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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