OMNITURE, INC.
Exhibit 99.13
2008 EQUITY INCENTIVE PLAN
Unless otherwise defined herein, the terms defined in the Omniture, Inc. 2008 Equity Incentive
Plan (the “Plan”) will have the same defined meanings in this Award Agreement.
| I. | NOTICE OF STOCK OPTION GRANT |
Participant’s Name:
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Participant’s Address:
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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:
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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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$ | ||
Total Number of Shares Granted:
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Total Exercise Price:
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$ | ||
Type of Option:
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Nonstatutory Stock Option (NSO) | ||
Term/Expiration Date:
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Vesting Schedule:
Subject to accelerated vesting as set forth below or in the Plan, this Option may be
exercised, in whole or in part, in accordance with the following four (4) year vesting schedule:
[Twenty-five percent (25%) of the Shares subject to the Option will vest on the one (1)
year anniversary of the Vesting Commencement Date, and 1/48 of the Shares subject to the
Option will vest each month thereafter on the same day of the month as the Vesting
Commencement Date (and if there is no corresponding day, on the last day of such month),
provided that the Participant continues to be a Service Provider through such vesting
dates.]
Termination Period:
This Option shall be exercisable for three (3) months after Participant ceases to be a Service
Provider, 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 ceases to be Service Provider.
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 13(c) of the Plan.
| II. | AGREEMENT |
X. Xxxxx of Option.
The Administrator hereby grants to individual named in the Notice of Grant attached as Part I
of this Agreement (the “Participant”) an option (the “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, which is incorporated
herein by reference. Subject to Section 18(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. 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.
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. 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. Assuming such compliance, for income tax purposes the
Exercised Shares will be considered transferred to Participant on the date the Option is exercised
with respect to such Exercised Shares.
C. Method of Payment.
Payment of the aggregate Exercise Price will be by any of the following, or a combination
thereof:
1. cash;
2. check;
3. consideration received by the Company under a formal cashless exercise program adopted by
the Company in connection with the Plan; or
4. surrender of other Shares which, (a) in the case of Shares acquired from the Company,
either directly or indirectly, have been owned by the Participant and not subject to a substantial
risk of forfeiture for more than six (6) months on the date of surrender, and (b) have a Fair
Market Value on the date of surrender equal to the aggregate Exercise Price of the Exercised
Shares.
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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.
F. Tax Obligations.
1. Withholding Taxes. Participant agrees to make appropriate arrangements with the
Company (or the Parent or Subsidiary employing or retaining Participant) for the satisfaction of
all Federal, state, and local income and employment tax withholding requirements applicable to the
Option exercise. Participant acknowledges and agrees that the Company may refuse to honor the
exercise and refuse to deliver Shares if such withholding amounts are not delivered at the time of
exercise.
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 they are 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 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 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.
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H. NO GUARANTEE OF CONTINUED SERVICE.
PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO THE VESTING
SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS AN EMPLOYEE, CONSULTANT OR 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 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 DIRECTOR AT
ANY TIME, WITH OR WITHOUT CAUSE.
I. 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 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.
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J. 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.
K. 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.
[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. 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:
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OMNITURE, INC. | |||||
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EXHIBIT A
2008 EQUITY INCENTIVE PLAN
EXERCISE NOTICE
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 2008 Equity Incentive Plan
(the “Plan”) and the Award Agreement dated ____________, ______ (the “Award Agreement”).
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 required withholding taxes to be paid in connection with the exercise
of the Option.
3. Representations of Purchaser. Purchaser acknowledges that Xxxxxxxxx has received,
read and understood the Plan and the Award Agreement 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 13 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 are incorporated
herein by reference. This Agreement, the Plan and the 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 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 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 10th Circuit, and no other courts, where this
Option grant is made and/or to be performed.
Submitted by:
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Accepted by: | |||||
PURCHASER:
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OMNITURE, INC. | |||||
Address:
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Address: | |||||
| Omniture, Inc. 000 Xxxx Xxxxxxxxxx Xxxxxx Xxxx, Xxxx 00000 Attention: Stock Plan Administration |
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