JOHN PESTANA AMENDED & RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.6
XXXX XXXXXXX 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 000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxx, XX 00000, (the “Company”),
and Xxxx Xxxxxxx, 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 Vice President of Strategy, and will be appointed as
a member of Company’s Board of Directors (the “Board”). Employee will report to the
Company’s Chief Executive Officer.
2. Duties. Employee will perform duties that are executive in nature, consistent
with his title, will report to the Company’s Chief Executive Officer, and will hold a position of
responsibility and importance in scope; 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 $75,000 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. | |||
| 000 Xxxx Xxxxxxxxxx Xxxxxx | ||||
| Xxxx, XX 00000 | ||||
| Attention: | Corporate Secretary | |||
| If to Employee: | Xxxx Xxxxxxx | |||
| 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. | XXXX XXXXXXX | |||||||
By:
|
/s/ Xxxxxx X. Xxxxx | /s/ Xxxx Xxxxxxx | ||||||
Name:
|
Xxxxxx X. Xxxxx | |||||||
Title:
|
Chief Executive Officer | |||||||
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