OMNITURE, INC.
Exhibit 10.3D
2006 EQUITY INCENTIVE PLAN
Unless otherwise defined herein, the terms defined in the 2006 Equity Incentive Plan (the
“Plan”) will have the same defined meanings in this Restricted Stock Unit Award Agreement (the
“Award Agreement”).
| I. | NOTICE OF RESTRICTED STOCK UNIT GRANT | |||
| Participant’s Name: | ||||
| Participant’s Address: | ||||
You have been granted the right to receive an Award of Restricted Stock Units, subject to the
terms and conditions of the Plan and this Award Agreement, as follows:
| Grant Number: |
| Date of Grant: |
| Vesting Commencement Date: |
| Number of Restricted Stock Units: |
| Vesting Schedule: |
Subject to any acceleration provisions contained in the Plan or set forth below, the
Restricted Stock Unit will vest in accordance with the following schedule:
[INSERT VESTING SCHEDULE]
In the event Participant ceases to be a Service Provider for any or no reason before
Participant vests in the Restricted Stock Unit, the Restricted Stock Unit and Participant’s right
to acquire any Shares hereunder will immediately terminate.
II.
|
AGREEMENT | |
| X. Xxxxx of Restricted Stock Unit. |
The Administrator hereby grants to the individual named in the Notice of Grant attached as
Part I of this Award Agreement (the “Participant”) under the Plan an Award of Restricted Stock
Units, subject to all of the terms and conditions in this Award Agreement and the Plan, which is
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,
the terms and conditions of the Plan will prevail.
B. Company’s Obligation to Pay.
Each Restricted Stock Unit represents the right to receive a Share on the date it vests.
Unless and until the Restricted Stock Units will have vested in the manner set forth in Section C,
Participant will have no right to payment of any such Restricted Stock Units. Prior to actual
payment of any vested Restricted Stock Units, such Restricted Stock Unit will represent an
unsecured obligation of the Company, payable (if at all) only from the general assets of the
Company. Any Restricted Stock Units that vest in accordance with Sections C or D will be paid to
Participant (or in the event of Participant’s death, to his or her estate) in whole Shares, subject
to Participant satisfying any applicable tax withholding obligations as set forth in Section G.
Subject to the provisions of Section D, such vested Restricted Stock Units shall be paid in Shares
as soon as practicable after vesting, but in each such case within the period ending no later than
the date that is two and one half (21/2) months from the end of the Company’s tax year that includes
the vesting date.
C. Vesting Schedule.
Except as provided in Section D, and subject to Section E, the Restricted Stock Units awarded
by this Award Agreement will vest in accordance with the vesting provisions set forth in the Notice
of Grant attached as Part I of this Award Agreement. Restricted Stock Units scheduled to vest on a
certain date or upon the occurrence of a certain condition will not vest in Participant in
accordance with any of the provisions of this Award Agreement, unless Participant will have been
continuously a Service Provider from the Date of Grant until the date such vesting occurs.
D. Administrator Discretion.
The Administrator, in its discretion, may accelerate the vesting of the balance, or some
lesser portion of the balance, of the unvested Restricted Stock Units at any time, subject to the
terms of the Plan. If so accelerated, such Restricted Stock Units will be considered as having
vested as of the date specified by the Administrator.
Notwithstanding anything in the Plan or this Award Agreement to the contrary, if the vesting
of the balance, or some lesser portion of the balance, of the Restricted Stock Units is accelerated
in connection with Participant’s termination as a Service Provider (provided that such termination
is a “separation from service” within the meaning of Section 409A, as determined by the Company),
other than due to death, and if (x) Participant is a “specified employee” within the meaning of
Section 409A at the time of such termination as a Service Provider and (y) the payment of such
accelerated Restricted Stock Units will result in the imposition of additional tax under Section
409A if paid to Participant on or within the six (6) month period following Participant’s
termination as a Service Provider, then the payment of such accelerated Restricted Stock Units will
not be made until the date six (6) months and one (1) day following the date of Participant’s
termination as a Service Provider, unless the Participant dies following his or her termination as
a Service Provider, in which case, the Restricted Stock Units will be paid in Shares to the
Participant’s estate as soon as practicable following his or her death. It is the intent of this
Award Agreement to comply with the requirements of Section 409A so that none of the Restricted
Stock Units provided under this Award Agreement or Shares issuable thereunder will be subject to
the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so
comply. For purposes of this Award Agreement, “Section 409A” means Section 409A of the Code, and
any proposed, temporary or final Treasury Regulations and Internal Revenue Service guidance
thereunder, as each may be amended from time to time.
E. Forfeiture upon Termination of Status as a Service Provider.
Notwithstanding any contrary provision of this Award Agreement, the balance of the Restricted
Stock Units that have not vested as of the time of Participant’s termination as a Service Provider
for any or no reason and Participant’s right to acquire any Shares hereunder will immediately
terminate.
F. Death of Participant.
Any distribution or delivery to be made to Participant under this Award Agreement will, if
Participant is then deceased, be made to Participant’s designated beneficiary, or if no beneficiary
survives Participant, the administrator or executor of Participant’s estate. Any such transferee
must furnish the Company with (a) written notice of his or her status as transferee, and (b)
evidence satisfactory to the Company to establish the validity of the transfer and compliance with
any laws or regulations pertaining to said transfer.
G. Withholding of Taxes.
Notwithstanding any contrary provision of this Award Agreement, no certificate representing
the Shares will be issued to Participant, unless and until satisfactory arrangements (as determined
by the Administrator) will have been made by Participant with respect to the payment of income,
employment and other taxes which the Company determines must be withheld with respect to such
Shares. The Administrator, in its sole discretion and pursuant to such procedures as it may
specify from time to time, may permit Participant to satisfy such tax withholding obligation, in
whole or in part (without limitation) by (a) paying cash, (b) electing to have the Company withhold
otherwise deliverable cash or Shares having a Fair Market Value equal to the minimum amount
required to be withheld, or (c) delivering to the Company already-owned Shares having a Fair Market
Value equal to the amount required to be withheld. To the extent determined appropriate by the
Company in its discretion, it shall have the right (but not the obligation) to satisfy any tax
withholding obligations by reducing the number of Shares otherwise deliverable to Participant. If
Participant fails to make satisfactory arrangements for the payment of any required tax withholding
obligations hereunder at the time any applicable Restricted Stock Units otherwise are scheduled to
vest pursuant to Sections C or D, Participant will permanently forfeit such Restricted Stock Units
and any right to receive Shares thereunder and the Restricted Stock Units will be returned to the
Company at no cost to the Company.
H. Entire Agreement; Governing Law.
The Plan is incorporated herein by reference. The Plan and this Award Agreement 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. Notwithstanding anything to the contrary
in the Plan or this Award Agreement, the Company reserves the right to revise this Award Agreement
as it deems necessary or advisable, in its sole discretion and without the consent of Participant,
to comply with Section 409A or to otherwise avoid imposition of any additional tax or income
recognition under Section 409A in connection to this Award of Restricted Stock Units. This Award
Agreement is governed by 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 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
10th Circuit, and no other courts, where this grant is made and/or to be
performed.
I. Rights as Stockholder.
Neither Participant nor any person claiming under or through Participant will have any of the
rights or privileges of a stockholder of the Company in respect of any Shares deliverable hereunder
unless and until certificates representing such Shares will have been issued, recorded on the
records of the Company or its transfer agents or registrars, and delivered to Participant. After
such issuance, recordation and delivery, Participant will have all the rights of a stockholder of
the Company with respect to voting such Shares and receipt of dividends and distributions on such
Shares.
J. NO GUARANTEE OF CONTINUED SERVICE.
PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE VESTING OF THE RESTRICTED STOCK UNITS PURSUANT TO
THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS A SERVICE PROVIDER AT THE WILL OF THE
COMPANY (OR THE PARENT OR SUBSIDIARY EMPLOYING OR RETAINING PARTICIPANT) AND NOT THROUGH THE ACT OF
BEING HIRED, BEING GRANTED THIS AWARD OF RESTRICTED STOCK UNITS OR ACQUIRING 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 A SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY
PERIOD, OR AT ALL, AND WILL NOT INTERFERE IN ANY WAY WITH PARTICIPANT’S RIGHT OR THE RIGHT OF THE
COMPANY (OR THE PARENT OR SUBSIDIARY EMPLOYING OR RETAINING PARTICIPANT) TO TERMINATE PARTICIPANT’S
RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT CAUSE.
K. 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 Award 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
Awards 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 than 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.
L. Address for Notices.
Any notice to be given to the Company under the terms of this Award Agreement will be
addressed to the Company at Ominture, Inc., 000 Xxxx Xxxxxxxxxx Xxxxxx Xxxxxxxx X, Xxxx, XX 00000,
or at such other address as the Company may hereafter designate in writing.
X. Xxxxx is Not Transferable.
Except to the limited extent provided in Section F, this grant and the rights and privileges
conferred hereby will not be transferred, assigned, pledged or hypothecated in any way (whether by
operation of law or otherwise) and will not be subject to sale under execution, attachment or
similar process. Upon any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of
this grant, or any right or privilege conferred hereby, or upon any attempted sale under any
execution, attachment or similar process, this grant and the rights and privileges conferred hereby
immediately will become null and void.
N. Binding Agreement.
Subject to the limitation on the transferability of this grant contained herein, this Award
Agreement will be binding upon and inure to the benefit of the heirs, legatees, legal
representatives, successors and assigns of the parties hereto.
O. Additional Conditions to Issuance of Stock.
If at any time the Company will determine, in its discretion, that the listing, registration
or qualification of the Shares upon any securities exchange or under any state or federal law, or
the consent or approval of any governmental regulatory authority is necessary or desirable as a
condition to the issuance of Shares to Participant (or his or her estate), such issuance will not
occur unless and until such listing, registration, qualification, consent or approval will have
been effected or obtained free of any conditions not acceptable to the Company. Where the Company
determines that the delivery of the payment of any Shares will violate federal securities laws or
other applicable laws, the Company will defer delivery until the earliest date at which the Company
reasonably anticipates that the delivery of Shares will no longer cause such violation. The
Company will make all reasonable efforts to meet the requirements of any such state or federal law
or securities exchange and to obtain any such consent or approval of any such governmental
authority.
P. Administrator Authority.
The Administrator will have the power to interpret the Plan and this Award Agreement and to
adopt such rules for the administration, interpretation and application of the Plan as are
consistent therewith and to interpret or revoke any such rules (including, but not limited to, the
determination of whether or not any Restricted Stock Units have vested). All actions taken and all
interpretations and determinations made by the Administrator in good faith will be final and
binding upon Participant, the Company and all other interested persons. No member of the
Administrator will be personally liable for any action, determination or interpretation made in
good faith with respect to the Plan or this Award Agreement.
Q. Electronic Delivery.
The Company may, in its sole discretion, decide to deliver any documents related to Restricted
Stock Units awarded under the Plan or future Restricted Stock Units that may be awarded under the
Plan by electronic means or 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.
R. Captions.
Captions provided herein are for convenience only and are not to serve as a basis for
interpretation or construction of this Award Agreement.
S. 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.
T. Amendment, Suspension or Termination of the Plan.
By accepting this Award, Participant expressly warrants that he or she has received an Award
of Restricted Stock Units under the Plan, and has received, read and understood a description of
the Plan. Participant understands that the Plan is discretionary in nature and may be amended,
suspended or terminated by the Company at any time.
By Participant’s signature and the signature of the Company’s representative below,
Participant and the Company agree that this Award of Restricted Stock Units is granted under and
governed by the terms and conditions of the Plan and this Award Agreement. Participant has
reviewed the Plan and this Award Agreement 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. 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. Participant further agrees to notify the Company upon any change in the residence
address indicated below.
PARTICIPANT:
|
OMNITURE, INC. | |
Signature
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By | |
Print Name
|
Title | |
Residence Address: |
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