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-10.22 6 v51164exv10w22.htm EX-10.22

EXHIBIT 10.22

OMNITURE, INC.

CHANGE OF CONTROL AGREEMENT

     This Change of Control Agreement (the “Agreement”) is made and entered into by and between Joshua G. James (the “Employee”) and Omniture, Inc. (the “Company”), effective as of June 7, 2006 (the “Effective Date”).

RECITALS

     1.     It is expected that the Company from time to time will consider the possibility of an acquisition by another company or other change of control. The Board of Directors of the Company (the “Board”) recognizes that such consideration can be a distraction to the Employee and can cause the Employee to consider alternative employment opportunities. The Board has determined that it is in the best interests of the Company and its stockholders to assure that the Company will have the continued dedication and objectivity of the Employee, notwithstanding the possibility, threat or occurrence of a Change of Control (as defined herein) of the Company.

     2.      The Board believes that it is in the best interests of the Company and its stockholders to provide the Employee with an incentive to continue his or her employment and to motivate the Employee to maximize the value of the Company upon a Change of Control for the benefit of its stockholders.

     3.      The Board believes that it is imperative to provide the Employee with certain benefits upon a Change of Control and severance benefits upon the Employee’s termination of employment following a Change of Control. These benefits will provide the Employee with enhanced financial security and incentive and encouragement to remain with the Company notwithstanding the possibility of a Change of Control.

     4.      Certain capitalized terms used in the Agreement are defined in Section 7 below.

AGREEMENT

     NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto agree as follows:

     1.      Term of Agreement. This Agreement shall terminate upon the date that all of the obligations of the parties hereto with respect to this Agreement have been satisfied.

     2.      At-Will Employment. The Company and the Employee acknowledge that the Employee’s employment is and shall continue to be at-will, as defined under applicable law, except as may otherwise be specifically provided under the terms of any written formal employment agreement or offer letter between the Company and the Employee (an “Employment Agreement”). If the Employee’s employment terminates for any reason, including (without limitation) any termination

 


 

prior to a Change of Control, the Employee shall not be entitled to any payments, benefits, damages, awards or compensation other than as provided by this Agreement or under his or her Employment Agreement, or as may otherwise be available in accordance with the Company’s established employee plans.

     3.      Severance Benefits.

              (a)      Involuntary Termination Other than for Cause, Voluntary Termination for Good Reason or Death or Disability During the Change of Control Period. If within the period commencing three months prior to a Change of Control and ending on the later of (A) twelve (12) months following a Change of Control, or (B) one month following the latest of the originally scheduled one-year, two-year or four-year cliff vesting date on any of Employee’s Company stock options held by Employee immediately prior to a Change of Control (the “Change of Control Period”), (i) the Employee terminates his or her employment with the Company (or any parent or subsidiary of the Company) for “Good Reason” (as defined herein) or (ii) the Company (or any parent or subsidiary of the Company) terminates the Employee’s employment for other than “Cause” (as defined herein), or (iii) the Employee dies or terminates employment due to becoming Disabled (as defined herein) and the Employee, except in the case of death, signs and does not revoke a standard release of claims with the Company in a form acceptable to the Company (the “Release”), then the Employee shall receive the following severance from the Company:

                         (i)      Severance Payment. The Employee shall be entitled to receive a lump-sum severance payment (less applicable withholding taxes) equal to two hundred percent of the Employee’s annual base salary (as in effect immediately prior to (A) the Change of Control, or (B) the Employee’s termination, whichever is greater) plus two hundred percent of the Employee’s target bonus for the fiscal year in which the Change of Control or the Employee’s termination occurs, whichever is greater.

                         (ii)      Equity Compensation Acceleration. One hundred percent (100%) of the Employee’s outstanding stock options, stock appreciation rights, restricted stock units and other Company equity compensation awards (the “Equity Compensation Awards”) shall immediately vest and became exercisable. Any Company stock options and stock appreciation rights shall thereafter remain exercisable following the Employee’s employment termination for the period prescribed in the respective option and stock appreciation right agreements.

                         (iii)      Continued Employee Benefits. Company-paid health, dental, vision, and life insurance coverage at the same level of coverage as was provided to such Employee immediately prior to the Change of Control and at the same ratio of Company premium payment to Employee premium payment as was in effect immediately prior to the Change of Control (the “Company-Paid Coverage”). If such coverage included the Employee’s dependents immediately prior to the Change of Control, such dependents shall also be covered at Company expense. Company-Paid Coverage shall continue until the earlier of (i) twenty-four months from the date of termination, or (ii) the date upon which the Employee and his dependents become covered under another employer’s group health, dental, vision, long-term disability or life insurance plans that provide Employee and his dependents with comparable benefits and levels of coverage. For purposes of Title X of the Consolidated Budget Reconciliation Act of 1985 (“COBRA”), the date of

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the “qualifying event” for Employee and his or her dependents shall be the date upon which the Company-Paid Coverage terminates.

              (b)      Timing of Severance Payments. The severance payment to which Employee is entitled shall be paid by the Company to Employee in cash and in full, not later than ten (10) calendar days after the effective date of the Release. If the Employee should die before all amounts have been paid, such unpaid amounts shall be paid in a lump-sum payment (less any withholding taxes) to the Employee’s designated beneficiary, if living, or otherwise to the personal representative of the Employee’s estate.

              (c)      Voluntary Resignation; Termination for Cause. If the Employee’s employment with the Company terminates (i) voluntarily by the Employee other than for Good Reason, or (ii) for Cause by the Company, then the Employee shall not be entitled to receive severance or other benefits except for those (if any) as may then be established under the Company’s then existing severance and benefits plans and practices or pursuant to other written agreements with the Company.

              (d)      Termination Outside of Change of Control Period. In the event the Employee’s employment is terminated for any reason, either prior to the Change of Control Period or after the Change of Control Period, then the Employee shall be entitled to receive severance and any other benefits only as may then be established under the Company’s existing written severance and benefits plans and practices or pursuant to other written agreements with the Company.

             (e)      Internal Revenue Code Section 409A. Notwithstanding any other provision of this Agreement, if the Employee is a “key employee” under Code Section 409A and a delay in making any payment or providing any benefit under this Plan is required by Code Section 409A, such payments shall not be made until the end of six (6) months following the date of the Employee’s separation from service as required by Code Section 409A.

     4.      Coordination with Existing Agreements.

              (a)      Equity Compensation. With respect to equity compensation awards granted to Employee, those shall accelerate vesting 100% upon a “change of control,” as such term is defined in the employment agreement by and between Employee and the Company, amended and restated as of even date herewith (the “Employment Agreement”) and shall otherwise remain governed pursuant to the applicable terms of the Employment Agreement.

              (b)      Other Benefits. Except as provided in Section 4(a) hereof, in the event of a termination of Employee’s employment within the Change of Control Period, and with respect to the 280G excise tax gross-up provisions of Section 6 hereof, in the event any such tax is triggered, including outside of termination of Employee’s employment within the Change of Control Period, the provisions of this Agreement are intended to enhance, but not be additive, to any pre-existing written agreements between the Company and Employee. For example, if Employee’s Employment Agreement provides for a specified cash payment upon a termination without cause, and severance payments are triggered under both the Employment Agreement and this Agreement, Employee shall be entitled to the larger cash payment provided in either agreement but shall not be entitled to the

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sum of the two cash payments. The same principle applies to the other individual elements of severance provided herein (other than equity compensation award vesting), and also applies to the provisions relating to a gross-up for Code Section 280G excise taxes, including outside of termination of Executive’s employment within the Change of Control Period. Except as otherwise provided in Section 4(a) hereof and in this section 4(b), the benefits provided to Employee under this Agreement are intended to be and are exclusive and in lieu of any other rights or remedies to which the Employee or the Company may otherwise be entitled, whether at law, tort or contract, in equity, and including pursuant to the Company’s other severance plans, arrangements or practices.

     5.      Conditional Nature of Severance Payments and Benefits.

              (a)      Noncompete. Employee acknowledges that the nature of the Company’s business is such that if Employee were to become employed by, or substantially involved in, the business of a competitor of the Company during the twenty-four months following the termination of Employee’s employment with the Company, it would be very difficult for Employee not to rely on or use the Company’s trade secrets and confidential information. Thus, to avoid the inevitable disclosure of the Company’s trade secrets and confidential information, Employee agrees and acknowledges that Employee’s right to receive the severance payments and benefits set forth in Section 3(a) (to the extent Employee is otherwise entitled to such payments) shall be conditioned upon Employee not directly or indirectly engaging in (whether as an employee, consultant, agent, proprietor, principal, partner, stockholder, corporate officer, director or otherwise), nor having any ownership interest in or participating in the financing, operation, management or control of, any person, firm, corporation or business in Competition (as defined herein) with Company. Notwithstanding the foregoing, Employee may, without violating this Section 5, own, as a passive investment, shares of capital stock of a corporation or other entity that engages in Competition where the number of shares of such corporation’s capital stock that are owned by Employee represent less than three percent of the total number of shares of such entity’s capital stock outstanding. For purposes of this Agreement, Competition refers to activities that are competitive to Omniture as of the date of termination of Employee’s employment with the Company, including, but not limited to, marketing, selling, hosting, delivering, or distributing web analytics products or other online business optimization software or services, or engaging in online marketing services similar to or competitive with products or services offered by the Company as of the date of termination of Employee’s employment with the Company.

             (b)      Non-Solicitation. Until the date twenty-four months after the termination of Employee’s employment with the Company for any reason, Employee agrees and acknowledges that Employee’s right to receive the severance payments and benefits set forth in Section 3(a) (to the extent Employee is otherwise entitled to such payments) shall be conditioned upon Employee neither directly nor indirectly soliciting, inducing, recruiting or encouraging an employee to leave his or her employment either for Employee or for any other entity or person with which or whom Employee has a business relationship.

              (c)      Understanding of Covenants. Employee represents that he (i) is familiar with the foregoing covenants not to compete and not to solicit, and (ii) is fully aware of his obligations hereunder, including, without limitation, the reasonableness of the length of time, scope and geographic coverage of these covenants. The Company acknowledges and agrees that Employee’s

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covenants not to compete and not to solicit under Sections 5(a) and 5(b) above are conditioned upon Employee’s receipt of the severance payments and benefits set forth in Section 3(a) above.

             (d)      Remedy for Breach. Upon any breach of this section by Employee, all severance payments and benefits pursuant to this Agreement shall immediately cease and any stock options or stock appreciation rights then held by Employee shall immediately terminate and be without further force and effect, Employee shall be required to reimburse the Company any lump-sum severance payment previously paid under Section 3(a)(i) and the value of any welfare plan reimbursements previously paid under Section 3(a)(iii) hereunder and that shall be the sole remedy available to the Company for such breach.

     6.      Golden Parachute Excise Tax.

              (a)      Parachute Payments of Less than 3.6 x Base Amount. In the event that the benefits provided for in this agreement or otherwise payable to Employee, including vesting acceleration upon a change of control pursuant to Employee’s employment agreement with the Company (a) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), (b) would be subject to the excise tax imposed by Section 4999 of the Code, and (c) the aggregate value of such parachute payments, as determined in accordance with Section 280G of the Code and the proposed Treasury Regulations thereunder (or the final Treasury Regulations, if they have then been adopted) is less than the product obtained by multiplying three and six-tenths by Employee’s “base amount” within the meaning of Code Section 280G(b)(3), then such benefits shall be reduced to the extent necessary (but only to that extent) so that no portion of such benefits will be subject to excise tax under Section 4999 of the Code.

              (b)      Parachute Payments Equal to or Greater than 3.6 x Base Amount. In the event that the benefits provided for in this agreement or otherwise payable to Employee, including vesting acceleration upon a change of control pursuant to Employee’s employment agreement with the Company (a) constitute “parachute payments” within the meaning of Section 280G of the Code, (b) would be subject to the excise tax imposed by Section 4999 of the Code, and (c) the aggregate value of such parachute payments, as determined in accordance with Section 280G of the Code and the proposed Treasury Regulations thereunder (or the final Treasury Regulations, if they have then been adopted) is equal to or greater than the product obtained by multiplying three and six-tenths by Employee’s “base amount” within the meaning of Code Section 280G(b)(3), then (A) the benefits shall be delivered in full, and (B) the Employee shall receive (1) a payment from the Company sufficient to pay such excise tax, and (2) an additional payment from the Company sufficient to pay the federal and state income and employment taxes and additional excise taxes arising from the payments made to the Employee by the Company pursuant to this clause (B).

             (c)      280G Determinations. Unless the Company and the Employee otherwise agree in writing, the determination of Employee’s excise tax liability and the amount required to be paid or reduced under this Section 6 shall be made in writing by the Company’s independent auditors who are primarily used by the Company immediately prior to the Change of Control (the “Accountants”). For purposes of making the calculations required by this Section 6, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the

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Code. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6.

     7.      Definition of Terms. The following terms referred to in this Agreement shall have the following meanings:

              (a)      Cause. “Cause” shall mean (i) an act of personal dishonesty taken by the Employee in connection with his responsibilities as an employee and intended to result in substantial personal enrichment of the Employee, (ii) Employee being convicted of, or pleading nolo contendere to a felony, (iii) a willful act by the Employee which constitutes gross misconduct and which is injurious to the Company, (iv) following delivery to the Employee of a written demand for performance from the Company which describes the basis for the Company’s reasonable belief that the Employee has not substantially performed his duties, continued violations by the Employee of the Employee’s obligations to the Company which are demonstrably willful and deliberate on the Employee’s part.

              (b)      Change of Control. “Change of Control” means the occurrence of any of the following:

                          (i)      Any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) becomes the “beneficial owner” (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the total voting power represented by the Company’s then outstanding voting securities; or

                         (ii)      Any action or event occurring within a two-year period, as a result of which fewer than a majority of the directors are Incumbent Directors. “Incumbent Directors” shall mean directors who either (A) are directors of the Company as of the date hereof, or (B) are elected, or nominated for election, to the Board with the affirmative votes of at least a majority of the Incumbent Directors at the time of such election or nomination (but shall not include an individual whose election or nomination is in connection with an actual or threatened proxy contest relating to the election of directors to the Company); or

                          (iii)      The consummation of a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) at least fifty percent (50%) of the total voting power represented by the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation; or

                          (iv)      The consummation of the sale, lease or other disposition by the Company of all or substantially all the Company’s assets.

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             (c)      Disability. “Disability” shall mean that the Employee has been unable to perform his or her Company duties as the result of his incapacity due to physical or mental illness, and such inability, at least twenty-six (26) weeks after its commencement, is determined to be total and permanent by a physician selected by the Company or its insurers and acceptable to the Employee or the Employee’s legal representative (such Agreement as to acceptability not to be unreasonably withheld). Termination resulting from Disability may only be effected after at least thirty (30) days’ written notice by the Company of its intention to terminate the Employee’s employment. In the event that the Employee resumes the performance of substantially all of his or her duties hereunder before the termination of his or her employment becomes effective, the notice of intent to terminate shall automatically be deemed to have been revoked.

             (d)      Good Reason. “Good Reason” means without the Employee’s express written consent (i) a material reduction of the Employee’s duties, title, authority or responsibilities, relative to the Employee’s duties, title, authority or responsibilities as in effect immediately prior to such reduction, or the assignment to Employee of such reduced duties, title, authority or responsibilities, including a reduction in duties, title, authority or responsibilities solely by virtue of the Company being acquired and made part of a larger entity; (ii) a substantial reduction of the facilities and perquisites (including office space and location) available to the Employee immediately prior to such reduction; (iii) a reduction by the Company in the base salary or target bonus opportunity of the Employee as in effect immediately prior to such reduction; (iv) a material reduction by the Company in the kind or level of benefits to which the Employee was entitled immediately prior to such reduction with the result that such Employee’s overall benefits package is significantly reduced; (v) the relocation of the Employee to a facility or a location more than thirty-five (35) miles from such Employee ‘s then present location.

     8.      Successors.

              (a)      The Company’s Successors. Any successor to the Company (whether direct or indirect and whether by purchase, merger, consolidation, liquidation or otherwise) to all or substantially all of the Company’s business and/or assets shall assume the obligations under this Agreement and agree expressly to perform the obligations under this Agreement in the same manner and to the same extent as the Company would be required to perform such obligations in the absence of a succession. For all purposes under this Agreement, the term “Company” shall include any successor to the Company’s business and/or assets which executes and delivers the assumption agreement described in this Section 8(a) or which becomes bound by the terms of this Agreement by operation of law.

              (b)      The Employee’s Successors. The terms of this Agreement and all rights of the Employee hereunder shall inure to the benefit of, and be enforceable by, the Employee’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.

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     9.      Notice.

             (a)      General. All notices and other communications required or permitted hereunder shall be in writing, shall be effective when given, and shall in any event be deemed to be given upon receipt or, if earlier, (a) five (5) days after deposit with the U.S. Postal Service or other applicable postal service, if delivered by first class mail, postage prepaid, (b) upon delivery, if delivered by hand, (c) one (1) business day after the business day of deposit with Federal Express or similar overnight courier, freight prepaid or (d) one (1) business day after the business day of facsimile transmission, if delivered by facsimile transmission with copy by first class mail, postage prepaid, and shall be addressed (i) if to Employee, at his or her last known residential address and (ii) if to the Company, at the address of its principal corporate offices (attention: Secretary), or in any such case at such other address as a party may designate by ten (10) days’ advance written notice to the other party pursuant to the provisions above.

              (b)      Notice of Termination. Any termination by the Company for Cause or by the Employee for Good Reason or Disability or as a result of a voluntary resignation shall be communicated by a notice of termination to the other party hereto given in accordance with Section 9(a) of this Agreement. Such notice shall indicate the specific termination provision in this Agreement relied upon, shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination under the provision so indicated, and shall specify the termination date (which shall be not more than thirty (30) days after the giving of such notice). The failure by the Employee to include in the notice any fact or circumstance which contributes to a showing of Good Reason or Disability shall not waive any right of the Employee hereunder or preclude the Employee from asserting such fact or circumstance in enforcing his or her rights hereunder.

     10.      Miscellaneous Provisions.

              (a)      No Duty to Mitigate. The Employee shall not be required to mitigate the amount of any payment contemplated by this Agreement, nor shall any such payment be reduced by any earnings that the Employee may receive from any other source.

              (b)      Waiver. No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is agreed to in writing and signed by the Employee and by an authorized officer of the Company (other than the Employee). No waiver by either party of any breach of, or of compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of any other condition or provision or of the same condition or provision at another time.

              (c)      Headings. All captions and section headings used in this Agreement are for convenient reference only and do not form a part of this Agreement.

              (d)      Entire Agreement. This Agreement, along with other written agreements relating to the subject matter hereof between Employee and a duly authorized Company officer constitute the entire agreement of the parties hereto and supersede in their entirety all prior representations, understandings, undertakings or agreements (whether oral or written and whether expressed or implied) of the parties with respect to the subject matter hereof.

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               (e)      Choice of Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of Utah. The Utah state courts in Utah County, Utah and/or the United States District Court for the District of Utah in Salt Lake City shall have exclusive jurisdiction and venue over all controversies in connection with this Agreement.

              (f)      Severability. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect.

              (g)      Withholding. All payments made pursuant to this Agreement will be subject to withholding of applicable income and employment taxes.

              (h)      Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument.

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     IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by its duly authorized officer, as of the day and year set forth below.

 

 

 

 

 

COMPANY 

OMNITURE, INC.
 

 

 

By:  

/s/ Shawn J. Lindquist  

 

 

 

 

 

 

 

Title:  

Chief Legal Officer and Senior Vice President  

 

 

 

 

 

 

 

 

 

 

EMPLOYEE 

By:  

/s/ Joshua G. James  

 

 

 

 

 

 

 

 

 

 

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OMNITURE, INC.

AMENDMENT TO JOSHUA G. JAMES CHANGE OF CONTROL 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 a Change of Control 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. Release of Claims. Section 3(b) of the Agreement is amended and restated as follows:

     “(b) Release of Claims. The receipt of any severance pursuant to Section 3(a) will be subject to Employee signing and not revoking the Release and provided that the Release becomes effective and irrevocable no later than sixty (60) days following the termination date (such deadline, the “Release Deadline”). The Company shall provide the Release to Employee within two (2) business days of termination. If the Release does not become effective by the Release Deadline, Employee will forfeit any rights to severance payments or benefits under this Agreement. In no event will severance payments or benefits be paid or provided until the Release becomes effective and irrevocable.”

     2. Section 409A. Section 3(e) of the Agreement is amended and restated as follows:

     “(e) Internal Revenue Code Section 409A.

     (i) 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.

     (ii) 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 clause (iii) 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. If the Employee should die before all amounts have been paid, such unpaid amounts shall be paid in a lump-sum payment (less any withholding taxes) to the Employee’s designated beneficiary, if living, or otherwise to the personal representative of the Employee’s estate.

     (iii) 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.

     (iv) 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 clause (i) above.

     (v) 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 clause (i) 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

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qualified plan pursuant to Section 401(a)(17) of the Code for the year in which Employee’s employment is terminated.

     (vi) 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.”

     3. Parachute Payments of Less than 3.6 x Base Amount. The following is added to the end of Section 6(a) of the Agreement:

Any reduction in payments and/or benefits required by this Section 6(a) will occur in the following order: (i) reduction of cash payments; (ii) reduction of vesting acceleration of equity awards; and (iii) reduction of other benefits paid or provided to Employee. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant for Employee’s equity awards. If two or more equity awards are granted on the same date, each award will be reduced on a pro-rata basis.”

     4. Parachute Payment Equal to or Greater than 3.6 x Base Amount. The following is added to the end of Section 6(b) of the Agreement:

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

     5. Good Reason. Section 7(d) of the Agreement is amended and restated as follows:

     “(d) Good Reason. “Good Reason” 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:

          (i) 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 (including a reduction in duties, title, authority or responsibilities solely by virtue of the Company being acquired and made part of a larger entity);

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

          (iii) 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 material reduction of the facilities and perquisites available to Employee immediately prior to such reduction.

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

     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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