Change In Control

EXHIBIT 10.15

JOSHUA G. JAMES AMENDED & RESTATED EMPLOYMENT AGREEMENT

     This Employment Agreement (the “Agreement”) was originally entered into as of April 21, 2004 (the “Effective Date”) between Omniture, Inc., a Delaware corporation with its principal offices located at 550 East Timpanogos Circle, Orem, UT 84097, (the “Company”), and Joshua G. James, a resident of Utah (the “Employee”), and is hereby amended and restated in its entirety effective June 7, 2006.

     In consideration of the promises and the terms and conditions set forth in this Agreement, the parties agree as follows:

     1. Position. During the term of this Agreement, Company will employ Employee, and Employee will serve Company in the capacity of Chief Executive Officer, and will be appointed as a member of Company’s Board of-Directors (the “Board”). Employee will report directly to the Board.

     2. Duties. Employee will have full responsibility for managing the Company, including responsibility for firing and hiring employees of the Company, will report only to the Board, and have powers and authority shall be superior to those of any officer or employee of the Company; provided, however, that the Company shall not, without Employee’s express written consent, require Employee to be based anywhere other than in Utah County, Utah, except for required travel on the Company’s business to an extent substantially consistent with travel required of persons who hold similar positions or have similar duties with the Company.

     3. Exclusive Service. Employee will devote substantially all his working time and efforts to the business and affairs of the Company. The foregoing shall not, however, preclude Employee (a) from engaging in appropriate educational, civic, charitable or religious activities, (b) from devoting a reasonable amount of time to private investments, (c) from serving on the boards of directors of two (2) other entities; provided that Employee may serve on additional boards of directors upon approval of the Board, or (d) from providing incidental assistance to family members on matters of family business, so long as the foregoing activities and service do not conflict with Employee’s responsibilities to the Company.

     4. Termination of Agreement. This Agreement shall terminate on the date on which all obligations hereunder of the parties hereto have been satisfied.

     5. Compensation and Benefits.

          5.1 Base Salary. The Company agrees to pay Employee a minimum annual salary of $235,000, or in the event of any portion of a year, a pro rata amount of such annual salary. Employee’s base salary shall be reviewed by the Board or the Compensation Committee of the Board for possible increases prior to the start of each fiscal year, effective at the beginning of such fiscal

 


 

year. Employee’s salary will be payable as earned in accordance with Company’s customary payroll practice.

          5.2 Cash Bonus. Employee will have the potential to receive an annual cash bonus of at least $150,000 subject to the terms of a Bonus Plan, to be established within sixty (60) days after the Effective Date or as otherwise determined by the Board and annually thereafter by the Board, as amended from time to time.

          5.3 Additional Benefits. Employee will be eligible to participate in Company’s employee benefit plans of general application, including without limitation pension and profit-sharing plans, deferred compensation, supplemental retirement or excess-benefit plans, stock option, incentive or other bonus plans, life, health, disability, accident and dental insurance programs, 401(k) plan, paid vacations and sabbatical leave plans, and similar plans or programs, in accordance with the rules established for individual participation in any such plan. The Company shall furnish Employee with office space, stenographic assistance and such other facilities and services as shall be suitable to Employee’s position and adequate for the performance of his duties. Employee shall be entitled each year to four (4) weeks leave for vacation at full pay, provided, that at the end of each year, Employee may accrue and carry over to the next succeeding year a maximum of four (4) weeks of unused vacation. Employee shall also be entitled to reasonable holidays and illness days with full pay in accordance with the Company’s policy from time to time in effect.

          5.4 Expenses. The Company will reimburse Employee for all reasonable and necessary expenses incurred by Employee in connection with the Company’s business, provided that such expenses are in accordance with applicable policy set by the Board from time to time and are properly documented and accounted for in accordance with the policy of the Company and with the requirements of the Internal Revenue Service.

          5.5 Acceleration of Vesting. Upon a Change in Control (as defined below) all of Employee’s options to purchase the Company’s Common Stock shall, as of the date of such Change in Control, be immediately exercisable in full and shall remain exercisable for five (5) years following the date of termination or ten (10) years following the date of grant, whichever is earlier, and all shares of the Company’s Common Stock owned by Employee shall immediately be released from any and all vesting restrictions; “Change in Control” Defined. A “Change in Control” means the occurrence of any of the following events: (i) any sale or exchange of the capital stock by the shareholders of the Company in one transaction or series of related transactions where more than 50% of the outstanding voting power of the Company is acquired by a person or entity or group of related persons or entities; or (ii) any reorganization, consolidation or merger of the Company where the outstanding voting securities of the Company immediately before the transaction represent or are converted into less than fifty percent 50% of the outstanding voting power of the surviving entity (or its parent corporation) immediately after the transaction; or (iii) the consummation of any transaction or series of related transactions that results in the sale of all or substantially all of the assets of the Company; or (iv) any “person” or “group” (as defined in the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) becoming the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) directly or indirectly of securities representing more than fifty percent (50%) of the voting power of the Company then outstanding.

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     6. Proprietary Rights. Employee hereby affirms his Employee Invention Assignment and Confidentiality Agreement with the Company previously entered into with the Company (the “Proprietary Rights Agreement”).

     7. Termination.

          7.1 Events of Termination. Employee’s employment with the Company shall terminate upon any one of the following:

               (a) thirty (30) days after the effective date of a written notice sent to Employee stating the Company’s determination made in good faith that it is terminating Employee for “Cause” as defined under Section 7.2 below (“Termination for Cause”), provided, that the Company will give Employee written notice of such failure; or

               (b) thirty (30) days after the effective date of a written notice sent to Employee stating the Company’s determination made in good faith that, due to a mental or physical incapacity, Employee has been unable to perform his duties under this Agreement for a period of not less than six (6) consecutive months or 180 days in the aggregate in any 12-month period unless Employee has been on a leave approved by the Board (“Termination for Disability”); or

               (c) Employee’s death (“Termination Upon Death”); or

               (d) thirty (30) days after the effective date of a written notice sent to the Company stating Employee’s determination made in good faith of “Constructive Termination” by the Company, as defined under Section 7.3 below, if the Company has not cured the event constituting a Constructive Termination during such thirty (30) day period (“Constructive Termination”); or

               (e) thirty (30) days after the effective date of a notice sent to Employee stating that the Company is terminating his employment, without cause, which notice can be given by the Company at any time after the Effective Date at the Company’s sole discretion, for any reason or for no reason (“Termination Without Cause”); or

               (f) the effective date of a notice sent to the Company from Employee stating that Employee is electing to terminate his employment with the Company (“Voluntary Termination”).

          7.2 “Cause” Defined. For purposes of this Agreement, “cause” for Employee’s termination means (a) any willful act or acts of fraud, embezzlement or conviction of or guilty plea to a felony, in each case intended to result in (i) material gain or personal enrichment of Employee at the expense of the Company or (ii) material harm to the Company; or (b) unauthorized willful use or disclosure of the Company’s confidential information or trade secrets that Employee intends to cause, and causes, material harm to the Company. No act, or failure to act, by Employee shall be considered “willful” if done, or omitted to be done, by him in good faith and in the reasonable belief that his act or omission was in the best interest of the Company or required by applicable law.

          7.3 “Constructive Termination” Defined. “Constructive Termination” shall mean:

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               (a) a reduction in Employee’s salary or benefits not agreed to by Employee; or

               (b) a material change in Employee’s responsibilities not agreed to by Employee; or

               (c) the Company’s failure to comply in any material respect with any material term of this Agreement; or

               (d) a requirement that Employee relocate to an office that would increase Employee’s one-way commute distance by more than thirty-five (35) miles.

     8. Effect of Termination.

          8.1 Termination for Cause or Voluntary Termination. In the event of any termination of Employee’s employment pursuant to Section 7.l(a) or Section 7.1(f), the Company shall immediately pay to Employee the compensation and benefits otherwise payable to Employee under Section 5 through the date of termination. Employee’s rights under the Company’s benefit plans of general application shall be determined under the provisions of those plans.

          8.2 Termination for Disability. In the event of termination of employment pursuant to Section 7.1(b):

               (a) the Company shall immediately pay to Employee the compensation and benefits otherwise payable to Employee under Section 5 through the date of termination,

               (b) for six (6) months (plus an additional nine (9) months if Employee signs and delivers to the Company the Release as set forth in Section 8.6 below, for a total of fifteen (15) months) after the termination of Employee’s employment, the Company shall continue to pay Employee (A) his salary under Section 5.2 above at Employee’s then-current salary, less applicable withholding taxes, payable on the Company’s normal payroll dates during that period, and (B) shall continue his benefits under Section 5.4 above or equivalents thereof, and

               (c) Employee shall receive other severance and disability payments as provided in the Company’s standard benefit plans.

          8.3 Termination Upon Death. In the event of termination of employment pursuant to Section 7.1(c), all obligations of the Company and Employee shall cease, except the Company shall immediately pay to Employee (or to Employee’s estate) the compensation and benefits (or equivalents thereof) otherwise payable to Employee under Section 5 through the date twelve (12) months following the termination upon death.

          8.4 Constructive Termination or Termination Without Cause. In the event of any termination of this Agreement pursuant to Section 7.1(d) or Section 7.l(e),

               (a) the Company shall immediately pay to Employee the compensation and benefits otherwise payable to Employee under Section 5 through the date of termination, and

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               (b) for six (6) months (plus an additional nine (9) months if Employee signs and delivers to the Company the Release as set forth in Section 8.6 below, for a total of fifteen (15) months) after the termination of Employee’s employment, the Company shall continue to pay Employee (A) his salary under Section 5.2 above at Employee’s then-current salary, less applicable withholding taxes, payable on the Company’s normal payroll dates during that period, and (B) shall continue his benefits under Section 5.4 above or equivalents thereof, and

               (c) all of Employee’s options to purchase the Company’s Common Stock shall, as of the date of employment termination, be immediately exercisable in full and shall remain exercisable for five (5) years following the date of termination or ten (10) years following the date of grant, whichever is earlier, and all shares of the Company’s Common Stock owned by Employee shall immediately be released from any and all vesting restrictions.

          8.5 Section 280G. To the extent the total amount of the benefits available to Employee under clauses (a) and (b) of Section 8.4 would constitute a “parachute payment” as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) then the Company shall pay to Employee at the time of termination an additional amount such that the net amount retained by Employee, after deduction of the excise tax imposed by Section 4999 of the Code and any federal, state and local income tax and excise tax imposed on such additional amount, shall be equal to the amount payable to the Employee under such clauses (a) and (b) of Section 8.4 as originally determined prior to the deduction of the excise tax.

          8.6 General Release. Employee may elect to increase the benefits provided under Section 8.2(b) and Section 8.4(b) by delivering to the Company a general release of all claims including substantially the following terms (“Release”).

               (a) Employee would release the Company, its subsidiaries, officers, directors, employees, agents and stockholders and each of their successors, representatives and assigns from all claims and demands of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, and for any and all damages actual and consequential, past, present and future, and all other forms of relief arising out of Employee’s employment with the Company, this Agreement and any other relationship between Employee and the Company up to and as of the date of termination; provided, however, that (i) nothing in the Release would release the Company from its obligations to indemnify, defend and hold harmless Employee as an agent of the Company pursuant to the Company’s Certificate of Incorporation and Bylaws, any indemnification agreement, any insurance policy pertaining to liability of officers and directors and applicable law; and (ii) nothing in the Release would relieve the Company from its obligations under stock option or stock purchase agreements between Employee and the Company; and

               (b) Employee’s obligations pursuant to clause (a) above would be subject to the Company’s release of Employee, his agents, heirs, executors, representatives and permitted assigns from all claims and demands of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, and for any and all damages actual and consequential, past, present and future, and all other forms of relief arising out of Employee’s employment with the Company, this Agreement and any other relationship between Employee and the Company up to and

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as of the date of termination; provided, however, that nothing would release Employee from his obligations pursuant to the Proprietary Rights Agreement.

               If Employee signs and delivers the Release, but the Company does not sign and deliver the signed release including substantially the terms set forth in clause (b) above within fifteen (15) days following such delivery by Employee, the Release will be null and void and the applicable period set forth in Section 8.2(b) and Section 8.4(b) will be extended as if a Release had been signed and delivered by Employee.

     9. Miscellaneous.

          9.1 Arbitration. Employee and Company shall submit to mandatory and exclusive binding arbitration of any controversy or claim arising out of, or relating to, this Agreement or any breach hereof, provided, however, that the parties retain their right to, and shall not be prohibited, limited or in any other way restricted from, seeking or obtaining equitable relief from a court having jurisdiction over the parties. Such arbitration shall be governed by the Federal Arbitration Act and conducted through the American Arbitration Association in the State of Utah, Utah County, before a single neutral arbitrator, in accordance with the National Rules for the Resolution of Employment Disputes of the American Arbitration Association in effect at that time. The parties may conduct only essential discovery prior to the hearing, as defined by the AAA arbitrator. The arbitrator shall issue a written decision which contains the essential findings and conclusions on which the decision is based. The Employee shall bear only those costs of arbitration he or she would otherwise bear had he or she brought a claim covered by this Agreement in court. Judgment upon the determination or award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Except as specifically otherwise provided in this Agreement, arbitration will be the sole and exclusive remedy of the parties for any dispute arising out of this Agreement.

          9.2 Severability. If any provision of this Agreement shall be found by any arbitrator or court of competent jurisdiction to be invalid or unenforceable, then the parties hereby waive such provision to the extent that it is found to be invalid or unenforceable and to the extent that to do so would not deprive one of the parties of the substantial benefit of its bargain. Such provision shall, to the extent allowable by law and the preceding sentence, be modified by such arbitrator or court so that it becomes enforceable and, as modified, shall be enforced as any other provision hereof, all the other provisions continuing in full force and effect.

          9.3 No Waiver. The failure by either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way affect the right to require such performance or compliance at any time thereafter. The waiver by either party of a breach of any provision hereof shall not be taken or held to be a waiver of any preceding or succeeding breach of such provision or as a waiver of the provision itself. No waiver of any kind shall be effective or binding, unless it is in writing and is signed by the party against whom such waiver is sought to be enforced.

          9.4 Assignment. This Agreement and all rights hereunder are personal to Employee and may not be transferred or assigned by Employee at any time. The Company may assign its rights, together with its obligations hereunder, to any parent, subsidiary, affiliate or

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successor, or in connection with any sale, transfer or other disposition of all or substantially all of its business and assets, provided, however, that any such assignee assumes the Company’s obligations hereunder.

          9.5 Withholding. All sums payable to Employee hereunder shall be reduced by all federal, state, local and other withholding and similar taxes and payments required by applicable law.

          9.6 Entire Agreement. This Agreement (and the exhibits hereto), the Employee’s equity compensation agreements, the Proprietary Rights Agreement and the Change of Control Agreement by and between the Company and Employee constitute the entire and only agreement and understanding between the parties relating to employment of Employee with Company and such agreements supersede and cancel any and all other previous contracts, arrangements or understandings with respect to Employee’s employment.

          9.7 Amendment. This Agreement may be amended, modified, superseded, cancelled, renewed or extended only by an agreement in writing executed by both parties hereto.

          9.8 Notices. All notices and other communications required or permitted under this Agreement shall be in writing and hand delivered, sent by registered first-class mail, postage pre-paid, or sent by nationally recognized express courier service. Such notices and other communications shall be effective upon receipt if hand delivered five (5) days after mailing if sent by mail, and one (1) day after dispatch if sent by express courier, to the following addresses, or such other addresses as any party shall notify the other parties:

 

 

 

If to the Company:

 

Omniture, Inc.

 

 

550 East Timpanogos Circle

 

 

Orem, UT 84097

 

 

 

Attention:

 

Corporate Secretary

 

 

 

If to Employee:

 

Joshua G. James

 

 

At the last residential address known to the Company

          9.9 Binding Nature. This Agreement shall be binding upon, and inure to the benefit of, the successors and personal representatives of the respective parties hereto.

          9.10 Headings. The headings contained in this Agreement are for reference purposes only and shall in no way affect the meaning or interpretation of this Agreement. In this Agreement, the singular includes the plural, the plural included the singular, the masculine gender includes both male and female referents, and the word “or” is used in the inclusive sense.

          9.11 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which, taken together, constitute one and the same agreement.

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          9.12 Governing Law. This Agreement and the rights and obligations of the parties hereto shall be construed in accordance with the laws of the State of Utah, without giving effect to the principles of conflict of laws.

          9.13 Attorneys’ Fees. In the event of any claim, demand or suit arising out of or with respect to this Agreement, the prevailing party shall be entitled to reasonable costs and attorneys’ fees, including any such costs and fees upon appeal.

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     IN WITNESS WHEREOF, the Company and Employee have executed this Agreement as of the date first above written,

 

 

 

 

 

OMNITURE, INC.

 

JOSHUA G. JAMES

 

 

 

 

 

 

 

By: /s/ Shawn J. Lindquist

 

/s/ Joshua G. James

 

 

 

 

 

 

 

 

 

 

 

 

Name: Shawn J. Lindquist

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Title: Chief Legal Officer and Senior Vice President

 

 

 

 

 


 

OMNITURE, INC.

AMENDMENT TO
JOSHUA G. JAMES AMENDED & RESTATED EMPLOYMENT AGREEMENT

     This amendment (the “Amendment”) is made by and between Joshua G. James (“Employee”) and Omniture, Inc. (the “Company”, and together with Employee, the “Parties”) on December 19, 2008.

     WHEREAS, the Parties entered into an Amended and Restated Employment Agreement dated June 7, 2006 (the “Agreement”);

     WHEREAS, the Company and Employee desire to amend certain provisions of the Agreement to come into documentary compliance with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and the final regulations and official guidance promulgated thereunder (together, “Section 409A”).

     NOW, THEREFORE, for good and valuable consideration, Employee and the Company agree that the Agreement is hereby amended as follows.

     1. Cash Bonus. The following will be added to the end of Section 5.2 of the Agreement:

In no event will the cash bonus be paid later than March 15 following the calendar year in which such bonus is earned.”

     2. Constructive Termination. Section 7.3 of the Agreement is amended and restated as follows:

7.3 “Constructive Termination” Defined. “Constructive Termination” shall mean Employee’s resignation within ninety (90) days following the expiration of any Company cure period (discussed below) following the occurrence of one or more of the following, without Employee’s express written consent:

     (a) the assignment to Employee of any duties, or the reduction of Employee’s duties, either of which results in a material diminution of Employee’s authority, duties, or responsibilities with the Company in effect immediately prior to such assignment, or the removal of Employee from such position and responsibilities;

     (b) a material reduction of Employee’s base compensation (in other words, a material reduction in Employee’s salary or benefits) as in effect immediately prior to such reduction; or

     (c) a material change in the geographic location at which Employee must perform services (in other words, Employee’s relocation to a facility or an office location more than a 35-mile radius from Employee’s then present location); or

 


 

     (d) any action or inaction that constitutes a material breach by the Company of this Agreement or any other agreement Employee enters into with the Company relating to Employee’s service relationship with the Company (including any compensatory arrangements) and the parties hereby agree and acknowledge that a failure of any successor to assume in writing any obligations arising out of this Agreement would constitute a material breach of this Agreement.

Notwithstanding the foregoing, Employee agrees not to resign for Constructive Termination without first providing the Company with written notice of the acts or omissions constituting the grounds for “Constructive Termination” within ninety (90) days of the initial existence of the grounds for “Constructive Termination” and a reasonable cure period of thirty (30) days following the date of such notice.”

     3. Section 280G. The following is added to the end of Section 8.5 of the Agreement:

Such tax gross up payments, if any, will be paid be no later than the end of the calendar year immediately following the calendar year in which Employee remits the related taxes.”

     4. General Release. The first sentence of Section 8.6 is amended and restated as follows:

Employee may elect to increase the benefits provided under Section 8.2(b) and Section 8.4(b) by signing and not revoking a separation agreement and release of claims in a form reasonably satisfactory to the Company (“Release”) and provided that such Release becomes effective and irrevocable no later than sixty (60) days following the termination date (such deadline, the “Release Deadline”). If the Release does not become effective by the Release Deadline, Employee will forfeit any rights to the increased severance payments or benefits under Section 8.2(b) and Section 8.4(b) of this Agreement. In no event will the increased benefits provided under Section 8.2(b) and Section 8.4(b) be paid or provided until the Release becomes effective and irrevocable. The Release will include substantially the following terms:”

     5. Section 409A. The following paragraphs are added as Section 8.7 of the Agreement:

8.7 Section 409A.

     (a) Notwithstanding anything to the contrary in this Agreement, no severance pay or benefits to be paid or provided to Employee, if any, pursuant to this Agreement, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and the final regulations and any guidance promulgated thereunder (“Section 409A”) (together, the “Deferred Compensation Separation Benefits”) will be paid or otherwise provided until Employee has a “separation from service” within the meaning of Section 409A.

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     (b) Any severance payments or benefits under this Agreement that would be considered Deferred Compensation Severance Benefits will be paid on, or, in the case of installments, will not commence until, the sixtieth (60th) day following Employee’s separation from service, or, if later, such time as required by Section 8.7(c) below. Any installment payments that would have been made to Employee during the sixty (60) day period immediately following Employee’s separation from service but for the preceding sentence will be paid to Employee on the sixtieth (60th) day following Employee’s separation from service and the remaining payments shall be made as provided in this Agreement.

     (c) Notwithstanding anything to the contrary in this Agreement, if Employee is a “specified employee” within the meaning of Section 409A at the time of Employee’s termination (other than due to death), then the Deferred Compensation Separation Benefits that are payable within the first six (6) months following Employee’s separation from service, will become payable on the first payroll date that occurs on or after the date six (6) months and one (1) day following the date of Employee’s separation from service. All subsequent Deferred Compensation Separation Benefits, if any, will be payable in accordance with the payment schedule applicable to each payment or benefit. Notwithstanding anything herein to the contrary, if Employee dies following Employee’s separation from service, but prior to the six (6) month anniversary of the separation from service, then any payments delayed in accordance with this paragraph will be payable in a lump sum as soon as administratively practicable after the date of Employee’s death and all other Deferred Compensation Separation Benefits will be payable in accordance with the payment schedule applicable to each payment or benefit. Each payment and benefit payable under this Agreement is intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations.

     (d) Any amount paid under this Agreement that satisfies the requirements of the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations will not constitute Deferred Compensation Separation Benefits for purposes of Section 8.7(a) above.

     (e) Any amount paid under this Agreement that qualifies as a payment made as a result of an involuntary separation from service pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury Regulations that does not exceed the Section 409A Limit will not constitute Deferred Compensation Separation Benefits for purposes of Section 8.7(a) above. For purposes of this Agreement, “Section 409A Limit” will mean the lesser of two (2) times: (i) Employee’s annualized compensation based upon the annual rate of pay paid to Employee during the Company’s taxable year preceding the Company’s taxable year of Employee’s termination of employment as determined under Treasury Regulation 1.409A-1(b)(9)(iii)(A)(1) and any Internal Revenue Service guidance issued with respect thereto; or (ii) the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which Employee’s employment is terminated.

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     (f) The foregoing provisions are intended to comply with the requirements of Section 409A so that none of the severance payments and benefits to be provided hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. The Company and Employee agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Employee under Section 409A.”

     6. Full Force and Effect. To the extent not expressly amended hereby, the Agreement shall remain in full force and effect.

     7. Entire Agreement. This Amendment and the Agreement constitute the full and entire understanding and agreement between the Parties with regard to the subjects hereof and thereof. This Amendment may be amended at any time only by mutual written agreement of the Parties.

     8. Counterparts. This Amendment may be executed in counterparts, all of which together shall constitute one instrument, and each of which may be executed by less than all of the parties to this Amendment.

     9. Governing Law. This Amendment will be governed by the laws of the State of Utah (with the exception of its conflict of laws provisions).

     IN WITNESS WHEREOF, each of the Parties has executed this Amendment, in the case of the Company by its duly authorized officer, as of the date set forth above.

 

 

 

 

 

 

 

 

 

OMNITURE, INC.

 

 

 

EMPLOYEE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

/s/ Shawn Lindquist

 

 

 

/s/ Joshua G. James

 

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

 

Shawn Lindquist

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Title:

 

Chief Legal Officer

 

 

 

 

 

 

 

 

 

 

 

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EX-10.1 2 a09-26579_2ex10d1.htm EX-10.1

Exhibit 10.1

 

OMNITURE, INC.

 

AMENDMENT TO JOSHUA G. JAMES

CHANGE OF CONTROL AGREEMENT AND EMPLOYMENT AGREEMENT

 

This amendment (the “Amendment”) is made by and between Joshua G. James (“Employee”) and Omniture, Inc. (the “Company”, and together with Employee, the “Parties”) on September 21, 2009, and will be effective as of immediately prior to the Acceptance Date (as this term is defined in the Merger Agreement (as hereinafter defined)).  For the avoidance of doubt, if the Acceptance Date does not occur within 12 months following September 15, 2009, and the Merger Agreement has been terminated in accordance with Section 9.1 of such agreement, this Amendment will not become effective under any circumstances unless the Parties agree otherwise.

 

WHEREAS, the Parties previously entered into an amended and restated employment agreement dated June 7, 2006, as amended on December 19, 2008 (the “Employment Agreement”);

 

WHEREAS, the Parties previously entered into a Change of Control Agreement dated June 7, 2006, as amended December 19, 2008 (the “Change of Control Agreement”);

 

WHEREAS, the Company has entered into that certain Agreement and Plan of Merger by and among the Company, Adobe Systems Incorporated, a Delaware corporation (“Adobe”), and Snowbird Acquisition Corporation, a Delaware corporation and wholly owned subsidiary of the Company (the “Merger Agreement”) pursuant to which the Company will become a wholly owned subsidiary of Adobe (the “Merger”);

 

WHEREAS, in connection with the Merger, Adobe desires to employ Employee to provide personal services to Adobe following the Closing Date (as this term is defined in the Merger Agreement), and has entered into an employment agreement with Employee as of September 15, 2009, the operating provisions of which will not become effective until the Closing Date (the “Adobe Agreement”);

 

WHEREAS, in accordance with the Adobe Agreement, Employee has agreed to waive a portion of the vesting acceleration to which Employee would otherwise be entitled in accordance with Section 5.5 of the Employment Agreement and Section 4(a) of the Change of Control Agreement (the “Waiver”); and

 

WHEREAS, the Company and Employee desire to amend the Employment Agreement and the Change of Control Agreement to reflect the Waiver and to provide for appropriate vesting terms in the event that the Closing Date does not occur.

 

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NOW, THEREFORE, for good and valuable consideration, Employee and the Company agree that the Employment Agreement and the Change of Control Agreement are hereby amended as follows.

 

1.             Acceleration of Vesting.  Section 5.5 of the Employment Agreement is amended to add the following:

 

“Notwithstanding the foregoing or anything herein to the contrary, upon the Acceptance Date of the Offer (as such terms are defined in the Agreement and Plan of Merger entered into by and between the Company, Adobe Systems Incorporated and Snowbird Acquisition Corporation as of September 15, 2009 (the “Merger Agreement”)), each of Employee’s outstanding, unvested options to purchase the Company’s Common Stock will accelerate and be immediately exercisable in full with respect to only seventy-five percent (75%) of the unvested shares of Company Common Stock subject thereto as of the Acceptance Date.  The remaining twenty-five percent (25%) of Employee’s outstanding, unvested options to purchase the Company’s Common Stock will remain unvested as of the Acceptance Date (the “Unvested Options”).  If the Closing Date occurs (as such term is defined in the Merger Agreement) prior to the 12-month anniversary of the Acceptance Date, the vesting of the Unvested Options will be determined in accordance with the terms of the employment agreement entered into by and between Adobe Systems Incorporated and Employee as of September 15, 2009.  If the Closing Date does not occur prior to the 12-month anniversary of the Acceptance Date, the Unvested Options shall vest in full upon the 12-month anniversary of the Acceptance Date, subject to Employee’s continuous service with the Company (or an affiliate thereof) through such date.  In the event that Employee terminates employment with the Company (or an affiliate thereof), other than pursuant to a termination by the Company for Cause (as defined in the Change of Control Agreement entered into by and between the Company and Employee as of June 7, 2006, as amended December 19, 2008, and further amended September 21, 2009 (the “Change of Control Agreement”)) or a resignation by Employee for other than Good Reason (as defined in the Change of Control Agreement), prior to such twelve (12) month anniversary of the Acceptance Date, the Unvested Options shall immediately vest and become fully exercisable.  In the event the Company terminates Employee’s employment for Cause or Employee resigns for other than Good Reason, in each case, prior to the 12-month anniversary of the Acceptance Date, the Unvested Options shall be immediately forfeited in exchange for no consideration.”

 

2.             Equity Compensation.  Section 4(a) of the Change of Control Agreement is amended to add the following:

 

“Notwithstanding the foregoing or anything herein to the contrary, upon the Acceptance Date of the Offer (as such terms are defined in the Agreement and Plan of Merger entered into by and between the Company, Adobe Systems Incorporated and Snowbird Acquisition Corporation as of September 15, 2009 (the “Merger Agreement”)), the vesting of each of Employee’s outstanding, unvested equity compensation awards will

 

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accelerate and, to the extent applicable, be immediately exercisable in full with respect to only seventy-five percent (75%) of the unvested shares of Company Common Stock subject thereto as of the Acceptance Date.  The remaining twenty-five percent (25%) of Employee’s outstanding, unvested equity compensation awards will remain unvested as of the Acceptance Date (the “Unvested Awards”).  If the Closing Date occurs (as such term is defined in the Merger Agreement) prior to the 12-month anniversary of the Acceptance Date, the vesting of the Unvested Awards will be determined in accordance with the terms of the employment agreement entered into by and between Adobe Systems Incorporated and Employee as of September 15, 2009.  If the Closing Date does not occur prior to the 12-month anniversary of the Acceptance Date, the Unvested Awards shall vest in full upon the 12-month anniversary of the Acceptance Date, subject to Employee’s continuous service with the Company (or an affiliate thereof) through such date.  In the event that Employee terminates employment with the Company (or an affiliate thereof), other than pursuant to a termination by the Company for Cause or a resignation by Employee for other than Good Reason, prior to such 12-month anniversary of the Acceptance Date, the Unvested Awards shall immediately vest and, to the extent applicable, become fully exercisable.  In the event the Company terminates Employee’s employment for Cause or Employee resigns for other than Good Reason, in each case, prior to the 12-month anniversary of the Acceptance Date, the Unvested Awards shall be immediately forfeited in exchange for no consideration.”

 

3.             Full Force and Effect.  To the extent not expressly amended hereby, the Employment Agreement and Change of Control Agreement shall remain in full force and effect (subject to, effective as of the Closing Date, the terms and conditions of the Adobe Agreement).

 

4.             Entire Agreement.  This Amendment, the Employment Agreement and the Change of Control Agreement constitute the full and entire understanding and agreement between the Parties with regard to the subjects hereof and thereof.  This Amendment may be amended at any time only by mutual written agreement of the Parties.

 

5.             Counterparts.  This Amendment may be executed in counterparts, all of which together shall constitute one instrument, and each of which may be executed by less than all of the parties to this Amendment.

 

6.             Governing Law.  This Amendment will be governed by the laws of the State of Utah (with the exception of its conflict of laws provisions).

 

[signature page follows]

 

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IN WITNESS WHEREOF, each of the Parties has executed this Amendment, in the case of the Company by its duly authorized officer, as of the date set forth above.

 

 

OMNITURE, INC.

 

EMPLOYEE

 

 

 

 

 

 

By:

/s/ Shawn J. Lindquist

 

/s/ Joshua G. James

 

Shawn J. Lindquist

 

Joshua G. James

 

Chief Legal Officer

 

 

 

Omniture, Inc.

 

 

 

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