items that he or she owes upon the
exercise of the Option, or the release or assignment of the
Option for consideration, or the receipt of any other benefit in
connection with the Options (the “Taxable Event”)
within 90 days after the Taxable Event, or such other
period specified in Section 222(1)(c) of the U.K. Income
Tax (Earnings and Pensions) Xxx 0000, then the amount that
should have been withheld shall constitute a loan owed by
Participant to the Employer, effective 90 days after the
Taxable Event. Participant agrees that the loan will bear
interest at the official rate of Her Majesty’s Revenue and
Customs (“HMRC”) and will be immediately due and
repayable by Participant, and the Company
and/or the
Employer may recover it at any time thereafter by withholding
the funds from salary, bonus or any other funds due to
Participant by the Employer, by withholding in Shares issued
upon exercise of the Option or from the cash proceeds from the
sale of Shares, or by demanding cash or a check from
Participant. Participant also authorizes the Company to delay
the issuance of any Shares to Participant unless and until the
loan is repaid in full.
Notwithstanding the foregoing, if Participant is an officer or
executive director (as within the meaning of Section 13(k)
of the U.S. Securities and Exchange Act of 1934, as
amended), the terms of the immediately foregoing provision will
not apply. In the event that Participant is an officer or
executive director and Tax-Related Items are not collected from
or paid by Participant within 90 days of the Taxable Event,
the amount of any uncollected Tax-Related Items may constitute a
benefit to Participant on which additional income tax and
national insurance contributions may be payable. Participant
acknowledges that the Company or the Employer may recover any
such additional income tax and national insurance contributions
at any time thereafter by any of the means referred to in
Section F of the Award Agreement.
Joint Election for Transfer of Secondary Class 1
National Insurance Contributions to
Participant. As a condition of the issuance of
Shares upon exercise of the Option and delivery of such Shares
to Participant, Participant agrees to accept any liability for
secondary Class 1 national insurance contributions
(“Employer NICs”), which may be payable by the Company
or the Employer in connection with the Option. To accomplish the
foregoing, Participant agrees to execute a joint election
between himself or herself and the Company
and/or
Employer (the “Joint Election”), in the form specified
and/or
approved for such Election by HMRC and provided to Participant
by the Company or the Employer. Participant further agrees to
enter into such other joint elections as may be required between
himself or herself and any successor to the Company
and/or the
Employer. Participant agrees to enter into a Joint Election
prior to the exercise of the Option. If Participant does not
enter into a Joint Election prior to exercise of the Option, any
purported exercise of the Option shall be null and void without
any liability to the Company
and/or the
Employer. Participant further agrees that the Company
and/or the
Employer may collect the Employer NICs from Participant by any
of the means set forth in Section F of the Award Agreement
4
