TALEO CORPORATION NEIL HUDSPITH FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT
EXHIBIT
10.2
TALEO
CORPORATION
▇▇▇▇
▇▇▇▇▇▇▇▇ FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This
agreement (the “Agreement”) is entered into as of January 1, 2010 (the
“Effective Date”) by and between Taleo Corporation, a Delaware corporation (the
“Company”) and ▇▇▇▇ ▇▇▇▇▇▇▇▇ (“Executive”) and amends and restates the ▇▇▇▇
▇▇▇▇▇▇▇▇ Employment Agreement with an Effective Date of May 1, 2008. The term of
this Agreement shall be four (4) years from the Effective Date. The
parties agree to engage in a good faith review and renewal evaluation of this
Agreement at the third anniversary of the Effective Date. If at the time of
expiration of this Agreement the Company is engaged in discussions that may
involve a Change in Control, as defined below, the term if this agreement shall
be automatically extended by eighteen (18) months from the original date of
expiration.
1. Duties and Scope of
Employment.
(a) Positions and
Duties. As of the Effective Date, Executive will serve as
Executive Vice President, Worldwide Field Operations. Executive will
assume and discharge such responsibilities as are commensurate with such
position and as the Chief Executive Officer may direct from time to time. During
Executive’s employment with the Company, Executive shall devote Executive’s full
time, skill and attention to Executive’s duties and responsibilities and shall
perform faithfully, diligently and competently. In addition, Executive shall
comply with and be bound by the operating policies, procedures and practices of
the Company in effect from time to time during Executive’s
employment. The period of Executive’s employment under this Agreement
is referred to herein as the “Employment Term.”
(b) Obligations. During
the Employment Term, Executive will devote Executive’s full business efforts and
time to the Company. For the duration of the Employment Term,
Executive agrees not to actively engage in any other employment, occupation, or
consulting activity for any direct or indirect remuneration (including
membership on a board of directors) without the prior approval of the Chief
Executive Officer; provided, however, that Executive may, without the approval
of the Chief Executive Officer, serve in any capacity with any civic,
educational, or charitable organization, provided such services do not interfere
with Executive’s obligations to the Company.
2. At-Will
Employment. Executive and the Company agree that Executive’s
employment with the Company constitutes “at-will”
employment. Executive and the Company acknowledge that this
employment relationship may be terminated at any time, upon written notice to
the other party, with or without good cause or for any or no cause, at the
option either of the Company or Executive. However, as described in
this Agreement, Executive may be entitled to severance benefits depending upon
the circumstances of Executive’s termination or resignation of
employment. Upon the termination of Executive’s employment with the
Company for any reason, Executive will be entitled to payment of all accrued but
unpaid vacation, expense reimbursements, and other benefits due to Executive
through the date of Executive’s termination of employment under any
Company-provided or paid plans, policies, and arrangements.
3. Compensation.
(a) Base
Salary. The Company shall pay Executive an annual salary of
$330,000.00 USD as compensation for Executive’s services (“Base
Salary”). The Base Salary will be paid periodically in accordance
with the Company’s normal payroll practices as in effect from time to time (but
no less frequently than once per month) and be subject to the usual, required
federal, state and local tax withholding, employment tax withholding
and other lawful deductions (“Withholdings”). Executive’s Base Salary
will be
(b) subject
to periodic review and adjustment (subject to Section 6(g)(ii) and the other
provisions of this Agreement), and such adjustments will be made based upon the
Company’s standard practices or the discretion of the Company’s Board of
Directors. Adjustments to Base Salary shall be incorporated into this
Agreement upon the effective date of the adjusted Base Salary.
(c) Bonus. Executive’s
annual target for the aggregate amount of annual and quarterly bonuses will be
$330,000.00 USD (“Target Bonus”), less Withholdings. Allocation,
eligibility and payment of Target Bonus will be based upon achievement of
quarterly or yearly performance goals approved by the Chief Executive Officer.
Target Bonus amounts will not be earned unless Executive remains employed
through the relevant quarter (for quarterly bonus payments) and through the end
of the fiscal year (for annual bonus payments). Bonus payments, if
any, will be made no later than the 15th day
of the third month following the later of (i) the end of the Company’s fiscal
year in which such bonus is earned, or (ii) the end of the calendar year in
which such bonus is earned. Executive’s Target Bonus will be subject to periodic
review and adjustment (subject to Section 6(g)(ii) and the other provisions of
this Agreement), and such adjustments will be made based upon the Company’s
standard practices or the discretion of the Company’s Board of Directors.
Adjustments to Target Bonus shall be incorporated into this Agreement upon the
effective date of the adjusted Target Bonus.
(d) Car
Allowance. Subject to Executive remaining an employee of the
Company through each payment date, for a period of two (2) years from May 1,
2008, Executive will receive an annual car allowance of $12,000.00 USD, less
Withholdings. Such car allowance will be paid periodically in accordance with
the Company’s normal payroll practices as in effect from time to time (but no
less frequently than once per month).
(e) Relocation Related
Reimbursements. Executive’s relocation expenses shall be
reimbursed in accordance with Schedule B hereto. Certain relocation
reimbursements shall be subject to gross-up for income tax impact to executive
in accordance with the Company’s standard relocation policy. 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 Executive remits the
related taxes.
4. Employee
Benefits.
(a) Vacation. Executive
will be eligible to receive four (4) weeks of paid annual
vacation. Executive’s use of vacation will be subject to the terms
and conditions of the vacation policies in place at the Company, including
without limitation, accrual limits and caps.
(b) General. During
the Employment Term, Executive will be eligible to participate in accordance
with the terms of all Company employee benefit plans, policies, and arrangements
that are applicable to other senior executives of the Company, as such plans,
policies, and arrangements may exist from time to time.
5. Expenses. The
Company will reimburse Executive for reasonable travel and other expenses
incurred by Executive in the furtherance of the performance of Executive’s
duties hereunder, in accordance with the Company’s expense reimbursement policy
as in effect from time to time.
6. Severance.
(a) If
Company or a successor corporation terminates Executive’s employment for any
reason other than Cause (as defined below) or if Executive resigns for Good
Reason (as defined below) and
(b) either
such event did not takes
place within sixty (60) days prior to or eighteen (18) months following a Change
in Control (as defined below), then Company or the successor corporation will
pay Executive:
(i) for any
bonus period partially completed at the time of Executive’s termination or
resignation, a lump sum equal to the daily prorated amount of Executive’s
then-current quarterly bonus (if any) and annual bonus, less any applicable
state and federal required withholding amounts and other lawful
deductions;
(ii) an
additional lump sum equal to one hundred percent (100%) of Executive’s Base
Salary at the rate in effect at the time of Executive’s resignation or
termination of employment, less any applicable state and federal required
withholding amounts and other lawful deductions; and
(iii) if
Executive elects to continue Executive’s health insurance coverage under the
Consolidated Omnibus Budget Reconciliation Act (“COBRA”) following such
termination or resignation of Executive’s employment, pay the same portion of
Executive’s monthly premium under COBRA as it pays for active employees until
the earliest of (i) the close of the 12 month period following the
termination of Executive’s employment, (ii) the expiration of Executive’s
continuation coverage under COBRA, or (iii) the date when Executive becomes
eligible for substantially equivalent health insurance coverage in connection
with new employment or self-employment.
(c) If
Company or a successor corporation terminates Executive’s employment for any
reason other than Cause (as defined below) or if Executive resigns for Good
Reason (as defined below) and either such event takes place within sixty (60)
days prior to eighteen (18) months following a Change in Control (as defined
below), then Company or the successor corporation will pay
Executive:
(i) for any
bonus period partially completed at the time of Executive’s termination or
resignation, a lump sum equal to the daily prorated amount of Executive’s
then-current quarterly bonus (if any) and annual bonus, less any applicable
state and federal required withholding amounts and other lawful
deductions;
(ii) an
additional lump sum equal to one hundred percent (100%) of Executive’s Base
Salary at the rate in effect at the time of Executive’s resignation or
termination of employment, less any applicable state and federal required
withholding amounts and other lawful deductions;
(iii) an
additional lump sum equal to one hundred percent (100%) of Executive’s
then-current Target Bonus, less any applicable state and federal required
withholding amounts and other lawful deductions; and
(iv) if
Executive elects to continue Executive’s health insurance coverage under the
Consolidated Omnibus Budget Reconciliation Act (“COBRA”) following such
termination or resignation of Executive’s employment, pay the same portion of
Executive’s monthly premium under COBRA as it pays for active employees until
the earliest of (1) the close of the 12 month period following the termination
of Executive’s employment, (2) the expiration of Executive’s continuation
coverage under COBRA, or (3) the date when Executive becomes eligible for
substantially equivalent health insurance coverage in connection with new
employment or self-employment.
(d) All
benefits set forth in Sections 6(a) and 6(b) are collectively referred to as
“Severance.” In the event Executive is entitled to Severance under
Section 6(b), Executive will not longer be entitled to Severance under Section
6(a). Subject
to Section 7(a) and to any required six (6) month delay
(e) pursuant
to Section 14, Severance payments, other than reimbursements of COBRA premiums,
shall be made by the Company in one lump sum and shall be paid within thirty
(30) days of any such termination of employment.
(f) In
addition to Severance, in the event that Company or a successor corporation
terminates Executive’s employment for any reason other than Cause (as defined
below) or if Executive resigns for Good Reason (as defined below) and either
such event did not take
place within sixty (60) days prior to or eighteen (18) months following a Change
in Control (as defined below), then (i) Executive will receive immediate vesting
with respect to the number of unvested stock options and stock appreciation
rights that would have vested in accordance with Executive’s then-current stock
option grants and stock appreciation rights had Executive remained employed for
an additional 6 months, (ii) the Company’s right of repurchase shall immediately
lapse with respect to Executive’s then-current restricted stock grants for which
the Company’s right of repurchase would otherwise have lapsed within 6 months
from the date of such termination or resignation of employment, and (iii) the
Executive will receiving immediate vesting with respect to Executive's
outstanding restricted stock units, performance shares and other equity
compensation that would have vested had Executive remained employed for an
additional 6 months. If an award vests in whole or in part on the
achievement of performance metrics that have not been achieved at the time of
the Executive’s termination or resignation, vesting of such awards shall not be
accelerated. In the event of Executive’s termination of employment as
described in this subsection (d), the Executive’s then vested stock options
shall be exercisable for 3 months after Executive’s date of
termination. Notwithstanding the foregoing, in no case shall any
option be exercisable after the expiration of its term.
(g) In
addition to Severance, in the event that Company or a successor corporation
terminates Executive’s employment for any reason other than Cause (as defined
below) or if Executive resigns for Good Reason (as defined below) and either
such event takes place within sixty (60) days prior to or eighteen (18) months
following a Change in Control (as defined below), Executive will receive
immediate vesting with respect to all unvested stock options and stock
appreciation rights that are held by Executive, the Company’s right of
repurchase shall lapse entirely with respect to restricted stock grants from the
Company to Executive, and the vesting of all Executive's outstanding restricted
stock units, performance shares and other equity compensation shall immediately
vest in full; provided, however, if the award vests in whole or in part on the
achievement of performance metrics, such metrics shall be deemed achieved at
100% of target levels (unless otherwise provided in the applicable award
agreement). In the event of Executive’s termination of employment as
described in this subsection (e), the Executive’s then outstanding stock options
shall be exercisable for 3 months after Executive’s date of
termination. Notwithstanding the foregoing, in no case shall any
option be exercisable after the expiration of its term.
(h) For
purposes of this Section 6, “Cause” means (i) any act of personal
dishonesty taken by Executive in connection with Executive’s employment
responsibilities, (ii) Executive’s conviction of a felony, (iii) any
act by Executive that constitutes material misconduct, (iv) repeated failures to
follow the lawful, reasonable instructions of the Chief Executive Officer, or
(v) substantial violations of employment or fiduciary duties,
responsibilities or obligations to Company.
(i) For
purposes of this Section 6, “Good Reason” means (i) without Executive’s
consent, a significant reduction of Executive’s duties, position or
responsibilities relative to Executive’s duties, position or responsibilities in
effect immediately prior to such reduction, other than a reduction where
Executive are asked to assume substantially similar duties and responsibilities
in a division of a larger entity after a Change in Control; (ii) without
Executive’s consent, a reduction of Executive’s Base Salary or Target Bonus
other than a one-time reduction that does not exceed twenty percent (20%) and
that is also applied to substantially all of Company’s senior executives; (iii)
without Executive’s consent, Executive’s relocation to a facility or a location
greater than 75 miles from Dublin, California; or (iv) the failure of a
successor entity after a Change
(j) in
Control to assume this Agreement. If Executive does not notify
Company in writing that Executive believes a significant reduction of
Executive’s duties, position or responsibilities has occurred pursuant to this
Section 6 within thirty days of the event or occurrence that Executive believes
to have resulted in such a significant reduction, then such reduction shall be
deemed for purposes of this Agreement as not constituting Good Reason, as that
terms is used in this Section 6. Disagreement as to the allocation,
eligibility and payment of Target Bonus to be set forth in a Target Bonus
Schedule shall not be a basis for Good Reason resignation.
(k) For
purposes of this Section 6, “Change in Control” means the occurrence of any
of the following events: (i) any “person” (as such term is used in Sections
13(d) and 14(d) of the Exchange Act) becomes the “beneficial owner” (as defined
in Rule 13d-3 of the Exchange 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 and such change
in ownership results in broad management changes at Company; or (ii) the
consummation of the sale or disposition by Company of all or substantially all
of Company’s assets; or (iii) the consummation of a merger or consolidation of
Company with any other corporation, other than a merger or consolidation which
would result in the voting securities of Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity or its parent) more
than fifty percent (50%) of the total voting power represented by the voting
securities of Company or such surviving entity or its parent outstanding
immediately after such merger or consolidation.
(l) Notwithstanding
the above, Company’s Chief Executive Officer reserves the right to make
reasonable organizational structure changes reasonably commensurate with the
position of Chief Executive Officer. Such changes may include the
shifting or reassignment of divisional, geographic or team responsibilities
among members of the executive team. Such changes are within the
reasonable discretion of the Chief Executive Officer and shall not constitute
Good Reason, as that term is used in this Section 6.
(m) Termination due to Death or
Disability. If Executive’s employment terminates by reason of
death or Disability, then (i) Executive will be entitled to receive
benefits only in accordance with the Company’s then applicable plans, policies,
and arrangements, and (ii) Executive’s outstanding equity awards will terminate
in accordance with the terms and conditions of the applicable award
agreement(s).
(n) Sole Right to
Severance. This Agreement is intended to represent Executive’s
sole entitlement to severance payments and benefits in connection with the
termination of Executive’s employment. To the extent Executive
receives severance or similar payments and/or benefits under any other Company
plan, program, agreement, policy, practice, or the like, severance payments and
benefits due to Executive under this Agreement will be correspondingly reduced
(and vice-versa).
7. Conditions to Receipt of
Severance.
(a) Separation Agreement and
Release of Claims. The receipt of any severance pursuant to
this Agreement will be subject to Executive signing and not revoking a
separation agreement and release of claims (the “Release”) in a form reasonably
acceptable to the Company which becomes effective within sixty (60) days
following Executive’s employment termination date or such earlier date as
required by the Release (such deadline, the “Release Deadline”). The
Release will provide (among other things) that Executive will not disparage the
Company, its directors, or its executive officers, and will contain
No-Inducement, No-Solicit and Non-Compete terms consistent with this
Agreement. No severance pursuant to this Agreement will be paid or
provided until the Release becomes effective. Notwithstanding any
timing of payment provision in Section 6, in the event severance payments
provided under Section 6(a) or Section 6(b) would be considered Deferred
Payments (as defined in Section 13 below), then the following timing of payments
will
(b) apply to
such Deferred Payments, in each case subject to any delay in payment required by
the provisions of Section 13 (and provided the Release becomes
effective):
(i) If the
Release Deadline is on or before December 10 of the calendar year in which
Executive’s “separation from service” (within the meaning of Section 409A
of the Internal Revenue Code of 1986, as amended, and any final regulations
and official guidance promulgated thereunder (together, “Section 409A”))
occurs, any portion of the severance payments or benefits provided under Section
6(a) or Section 6(b) that would be considered Deferred Payments will be paid to
Executive on or before December 31 of that calendar year or such later time as
required by (A) the payment schedule applicable to each payment or benefit as
set forth in Section 6, or (B) if applicable, Section 13 of this
Agreement; and
(ii) If the
Release Deadline is after December 10 of the calendar year in which Executive’s
“separation from service” (within the meaning of Section 409A) occurs, any
portion of the severance payments or benefits provided under Section 6(a)
or Section 6(b) that would be considered Deferred Payments will be paid on
the first payroll date to occur during the calendar year following the calendar
year in which such separation of service occurs or such later time as required
by (A) the payment schedule applicable to each payment or benefit as set
forth in Section 6, (B) the Release Deadline, or (C) if applicable,
Section 13 of this Agreement.
(c) No-Inducement and
No-Solicit. In the event of a termination or resignation of
Executive’s employment that otherwise would entitle Executive to the receipt of
severance payments or benefits pursuant to Section 6, Executive agrees that as a
condition to receipt of such severance, during the 12-month period following
termination of employment, Executive, directly or indirectly, whether as
employee, owner, sole proprietor, partner, director, founder or otherwise, will
(i) not, solicit, induce, or influence any person to modify their
employment or consulting relationship with the Company (the “No-Inducement”),
and (ii) not solicit, divert or take away or attempt to solicit, divert or
take away the business of any customer or prospective customer of the Company
(the “No-Solicit”). If Executive breaches the No-Inducement or
No-Solicit, all payments and benefits to which Executive otherwise
may be entitled pursuant to Section 6 will cease immediately and shall be repaid
to the Company. Executive acknowledges that the time, geographic and
scope limitations of Executive’s obligations under this section that are to be
reflected in a separation agreement are fair and reasonable in all respects, and
provides no more protection than is necessary to protect the Company’s
Confidential Information and, consequently, to preserve the value and goodwill
of the Company. Executive further acknowledges that Executive will
not be precluded from gainful employment as a result of the obligations of this
section. In the event the provisions of this section are deemed to
exceed the time, geographic or scope limitations permitted by applicable law,
Executive and the Company mutually agree that such provisions shall be reformed
to the maximum time, geographic or scope limitations, as the case may be, then
permitted by such law. The covenants contained in this section shall
be construed as a series of separate covenants, one for each city, town, suburb
and state within the geographical area. For purposes of this Section
7, “geographical area” shall mean (i) all counties in the State where Executive
was employed by the Company; (ii) all other states of the United States of
America from which the Company derived revenue at any time during the two-year
period prior to the date of the termination of Executive’s relationship with the
Company, and (iii) all other province, state, city or other political
subdivision of each country from which the Company derived revenue at any time
during the two-year period prior to the date of the termination of Executive’s
relationship with the Company.
8. Confidential
Information.
(a) Company
Information. The Executive will not, at any time, whether
during or subsequent to Executive’s employment hereunder, directly or
indirectly, disclose or furnish to any other person, firm or corporation, or use
on behalf of himself/herself or any other person, firm or corporation,
any
(b) confidential
or proprietary information acquired by the Executive in the course of
Executive’s employment with the Company, including, without limiting the
generality of the foregoing, product design, product roadmaps, future product
plans, contractual details relating to current Company clients, buying habits of
present and prospective clients of Company, pricing and sales policy, techniques
and concepts, the names of customers or prospective customers of the Company or
of any person, firm or corporation who or which have or shall have treated or
dealt with the Company or any of its subsidiaries or affiliated companies, any
other information acquired by the Executive regarding the methods of conducting
the business of the Company and any of its subsidiaries and/or affiliates, any
information regarding the Company's methods of research and development, of
obtaining business, of manufacturing, of providing or advertising products or
services, or of obtaining customers, trade secrets and other confidential
information concerning the business operations of the Company or any company
and/or entity affiliated with the Company, except to the extent that such
information is already generally known in the public domain.
(c) Former Employer
Information. Executive agrees, during employment with the
Company, not to improperly use or disclose any proprietary information or trade
secrets of any former or concurrent employer or other person or entity and that
Executive will not bring onto the premises of the Company any unpublished
document or proprietary information belonging to any such employer, person or
entity unless consented to in writing by such employer, person or
entity.
(d) Third Party
Information. Executive recognizes that the Company has
received and in the future will receive from third parties their confidential or
proprietary information subject to a duty on the Company’s part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. Executive agrees to hold all such confidential or
proprietary information in the strictest confidence and not to disclose it to
any person, firm or corporation or to use it except as necessary in carrying out
work for the Company consistent with the Company’s agreement with such third
party.
(e) Assignment of
Inventions. Executive agrees to promptly make full written
disclosure to the Company, will hold in trust for the sole right and benefit of
the Company and hereby assigns to the Company, or its designee, all right, title
and interest in and to any and all inventions, original works of authorship,
developments, concepts, improvements, or trade secrets, whether or not
patentable or registrable under copyright or similar laws, which Executive may
solely or jointly conceive or develop or reduce to practice, or cause to be
conceived or developed or reduced to practice, during the period of time
Executive is in the employ of the Company (collectively referred to as
“Inventions”). Executive further acknowledges that all original works
of authorship which are made by Executive (solely or jointly with others) within
the scope of and during the period of Executive’s employment with the Company
and which are protectible by copyright are “works made for hire” as that term is
defined in the relevant copyright act.
(f) Inventions Retained and
Licensed. Executive has attached hereto, as Schedule A,
a list of all inventions, original works of authorship, developments,
improvements, and trade secrets which were made by Executive prior to
Executive’s employment with the Company (collectively referred to as “Prior
Inventions”), which belong to Executive, which relate to the Company’s proposed
business, products or research and development, and which are not assigned to
the Company hereunder; or, if no such list is attached, Executive represents
that there are no such Prior Inventions. If in the course of
Executive’s employment with the Company, Executive incorporates into a Company
product, process or machine a Prior Invention owned by Executive or in which
Executive has an interest, the Company is hereby granted and shall have a
nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make,
have made, modify, use, and sell such Prior Invention as part of or in
connection with such product, process or machine.
(g) Maintenance of
Records. Executive agrees to keep and maintain adequate
and current written records of all Inventions made by Executive (solely or
jointly with others) during the term of
(h) Executive’s
employment with the Company. The records will be in the form of
notes, sketches, drawings, and any other format that may be specified by the
Company. The records will be available to and remain the sole
property of the Company at all times.
(i) Patent and Copyright
Registrations. Executive agrees to assist the Company,
or its designee, at the Company’s expense, in every proper way to secure the
Company’s rights in the Inventions and any copyrights, patents, mask work rights
or other intellectual property rights relating thereto in any and all countries,
including the disclosure to the Company of all pertinent information and data
with respect thereto, the execution of all applications, specifications, oaths,
assignments and all other instruments which the Company shall deem necessary in
order to apply for and obtain such rights and in order to assign and convey to
the Company, its successors, assigns, and nominees the sole and exclusive
rights, title and interest in and to such Inventions, and any copyrights,
patents, mask work rights or other intellectual property rights relating
thereto. Executive further agrees that Executive’s obligation to
execute or cause to be executed, when it is in Executive’s power to do so, any
such instrument or papers shall continue after the termination of this
Agreement. If the Company is unable because of Executive’s mental or
physical incapacity or for any other reason to secure Executive’s signature to
apply for or to pursue any application for any Canadian or foreign patents or
copyright registrations covering Inventions or original works of authorship
assigned to the Company as above, then Executive hereby irrevocably designate
and appoint the Company and its duly authorized officers and agents as
Executive’s agent and attorney in fact, to act for and in Executive’s behalf and
stead to execute and file any such applications and to do all other lawfully
permitted acts to further the prosecution and issuance of letters patent or
copyright registrations thereon with the same legal force and effect as if
executed by Executive.
(j) Return of Company
Documents. Executive agrees that, at the time of leaving the
employ of the Company, Executive will deliver to the Company (and will not keep
in Executive’s possession, recreate or deliver to anyone else) any and all
devices, records, data, notes, reports, proposals, lists, correspondence,
specifications, drawings blueprints, sketches, materials, equipment, other
documents or property, or reproductions of any aforementioned items developed by
Executive pursuant to Executive’s employment with the Company or otherwise
belonging to the Company, its successors or assigns.
9. Assignment. This
Agreement will be binding upon and inure to the benefit of (a) the heirs,
executors, and legal representatives of Executive upon Executive’s death and (b)
any successor of the Company. Any such successor of the Company will
be deemed substituted for the Company under the terms of this Agreement for all
purposes. For this purpose, “successor” means any person, firm,
corporation, or other business entity which at any time, whether by purchase,
merger, or otherwise, directly or indirectly acquires all or substantially all
of the assets or business of the Company. None of the rights of
Executive to receive any form of compensation payable pursuant to this Agreement
may be assigned or transferred except by will or the laws of descent and
distribution. Any other attempted assignment, transfer, conveyance,
or other disposition of Executive’s right to compensation or other benefits will
be null and void.
10. Notices. All
notices, requests, demands, and other communications called for hereunder will
be in writing and will be deemed given (a) on the date of delivery if delivered
personally, (b) one day after being sent by a well established commercial
overnight service, or (c) four days after being mailed by registered or
certified mail, return receipt requested, prepaid and addressed to the parties
or their successors at the following addresses, or at such other addresses as
the parties may later designate in writing:
If to the
Company:
Attn: VP
Legal
Taleo Corporation
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If to
Executive:
at the
last residential address known by the Company as provided by Executive in
writing.
11. Severability. In
the event that the application of any provision hereof to any particular facts
or circumstances shall be held to be invalid or unenforceable under the
governing law hereof, then: (i) such provision shall be reformed without further
action by the parties to the extent strictly necessary to render such provision
valid and enforceable when applied to such particular facts or circumstances;
and (ii) the validity and enforceability of such provision as applied to any
other particular facts or circumstances, and the validity and enforceability of
all of the other provisions hereof, shall in no way be affected or impaired
thereby.
12. Arbitration.
(a) General. In
consideration of Executive’s employment with the Company, its promise to
arbitrate all employment related disputes, and Executive’s receipt of the
compensation and other benefits paid to Executive by the Company, at present and
in the future, Executive agrees that any and all controversies, claims, or
disputes with anyone (including the Company and any employee, officer, director,
shareholder, or benefit plan of the Company in their capacity as such or
otherwise), whether brought on an individual, group, or class basis, arising out
of, relating to, or resulting from Executive’s employment with the Company under
this Agreement or otherwise or the termination of Executive’s employment with
the Company, including any breach of this Agreement, shall be subject to binding
arbitration by JAMS pursuant to its Employment Arbitration Rules &
Procedures (the “JAMS Rules”). Disputes which Executive agrees to
arbitrate, and thereby agrees to waive any right to a trial by jury, include any
statutory claims under state or federal law, including, but not limited to,
claims under Title VII of the Civil Rights Act of 1964, the Americans with
Disabilities Act of 1990, the Age Discrimination in Employment Act of 1967, the
Older Workers Benefit Protection Act, claims of harassment, discrimination, or
wrongful termination, and any statutory claims. Executive further
understands that this Agreement to arbitrate also applies to any disputes that
the Company may have with Executive.
(b) Procedure. Executive
agrees that the arbitrator shall have the power to decide any motions brought by
any party to the arbitration, including motions for summary judgment and/or
adjudication, motions to dismiss or strike, and motions for class certification,
prior to any arbitration hearing. Executive agrees that the
arbitrator will issue a written decision on the merits. Executive
also agrees that the arbitrator shall have the power to award any remedies
available under applicable law, and that the arbitrator shall award attorneys’
fees and costs to the prevailing party, except as prohibited by law. Executive
understands that the Company and Executive will split any administrative or
hearing fees charged by the arbitrator or JAMS, except that the party initiating
the arbitration will pay the full filing fee. Executive agrees that
any arbitration under this Agreement shall be conducted in accordance with the
laws of California, and that the arbitrator shall apply the substantive and
procedural laws of California, without reference to the rules of conflict of
law. To the extent that the JAMS Rules conflict with the laws of
California, the JAMS Rules will take precedence. The parties agree
that arbitration proceedings will be held in the county where Executive is
employed by the Company.
(c) Remedy. Except
for the provisional remedies provided for under California law and this
Agreement, arbitration will be the sole, exclusive, and final remedy for any
dispute between Executive and the Company. Accordingly, except as
provided for by California law and this Agreement, neither Executive nor the
Company will be permitted to pursue court action regarding claims that are
subject to arbitration. Notwithstanding, the arbitrator will not have
the authority to disregard or refuse to enforce any lawful Company policy, and
the arbitrator will not order or require the Company to adopt a policy not
otherwise required by law which the Company has not adopted.
(d) Availability of Injunctive
Relief. In addition to the right under California law to
petition the court for provisional relief, Executive agrees that any party also
may petition the court for injunctive relief where either party alleges or
claims a breach or threatened breach of this Agreement or any other agreement
regarding trade secrets, confidential information, nonsolicitation,
noninducement or noncompetition.
(e) Administrative
Relief. Executive understands that this Agreement does not
prohibit Executive from pursuing an administrative claim with a local, state, or
federal administrative body such as the Equal Employment Opportunity Commission,
the National Labor Relations Board or the workers’ compensation
board. This Agreement does, however, preclude Executive from pursuing
court action regarding any such claim.
(f) Voluntary Nature of
Agreement. Executive acknowledges and agrees that Executive is
executing this Agreement voluntarily and without any duress or undue influence
by the Company or anyone else. Executive further acknowledges and
agrees that Executive has carefully read this Agreement and that Executive has
asked any questions needed for Executive to understand the terms, consequences,
and binding effect of this Agreement, including that Executive is waiving
Executive’s right to a jury trial. Finally, Executive agrees that
Executive has been provided an opportunity to seek the advice of an attorney of
Executive’s choice before signing this Agreement.
13. Section
409A.
(a) Notwithstanding
anything to the contrary in this Agreement, no severance payments or benefits
payable to Executive, if any, pursuant to this Agreement that, when considered
together with any other severance payments or separation benefits, is considered
deferred compensation under Section 409A (together, the “Deferred Payments”)
will be payable until Executive has a “separation from service” within the
meaning of Section 409A. Similarly, no severance payable to
Executive, if any, pursuant to this Agreement that otherwise would be exempt
from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(9) will be
payable until Executive has a “separation from service” within the meaning of
Section 409A.
(b) Further,
if Executive is a “specified employee” within the meaning of Section 409A
at the time of Executive’s separation from service (other than due to death),
any Deferred Payments that otherwise are payable within the first six (6) months
following Executive’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 Executive’s separation from service. All
subsequent Deferred Payments, if any, will be payable in accordance with the
payment schedule applicable to each payment or
benefit. Notwithstanding anything herein to the contrary, in the
event of Executive’s death following Executive’s separation from service but
prior to the six (6) month anniversary of Executive’s separation from service
(or any later delay date), 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 Executive’s death and all other Deferred Payments will be
payable in accordance with the payment schedule applicable to each payment or
benefit. Each payment and
(c) benefit
payable under the Agreement is intended to constitute a separate payment for
purposes of Section 1.409A-2(b)(2) of the Treasury Regulations.
(d) Any
severance payment that satisfies the requirements of the “short-term deferral”
rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations shall not
constitute Deferred Payments for purposes of the Agreement. Any
severance payment 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 shall not constitute
Deferred Payments for purposes of the Agreement. For purposes of this
subsection (c), “Section 409A Limit” will mean the lesser of two (2) times: (i)
Executive’s annualized compensation based upon the annual rate of pay paid to
Executive during the Company’s taxable year preceding the Company’s taxable year
of Executive’s separation from service as determined under Treasury Regulation
Section 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 Executive’s employment is terminated.
(e) 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 under
the Agreement will be subject to the additional tax imposed under Section 409A,
and any ambiguities herein will be interpreted to so
comply. Executive and the Company agree to work together in good
faith to consider amendments to the 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 Executive under
Section 409A.
14. Integration. This
Agreement, along with the documents incorporated by reference herein, represents
the entire agreement and understanding between the parties as to the subject
matter herein and supersedes all prior or contemporaneous agreements whether
written or oral, including any employment, change of control or severance
agreement entered into with the Company or any subsidiary of the
Company. No waiver, alteration, or modification of any of the
provisions of this Agreement will be binding unless in a writing that
specifically references this Section and is signed by duly authorized
representatives of the parties hereto. With respect to stock options
and awards of restricted stock granted on or after the date hereof, the
acceleration of vesting provisions provided herein will apply to such awards
except to the extent otherwise explicitly provided in the applicable equity
award agreement.
15. Waiver of
Breach. The waiver of a breach of any term or provision of
this Agreement, which must be in writing, will not operate as or be construed to
be a waiver of any other previous or subsequent breach of this
Agreement.
16. Survival. The
Company’s and Executive’s responsibilities under Sections 8 and
12 and all other provisions intended by their terms to survive the
termination of this Agreement will survive the termination of this
Agreement.
17. Headings. All
captions and section headings used in this Agreement are for convenient
reference only and do not form a part of this Agreement.
18. Tax
Withholding. All payments made pursuant to this Agreement will
be subject to Withholdings.
19. Governing
Law. This Agreement will be governed by the laws of the State
of California (with the exception of its conflict of laws
provisions).
20. Acknowledgment. Executive
acknowledges that Executive has had the opportunity to discuss this matter with
and obtain advice from Executive’s private attorney, has had sufficient time to,
and has carefully read and fully understands all the provisions of this
Agreement, and is knowingly and voluntarily entering into this
Agreement.
21. Counterparts. This
Agreement may be executed in counterparts, and may be exchanged by fax or
electronically scanned and emailed copies. Each counterpart will have the same
force and effect as an original and will constitute an effective, binding
agreement on the part of each of the undersigned.
22. Parachutes. Notwithstanding
any other provisions of this Agreement to the contrary, in the event that any
payments or benefits received or to be received by Executive in connection with
Executive’s employment with Company (or termination thereof) would subject
Executive to the excise tax imposed under Section 4999 of the Internal Revenue
Code of 1986, as amended (the “Excise Tax”), and if the net-after tax amount
(taking into account all applicable taxes payable by Executive, including
without limitation any Excise Tax) that Executive would receive with respect to
such payments or benefits is less thanthe net-after tax amount Executive would
receive if the amount of such payments and benefits were reduced to the maximum
amount which could otherwise be payable to Executive without the imposition of
the Excise Tax, then, and only the extent necessary to eliminate the imposition
of the Excise Tax, such payments and benefits shall be so reduced. Any reduction
in payments and/or benefits required by this Section 22 will occur in the
following order: (a) reduction of cash payments; (b) reduction of vesting
acceleration of equity awards; and (c) reduction of other benefits paid or
provided to Executive. 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 Executive’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. In no event shall the Executive have any discretion with
respect to the ordering of payment reductions.
Unless
the Company and Executive otherwise agree in writing, any determination required
under this Section 22 will be made in writing by a nationally recognized
certified public accounting firm selected by the Company, the Company’s legal
counsel or such other person or entity to which the parties mutually agree (the
“Accountants”), whose determination will be conclusive and binding upon
Executive and the Company for all purposes.
For
purposes of making the calculations required by this Section 22, 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 Code. The
Company and Executive will furnish to the Accountants such information and
documents as the Accountants may reasonably request in order to make a
determination under this Section 22. The Company will bear all costs the
Accountants may reasonably incur in connection with any calculations
contemplated by this Section 22.
IN
WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of
the Company by a duly authorized officer, as of the day and year written
below.
COMPANY:
TALEO
CORPORATION
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By:
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/s/
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Date:
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January
18, 2010
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Name:
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||||
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Title:
Chairman and Chief Executive Officer
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EXECUTIVE:
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/s/
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Date:
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January
14, 2010
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[SIGNATURE
PAGE TO ▇▇▇▇ ▇▇▇▇▇▇▇▇ EMPLOYMENT AGREEMENT]
Schedule
A
List
of Prior Inventions, Designs and Original Works of Authorship
Title Date Identifying
Number of Brief Description
___ü_ No invention or
improvements
____
Additional sheets attached
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Signature
of Executive:
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/s/
▇▇▇▇ ▇▇▇▇▇▇▇▇
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Printed
Name of Executive:
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▇▇▇▇
▇▇▇▇▇▇▇▇
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Date:
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January
14, 2010
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Schedule
B
Relocation Related
Reimbursements
|
Relocation
Reimbursement Item
|
|
Visa
Costs: 3 Year L-1 Visa
|
|
Rent
Payment: up to $7,000 per month for up to 2
years
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Air
fare for travel between Europe and the San Francisco Bay area for family
members for two years: up to $26,000 USD per year.
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Moving
house hold goods to USA: up to $10,000
Moving
house hold goods back to UK (“Return Reimbursements”): all reasonable
expenses*
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Storage
up to 3 months: up to $5,000
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Home
search trip for family of 2. Air fare from Europe to San Francisco Bay
area: up to $12,000 USD.
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Relocation
to US for family of 2. Air fare from Europe to the San Francisco Bay area:
up to $6,000 USD.
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Miscellaneous
relocation expenses: $7,000
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Corporate
housing for up to 3 months: up to $3,500 per
month
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The above
relocation-reimbursements are effective as of May 1, 2008. Except
with respect to the Return Reimbursements, the intent of the above
relocation-reimbursements has always been and continues to be that you are
required to remain an employee through the date of reimbursement of any of the
above expenses. Such reimbursements are intended to be exempt from
the requirements of Section 409A under the “short-term deferral”
rule.
* All
Return Reimbursement expenses must be incurred while you are a Taleo employee or
within six (6) months following your separation from service. With respect to
the taxable portion of any such Return Reimbursements, (a) any such
reimbursements shall be made no later than the last day of the calendar year
that immediately follows the calendar year in which you incurred the expense;
(b) such reimbursement shall not be subject to liquidation or exchange for
another benefit or payment; and (c) the reimbursement provided to you in
any calendar year shall not affect the expenses eligible for reimbursement or
in-kind benefits to be provided in any other calendar year. Such
reimbursements are intended to constitute compliant deferred compensation
payable on a specified date or fixed schedule in accordance with the
requirements set forth under Treasury Regulation Section
1.409A-3(i)(1)(iv). You and the Company agree to work together in
good faith to consider amendments to the Schedule B 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 you under
Section 409A.