TALEO CORPORATION MICHAEL P. GREGOIRE EMPLOYMENT AGREEMENT
EXHIBIT
10.1
TALEO
CORPORATION
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▇. ▇▇▇▇▇▇▇▇ EMPLOYMENT AGREEMENT
This
Agreement is entered into as of January 1, 2010 (the “Effective Date”) by and
between Taleo Corporation (the “Company”) and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(“Executive”).
1. Duties and Scope of
Employment.
(a) Positions and
Duties. As of the Effective Date, Executive will serve as the
Company’s President and Chief Executive Officer. Executive will
render such business and professional services in the performance of his duties,
consistent with Executive’s position as the most senior executive officer within
the Company, as will reasonably be assigned to him by the Company’s Board of
Directors (the “Board”). The period of Executive’s employment under
this Agreement is referred to herein as the “Employment Term.” The
Executive’s services shall be performed at the Company’s corporate headquarters
in Dublin, California.
(b) Board
Membership. Executive was appointed to serve as a member of
the Board prior to the Effective Date. During the Employment Term, at
each annual meeting of the Company’s stockholders at which Executive’s term as a
member of the Board has otherwise expired, the Company will nominate Executive
to serve as a member of the Board. Executive’s service as a member of
the Board will be subject to any required stockholder approval. Upon
the termination of Executive’s employment for any reason, unless otherwise
requested by the Board and agreed to by the Executive, Executive will be deemed
to have resigned from the Board (and any boards of subsidiaries) voluntarily,
without any further required action by Executive, as of the end of Executive’s
employment and Executive, at the Board’s request, will execute any reasonable
documents necessary to reflect such resignation.
(c) Obligations. During
the Employment Term, Executive will devote Executive’s full business efforts and
time to the Company but the Executive may serve on up to two other boards of
directors, subject to the Board’s reasonable determination that such service
does not conflict with his obligations 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 without the prior approval of the Board; provided, however, that
Executive may, without the approval of the Board, serve in any capacity with any
civic, educational, or charitable organization, provided such services do not
interfere with Executive’s obligations to 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 of employment. Upon the
termination of Executive’s employment with the Company for any reason, Executive
will
3. be
entitled to payment on his termination date of all accrued but unpaid salary,
vacation, any earned bonuses, expense reimbursements, and other benefits due to
Executive through his termination date under any Company-provided or paid plans,
policies, and arrangements.
4. Term of
Agreement. This Agreement will have a term of four (4) years
commencing on the Effective Date and shall automatically terminate on the fourth
(4th)
anniversary of the Effective Date unless otherwise extended by the Company and
the Executive in accordance with the Company’s applicable compensation and
governance practices. On or about the third (3rd)
anniversary of the Effective Date, the Compensation Committee of the Board (the
“Committee”) will review the Agreement in good faith and make a recommendation
to the Board as to whether to extend and/or renew the Agreement in accordance
with the Company’s then applicable compensation and governance
practices. The Board will shortly thereafter act on the Committee’s
recommendations and communicate its decision to the
Executive. Notwithstanding the foregoing, if the Board is engaged in
discussions at the time this Agreement would otherwise expire pursuant to this
Section 3, which might reasonably result in the Company undergoing a Change in
Control, the term of this Agreement will be automatically extended by eighteen
(18) months from the original expiration date.
5. Compensation.
(a) Base
Salary. As of the Effective Date, the Company will pay
Executive an annual salary of $500,000.00 as compensation for his services (the
“Base Salary”). The Base Salary will be paid periodically in
accordance with the Company’s normal payroll practices (but no less frequently
than once per month) and be subject to the usual, required
withholding. Executive’s salary will be subject to annual review, and
adjustments will be made based upon the Company’s standard practices or the
discretion of the Board. Adjustments to Base Salary shall be
incorporated into this Agreement upon the effective date of the adjusted Base
Salary.
(b) Annual
Bonus. As of the Effective Date, Executive’s annual target
bonus will be one hundred and ten percent (110%) of Base Salary (“Target
Bonus”). Executive’s annual bonus will be determined based upon
achievement of performance goals approved by the Board. Executive
will have the opportunity to discuss the nature of such performance goals with
the Board prior to such performance goals being approved by the
Board. Bonuses, if any, will accrue and become payable in accordance
with the Committee’s standard practices for paying executive incentive
compensation; provided, however, Executive’s actual bonus earned for any fiscal
year will be paid within 45 days following the end of the Company’s fiscal
year. Executive’s Target Bonus will be subject to annual review, and
adjustments will be made based upon the Company’s standard practices or the
discretion of the Board. Adjustments to Target Bonus shall be
incorporated into this Agreement upon the effective date of the adjusted Target
Bonus.
(c) Long-Term
Incentives. During the Employment Term, Executive will be
eligible to receive long-term equity grants in amounts, with terms and
conditions, and at such times as determined in the sole and absolute discretion
of the Committee.
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(d) Employee
Benefits. 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. Executive will be entitled to 4 weeks of paid
annual vacation.
6. Expenses. The
Company will reimburse Executive for reasonable travel, entertainment, 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; provided, however, that any
taxable expense reimbursements shall be structured to comply with (or be exempt
from) Section 409A of the Internal Revenue Code of 1986, as amended ("Section
409A").
7. Severance.
(a) Termination Without Cause or
Resignation for Good Reason. If Executive’s employment is
terminated by the Company without Cause or by Executive for Good Reason, then,
subject to Section 8, Executive will receive: (i) for any bonus period partially
completed at the time Executive’s employment is terminated, a lump-sum equal to
the daily pro-rated amount of Executive’s then current quarterly bonus (if any)
and annual bonus; (ii) a lump-sum payment equal to one hundred and fifty percent
(150%) of Executive’s then annual Base Salary, (iii) Executive will receive
reimbursement for any applicable premiums Executive pays, for a period of
eighteen (18) months, or if earlier, until Executive is eligible for similar
benefits from another employer, if the Executive or any of his dependents is
eligible for and elects COBRA continuation coverage (as described in Section
4980B of the Internal Revenue Code of 1986, as amended (the “Code”) under the
Company’s health insurance plan; (iv) a post-termination exercise period for
Executive’s stock options of twelve (12) months (but in no event later than the
earlier of the expiration of the term of the applicable stock option or the
tenth (10th) anniversary of the date of grant of the applicable option), and (v)
immediate vesting and, if applicable, settlement (except to the extent required
to avoid taxation under Section 409A) of all unvested Company equity awards
(including without limitation, any stock options, stock appreciation rights,
restricted stock awards, restricted stock units, performance shares or
performance units) (with any such compensatory equity awards being collectively
referred to herein as “Compensatory Equity”) that (A) if such Compensatory
Equity would have become vested based solely upon a time-based vesting schedule,
would have vested had Executive otherwise remained an employee for the eighteen
(18) month period commencing on his termination date, or (B) if such
Compensatory Equity was either entirely or partially subject to a
performance-based vesting schedule for which the relevant performace target
could have been attained during the eighteen (18) month period
commencing on his termination date, unless otherwise provided in the applicable
Compensatory Equity award agreement, would have vested as if one hundred percent
(100%) of the target performance-goals had been obtained. Upon (x) a
Change of Control, and (y) if Executive’s employment is terminated by the
Company without Cause or by Executive for Good Reason within sixty (60) days
before or eighteen (18) months following such Change of Control, then, subject
to Section 8 and in lieu of the payments and accelerated vesting rights set
forth in Sections 7(a)(ii) and 7(a)(v) above, Executive will receive (A) a
lump-sum payment equal to one hundred and fifty percent (150%) of Executive’s
then annual Base Salary plus
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(b) one
hundred fifty percent (150%) of Executive’s then current annual Target Bonus
amount for the year of termination, and (B) immediate vesting and, if
applicable, settlement (except to the extent required to avoid taxation under
Section 409A) with respect to all unvested Compensatory Equity that are then
held by Executive (with any Compensatory Equity which was either entirely or
partially subject to a performance-based vesting schedule, becoming vested,
unless otherwise provided in the applicable Compensatory Equity award agreement,
based upon a deemed achievement of one hundred percent (100%) of the target
performance-goals). Subject to Section 7(a)(iv) above, Executive’s
vested stock options and/or stock appreciation rights will remain exercisable in
accordance with the terms of the applicable Company stock plan and corresponding
award agreements and thereafter will expire to the extent not
exercised. In the event any accelerated vesting of restricted stock
units, performance shares or performance units that are subject to (and not
exempt from Section 409A) occurs pursuant to this Section 7(a), the settlement
of such awards and issuance of the underlying shares will be subject to any
required six (6) month delay pursuant to Section 24, and all payment will be
paid less any applicable tax withholding amounts and other lawful and required
deductions.
(c) Limitation on
Payments. In the event that the severance and other benefits
provided for in this Agreement or otherwise payable to Executive (i) constitute
“parachute payments” within the meaning of Section 280G of the Code and (ii) but
for this Section 7(b), would be subject to the excise tax imposed by Section
4999 of the Code, then Executive’s severance and other benefits provided for in
this Agreement or otherwise payable to the Executive will be
either:
(i) delivered
in full, or
(ii) delivered
as to such lesser extent which would result in no portion of such severance or
other benefits being subject to excise tax under Section 4999 of the
Code,
whichever
of the foregoing amounts, taking into account the applicable federal, state and
local income taxes and the excise tax imposed by Section 4999, results in the
receipt by Executive on an after-tax basis, of the greatest amount of severance
or other benefits, notwithstanding that all or some portion of such severance or
other benefits may be taxable under Section 4999 of the Code.
Any
reduction in payments and/or benefits required by this Section 7(b) shall occur
in the following order: (1) reduction of vesting acceleration of
"out-of-the-money" stock options or stock appreciation rights, (2) reduction of
cash payments; (3) reduction of non-cash/non-Compensatory Equity benefits paid
or provided to Executive and (4) reduction of vesting acceleration of
Compensatory Equity (other than "out-of-the-money" stock options or stock
appreciation rights); and, in the event items described in (2) or (3) are to be
reduced, reduction shall occur in reverse chronological order such that the
payment or benefit owed on the latest date following the occurrence of the event
triggering the excise tax will be the first payment to be reduced (with
reductions made pro-rata in the event payments are owed at the
same time) In the event that acceleration of vesting of Compensatory
Equity is to be reduced, such acceleration of vesting shall be cancelled in a
manner such as to obtain the best economic benefit for Executive (with
reductions made pro-rata if economically equivalent), as determined by the
accounting firm described below.
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In no
event will Executive exercise any discretion with respect to the ordering of any
reduction of payments or benefits pursuant to this Section 7(b).
The
accounting firm engaged by the Company for general audit purposes as of the day
prior to the effective date of the Change of Control shall perform the foregoing
calculations. If the accounting firm so engaged by the Company is
also serving as accountant or auditor for the individual, entity or group which
will control the Company upon the occurrence of a Change of Control, the Company
shall appoint a nationally recognized accounting firm other than the accounting
firm engaged by the Company for general audit purposes to make the
determinations required hereunder. The Company shall bear all
expenses with respect to the determinations by such accounting firm required to
be made hereunder.
The
accounting firm engaged to make the determinations hereunder shall provide its
calculations, together with detailed supporting documentation, to the Company
and Executive within thirty calendar days after the date on which such
accounting firm has been engaged to make such determinations or such other time
as requested by the Company or Executive. If the accounting firm
determines that no excise tax under Section 4999 of the Code is payable with
respect to a Payment, it shall furnish the Company and Executive with an opinion
reasonably acceptable to Executive that no such excise tax under Section 4999 of
the Code will be imposed with respect to such Payment. Any good faith
determinations of the accounting firm made hereunder shall be final, binding,
and conclusive upon the Company and Executive.
(d) Voluntary Termination
without Good Reason; Termination for Cause. If Executive’s
employment with the Company terminates voluntarily by Executive without Good
Reason or is terminated for Cause by the Company, then (i) all further
vesting of Executive’s Compensatory Equity will terminate immediately,
(ii) all payments of compensation by the Company to Executive hereunder
will terminate immediately (except as to amounts already earned),
(iii) Executive will be paid all accrued but unpaid salary, vacation, any
earned bonuses, expense reimbursements and other benefits due to Executive
through his termination date under any Company-provided or paid plans, policies,
and arrangements, and (iv) Executive will be eligible for severance
benefits only in accordance with the Company’s then established policies and
practices.
(e) 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 Compensatory Equity
awards will terminate in accordance with the terms and conditions of the
applicable award agreement(s).
(f) 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 his 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) but only to the extent that such reduction can be accomplished
without triggering taxation of the Executive under Section
409A.
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(g) Conditions
to Receipt of Severance; No Duty to Mitigate.
(h) 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 separation from service, within the meaning of Section
409A (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 for 12 months following the date of
termination and the Company will instruct its officers and directors not to
disparage the Executive. No severance pursuant to this Agreement will
be paid or provided until the Release becomes effective.
(i) No Duty to
Mitigate. Executive will not be required to mitigate the
amount of any payment contemplated by this Agreement, nor will any earnings that
Executive may receive from any other source reduce any such
payment.
(j) No-Inducement. In
the event of a termination of Executive’s employment that otherwise would
entitle Executive to the receipt of severance and other benefits pursuant to Section
7. 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 not, solicit, induce, or influence any
person to modify their employment or consulting relationship with the Company
(the “No-Inducement”). If Executive breaches the No-Inducement, all
payments and benefits to which Executive otherwise may be entitled pursuant to
Section 7 will cease immediately.
8. Definitions.
(a) Cause. For
purposes of this Agreement, “Cause” means (i) Executive’s conviction of, or
plea of nolo contendere to, a felony, (ii) Executive’s repeated failure to
follow lawful, reasonable instructions of the Board, (iv) Executive’s
violation or breach of any fiduciary or contractual duty to the Company which
results in material damage to the Company or its business; provided that if any
of the foregoing events is capable of being cured, the Company will provide
written notice to Executive describing the nature of such event and Executive
will thereafter have 30 days to cure such event (including the opportunity to
present his case to the full Board with the assistance of his own
counsel). The foregoing shall not be deemed an exclusive list of all
acts or omissions that the Company may consider as grounds for the termination
of Executive’s employment, but it is an exclusive list of the acts or omissions
that shall be considered “Cause” for the termination of Executive’s employment
by the Company. Executive shall continue to receive the compensation
and benefits provided by this Agreement during the 30 day period after he
receives the written notice of the Company’s intention to terminate his
employment for Cause.
(b) Change of
Control. For purposes of this Agreement, “Change of Control”
means (i) a sale of all or substantially all of the Company’s assets,
(ii) any merger, consolidation, or other business combination transaction
of the Company with or into another corporation, entity, or person, other than a
transaction in which the holders of at least a majority of the shares of
voting
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(c) capital
stock of the Company outstanding immediately prior to such transaction continue
to hold (either by such shares remaining outstanding or by their being converted
into shares of voting capital stock of the surviving entity) a majority of the
total voting power represented by the shares of voting capital stock of the
Company (or the surviving entity) outstanding immediately after such
transaction, (iii) the direct or indirect acquisition (including by way of
a tender or exchange offer) by any person, or persons acting as a group, of
beneficial ownership or a right to acquire beneficial ownership of shares
representing a majority of the voting power of the then outstanding shares of
capital stock of the Company, (iv) a contested election of Directors, as a
result of which or in connection with which the persons who were Directors
before such election or their nominees cease to constitute a majority of the
Board, (v) a dissolution or liquidation of the Company or (vi) any
definition provided by the Plan.
(d) Disability. For
purposes of this Agreement, Disability shall have the same defined meaning as in
the Company’s long-term disability plan.
(e) Good
Reason. For purposes of this Agreement, “Good Reason” means
the occurrence of any of the following without Executive’s express written
consent: (i) a material reduction in Executive’s duties, titles or
responsibilities as Chief Executive Officer (including specifically if following
a Change of Control Executive is not made Chief Executive Officer of the
combined and/or successor entity), (ii) a material reduction in Executive’s
Base Salary other than a one-time reduction that in the aggregate does not
exceed 10% that also is applied to substantially all of the Company’s other
senior executives, (iii) a material reduction in Executive’s total targeted cash
compensation (equal to the aggregate of Base Salary and Target Bonus) other than
a one-time reduction that in the aggregate does not exceed 10% that also is
applied to substantially all of the Company’s other senior executives,
(iv) relocation of Executive’s primary place of business for the
performance of his duties to the Company to a location that is more than 30
miles from its location as of the Effective Date, (v) failure of the Company to
obtain the assumption of this Agreement by any successor to the Company, or
(v) any material breach or material violation of a material provision of
this Agreement by the Company (or any successor to the
Company). Notwithstanding anything in this Agreement to the contrary,
and for the sake of clarity, a reduction in Executive’s duties, titles or
responsibilities shall not be deemed to have occurred solely on account of
Executive no longer being the Chairman of the Board or having the title of
President of the Company, so long as Executive remains the Chief Executive
Officer. Notwithstanding the foregoing, before Executive may resign
for Good Reason, (A) Executive must provide the Company with written notice
within ninety (90) days of the initial event that Executive believes constitutes
“Good Reason” specifically identifying the facts and circumstances claimed to
constitute the grounds for Executive’s resignation for Good Reason and the
proposed termination date (which will not be more than forty-five (45) days
after the giving of written notice hereunder by Executive to the Company), and
(B) the Company must have an opportunity of at least thirty (30) days following
delivery of such notice to cure the Good Reason condition and the Company must
have failed to cure such Good Reason condition.
9. Indemnification and
Insurance. Executive will be covered under the Company’s
insurance policies and, subject to applicable law, will be provided
indemnification to the maximum extent permitted by the Company’s bylaws,
Certificate of Incorporation, and standard form of
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10. Indemnification
Agreement, with such insurance coverage and indemnification to be in accordance
with the Company’s standard practices for senior executive officers but on terms
no less favorable than provided to any other Company senior executive officer or
director.
11. Confidential
Information. Executive agrees to execute the Company’s
standard form of employee confidential information agreement (the “Confidential
Information Agreement”) upon commencement of employment. During the
Employment Term, Executive further agrees to execute any updated versions of the
Confidential Information Agreement (any such updated version also referred to as
the “Confidential Information Agreement”) as may be required of substantially
all of the Company’s executive officers.
12. 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.
13. 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:
General Counsel
Taleo
Corporation
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If to
Executive:
at the
last residential address known by the Company as provided by Executive in
writing.
14. Severability. If
any provision hereof becomes or is declared by a court of competent jurisdiction
to be illegal, unenforceable, or void, this Agreement will continue in full
force and effect without said provision.
15. Arbitration.
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16. General. In
consideration of Executive’s service to the Company, its promise to arbitrate
all employment related disputes, and Executive’s receipt of the compensation,
pay raises, 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) arising out of, relating to, or resulting from Executive’s service to
the Company under this Agreement or otherwise or the termination of Executive’s
service with the Company, including any breach of this Agreement, will be
subject to binding arbitration under the Arbitration Rules set forth in
California Code of Civil Procedure Section 1280 through 1294.2, including
Section 1283.05 (the “Rules”) and pursuant to California
law. 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, the California Fair Employment and Housing Act, the California
Labor Code, 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.
(a) Procedure. Executive
agrees that any arbitration will be administered by the American Arbitration
Association (“AAA”) and that a neutral arbitrator will be selected in a manner
consistent with its National Rules for the Resolution of Employment
Disputes. The arbitration proceedings will be held in San Francisco
County, California and will allow for discovery according to the rules set forth
in the National Rules for the Resolution of Employment Disputes or California
Code of Civil Procedure. Executive agrees that the arbitrator will
have the power to decide any motions brought by any party to the arbitration,
including motions for summary judgment and/or adjudication and motions to
dismiss and demurrers, prior to any arbitration hearing. Executive
agrees that the arbitrator will issue a written decision on the
merits. Executive understands the Company will pay for any
administrative or hearing fees charged by the arbitrator or AAA except that
Executive will pay the first $200.00 of any filing fees associated with any
arbitration Executive initiates. Executive agrees that the arbitrator
will administer and conduct any arbitration in a manner consistent with the
Rules and that to the extent that the AAA’s National Rules for the Resolution of
Employment Disputes conflict with the Rules, the Rules will take
precedence.
(b) Remedy. Except
as provided by the Rules, arbitration will be the sole, exclusive, and final
remedy for any dispute between Executive and the
Company. Accordingly, except as provided for by the Rules, 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.
(c) Availability of Injunctive
Relief. In addition to the right under the Rules 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
violation of this Agreement or the
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(d) Confidentiality
Agreement or any other agreement regarding trade secrets, confidential
information, nonsolicitation or Labor Code Section 2870.
(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 Department of Fair Employment and
Housing, the Equal Employment Opportunity Commission, 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.
17. Integration. This
Agreement 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. No waiver, alteration, or
modification of any of the provisions of this Agreement will be binding unless
in writing that specifically references this Section and is signed by duly
authorized representatives of the parties hereto. With respect to
equity awards 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.
18. 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.
19. Survival. The
Confidential Information Agreement, the Company’s and Executive’s
responsibilities under Sections 7, 8, 10, 13, 15 and 16 will survive the
termination of this Agreement.
20. Headings. All
captions and section headings used in this Agreement are for convenient
reference only and do not form a part of this Agreement.
21. Tax
Withholding. All payments made pursuant to this Agreement will
be subject to withholding of applicable taxes.
22. Governing
Law. This Agreement will be governed by the laws of the State
of California (with the exception of its conflict of laws
provisions).
23. Acknowledgment. Executive
acknowledges that he has had the opportunity to discuss this matter with and
obtain advice from his 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.
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24. Counterparts. This
Agreement may be executed in counterparts, and 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.
25. Section
409A.
(a) Notwithstanding
anything to the contrary in this Agreement, no severance payments or benefits or
gross-up payments 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 and any such Deferred Payments will
be paid or, if applicable, commence to be paid within fifteen (15) days after
the expiration of the Release Deadline; provided, that the settlement of any
Compensatory Equity shall be made at the time set forth in the agreement
providing for such Compensatory Equity to the extent required to avoid taxation
under Section 409A. In addition, 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 (including but not limited to issuance of shares under
outstanding restricted stock units, performance shares or performance units, the
vesting of which is accelerated pursuant to this Agreement, if any) 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 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.
(c) 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 or any other payment or
benefit that is exempt from Section 409A 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 calendar year preceding the calendar year of Executive’s
separation
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(d) 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 (or an
exemption from) 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.
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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
25, 2010
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Title:
Corporate Secretary
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EXECUTIVE
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/s/
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Date:
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January
25, 2010
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▇. ▇▇▇▇▇▇▇▇
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[SIGNATURE
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