TALEO CORPORATION KATY MURRAY FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT
EXHIBIT
10.3
TALEO
CORPORATION
▇▇▇▇
▇▇▇▇▇▇ FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This
agreement (the “Agreement”) is entered into as of January 1, 2010 by and between
Taleo Corporation, a Delaware corporation, (the “Company”) and ▇▇▇▇ ▇▇▇▇▇▇
(“Executive”) and amends and restates the ▇▇▇▇ ▇▇▇▇▇▇ Employment Agreement with
an Effective Date of August 4, 2006. 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 September 18, 2006 (“Employment Start Date”),
Executive will serve as Executive Vice President and Chief Financial
Officer. Executive will assume and discharge such responsibilities as
are commensurate with such position, including without limitation, accounting
and finance, investor relations, financial statement preparations and related
SEC filings, treasury and budgetary functions and related responsibilities and
duties, and, in addition, as the Chief Executive Officer may direct from time to
time consistent therewith. During Executive’s employment with Company, Executive
shall devote Executive’s full business time, efforts, 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 Company provided to Executive,
as the same are 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. Executive will report
solely and directly to the Chief Executive Officer and/or the Board of Directors
and, to the extent required by law, regulation or principles of proper corporate
governance, the audit or similar committee of the Board of Directors of the
Company (the “Board”).
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 be entitled to payment of all accrued but unpaid vacation, expense
reimbursements, and other benefits due to Executive through Executive’s
termination date under any Company-provided or paid plans, policies, and
arrangements. Executive agrees to resign from all positions that
Executive holds with the Company immediately following the termination of
Executive’s employment if Company so requests.
3. Compensation.
(a) Base
Salary. The Company shall pay Executive an annual salary of
$315,250.00 USD as compensation for Executive’s 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 Base Salary 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 Base Salary shall be incorporated into this
Agreement upon the effective date of the adjusted Base Salary.
(b) Bonus. Executive’s
annual target for the aggregate amount of annual and quarterly bonuses will be
$169,750.00 USD (“Target Bonus”). Allocation, eligibility and payment
of Target Bonus will be based upon achievement of quarterly or yearly
performance goals established in good faith and approved by the Chief Executive
Officer. Executive will have the opportunity to discuss the nature of
such performance goals with the Chief Executive Officer prior to such
performance goals being 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.
4. 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.
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. Termination and
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 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.
(b) 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 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;
(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.
(c) 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 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.
(d) 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
(e) 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.
(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 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.
(g) For
purposes of this Section 6, “Cause” means (i) any act of dishonesty
taken by Executive in the course of performing Executive’s duties hereunder,
(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 consistent with
Executive’s duties hereunder, or (v) substantial and repeated violations of
Executive’s fiduciary duties, responsibilities or obligations to
Company.
(h) For
purposes of this Section 6, “Good Reason” means without Executive’s written
consent, (i) 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 where Executive is asked
to assume substantially similar duties and responsibilities in a larger entity
after a Change in Control; (ii) 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 all of Company’s Section 16 officers; (iii)
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 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 60 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 established
performance criteria or goals set forth in good faith in a Target Bonus Schedule
shall not be a basis for Good Reason resignation.
(i) 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
(j) 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.
(k) 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.
(l) 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).
(m) 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 cash severance under any other Company plan, program, agreement,
policy, practice, or the like, cash severance payments due to Executive under
this Agreement will be correspondingly reduced. 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.
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 14 below), then the following timing of payments
will apply to such Deferred Payments, in each case subject to any delay in
payment required by the provisions of Section 14 (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 Section 14 of this Agreement, if applicable; 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 Release Deadline, or (B) Section 14 of this Agreement, if
applicable.
(b) Non-solicitation and other
terms. In the event of a termination of Executive’s employment
that otherwise would entitle Executive to the receipt of Severance pursuant to
Section 6, Executive agrees that as a condition to receipt of 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 hire, solicit, induce, or influence any
person to modify Executive’s 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 Company. Executive acknowledges that the time,
geographic and scope limitations of my obligations under this section that are
to be reflected in a separation agreement are reasonable, especially in light of
the Company’s desire to protect its Confidential Information and the Severance
and other benefits set forth herein, and 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,
then 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. 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 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.
9. 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 confidential or
proprietary information acquired by the Executive in the course of Executive’s
employment with 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 Company or of any
person, firm or corporation who or which have or shall have treated or dealt
with Company or any of its subsidiaries or affiliated companies, any other
information
(b) acquired
by the Executive regarding the methods of conducting the business of 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 Company or any company and/or entity affiliated with
Company, except to the extent that such information is already generally known
in the public domain or such disclosure is required by applicable law, rule, or
regulation, or by any governmental agency or authority or other recognized
subpoena power.
(c) Former Employer
Information. Executive agrees, during employment with 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 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 Company has received
and in the future will receive from third parties their confidential or
proprietary information subject to a duty on 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 Company’s agreement with such third
party.
(e) Assignment of
Inventions. Executive agrees to promptly
make full written disclosure to 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 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 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 me prior to my employment
with Company (collectively referred to as “Prior Inventions”), which belong to
Executive, which relate to Company’s proposed business, products or research and
development, and which are not assigned to 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 Company,
Executive incorporates into a Company product, process or machine a Prior
Invention owned by Emoloyee or in which Executive has an interest, 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 my employment with
Company. The records will be in the form of notes, sketches,
drawings, and any other format that may be specified by Company. The
records will be available to and remain the sole property of Company at all
times.
(h) Patent and Copyright
Registrations. Executive agrees to assist Company, or
its designee, at Company’s expense, in every proper way to secure 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 Company of all pertinent information and data with
respect thereto, the execution of all applications, specifications, oaths,
assignments and all other instruments which Company shall deem necessary in
order to apply for and obtain such rights and in order to assign and convey to
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 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 Company as above, then Executive hereby irrevocably designate and
appoint 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.
(i) Return of Company
Documents. Executive agrees that, at the time of leaving the
employ of Company, Executive will deliver to Company (and will not keep in my
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 me pursuant to
Executive’s employment with Company or otherwise belonging to Company, its
successors or assigns.
10. 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.
11. 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:
12. If to the
Company:
Attn: Chief Executive
Officer
Taleo Corporation
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇
If to
Executive:
at the
last residential address known by the Company as provided by Executive in
writing.
13. 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.
14. Arbitration.
(a) 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.
(b) 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 the county of
Taleo US headquarters 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.
(c) 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 unless such policy is in conflict with the explicit terms
of this Agreement, 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 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 Confidentiality Agreement or any other
agreement regarding trade secrets, confidential information, nonsolicitation,
noninducement or Labor Code §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.
15. 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.
16. 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 a writing that specifically references this Section and is signed by duly
authorized representatives of the parties hereto. Executive agrees to
work in good faith with the Company to consider amendments to this Agreement
which are necessary or appropriate to avoid imposition of any additional tax or
income recognition under Section 409A prior to the actual payment to Executive
of payments or benefits under this Agreement. Notwithstanding the
foregoing, this Agreement will be deemed amended, without any consent required
from Executive, to the extent necessary to avoid imposition of any additional
tax or income recognition pursuant to Section 409A prior to actual payments
under this Agreement to Executive. The parties agree to cooperate
with each other and to take reasonably necessary steps in this
regard. 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.
17. 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.
18. Survival. The
Company’s and Executive’s responsibilities under Sections 9 and
13 and all other provisions intended by their terms to survive the
termination of this Agreement will survive the termination of this
Agreement.
19. Headings. All
captions and section headings used in this Agreement are for convenient
reference only and do not form a part of this Agreement.
20. Tax
Withholding. All payments made pursuant to this Agreement will
be subject to withholding of applicable taxes.
21. Governing
Law. This Agreement will be governed by the laws of the State
of California (with the exception of its conflict of laws
provisions).
22. 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.
23. 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.
24. 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 than the 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 23 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 23 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 23, 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 23. The Company will bear all costs the
Accountants may reasonably incur in connection with any calculations
contemplated by this Section 23.
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
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
Date:
|
January
18, 2010
|
|
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
||||
|
Title:
Chairman and Chief Executive Officer
|
EXECUTIVE:
|
/s/
▇▇▇▇ ▇▇▇▇▇▇
|
Date:
|
January
11, 2010
|
||
|
Name:
▇▇▇▇ ▇▇▇▇▇▇
|
[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
|
Signature
of Executive:
|
/s/
▇▇▇▇ ▇▇▇▇▇▇
|
|
Printed
Name of Executive:
|
▇▇▇▇
▇▇▇▇▇▇
|
|
Date:
|
January
11, 2010
|