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 ”).
7.1
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 f
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