Contract
Exhibit 10.33
TALEO
CORPORATION
AMENDMENT
TO EMPLOYMENT AGREEMENT
This
Amendment to the Contract of Employment (the “Amendment”) is made as of December
24, 2008, by and between Taleo Corporation (the “Company”), and Xxx Xxxxxx
(“Executive”).
RECITALS
WHEREAS, the
Company and Executive are parties to a Contract of Employment dated
March 8, 2006 (the “Agreement”); and
WHEREAS, the
Company and Executive desire to amend certain provisions of the Agreement in
order to come into compliance with Section 409A of the Internal Revenue Code
of 1986, as amended (the “Code”), and any final regulations and official
guidance promulgated thereunder (together, “Section 409A”), in case Executive
becomes subject to U.S. tax law such that his compensation becomes or may become
subject to Section 409A, as set forth below.
NOW, THEREFORE, BE IT
RESOLVED, the Company and Executive agree that in consideration of the
foregoing and the promises and covenants contained herein, the parties agree as
follows:
AGREEMENT
1.
An Appendix A shall be
added to the Agreement as follows:
“Appendix
A
Notwithstanding
anything to the contrary set forth in the Agreement, in the event that Executive
becomes subject to U.S. taxation such that Executive becomes or may become
subject to Section 409A of the Internal Revenue Code of 1986, as amended, and
any final regulations and official guidance promulgated thereunder (together,
“Section 409A”), the following terms and conditions shall apply to this
Agreement. For the avoidance of doubt, this Appendix A shall not
become effective so long as Executive is not subject to U.S. taxation or
otherwise is exempt from the requirements of Section 409A. Reference
to any Section of the Agreement referenced in this Appendix A shall be
in reference to such Section as amended herein.
A. Bonus
Opportunity. The following sentence is added to Section 3.2 of
the Agreement entitled “Bonus,” immediately following the last sentence of
Section 3.2 of the Agreement:
“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 Taleo’s fiscal year in
which such bonus is earned, or (ii) the end of the calendar year in which such
bonus is earned.”
X. Xxxxxxxxx. Sections
6.1 through 6.3 of the Agreement are amended and restated in their entirety to
provide as follows:
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“6.1
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If
Taleo 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) then Taleo or the successor corporation
will (1) pay prorated bonuses for any partially completed bonus periods
through Executives termination date (at an assumed 100% on-target
achievement of goal), less any applicable state and/or provincial and
federal required withholding amounts and other lawful deductions, (2) pay
a lump sum equal to twelve (12) months 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/or provincial and federal
required withholding amounts and other lawful deductions, and (3) Taleo
will reimburse Executive for any applicable premiums Executive pays for
coverage for Executive and Executive’s eligible dependents for
substantially the same health insurance coverage as provided by the Taleo
plan for a period of 12 months following the termination of Executive’s
employment, or the date when Executive becomes eligible for substantially
equivalent health insurance coverage in connection with new employment or
self-employment.
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6.2
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If
Taleo 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
one year following a Change in Control (as defined below), then Taleo or
the successor corporation will (1) pay prorated bonuses for any partially
completed bonus periods through Executives termination date (at an assumed
100% on-target achievement of goal), less any applicable state and/or
provincial and federal required withholding amounts and other lawful
deductions, (2) pay a lump sum equal to twelve (12) months 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/or provincial
and federal required withholding amounts and other lawful deductions, (3)
pay bonuses (at an assumed 100% on-target achievement of goal) at the rate
in effect at the time of Executive’s resignation or termination of
employment for a period of 12 months from the date of Executive’s
resignation or termination of employment (bonuses will be prorated for any
partially completed bonus periods through the 12 month period from the
date of Executive’s resignation or termination of employment), less any
applicable state and/or provincial and federal required withholding
amounts and other lawful deductions, and (4) Taleo will reimburse
Executive for any applicable premiums Executive pays for coverage for
Executive and Executive’s eligible dependents for substantially the same
health insurance coverage as provided by the Taleo plan for a period of 12
months following the termination of Executive’s employment, or the date
when Executive becomes eligible for substantially equivalent health
insurance coverage in connection with new employment or
self-employment.
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6.3
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All
benefits set forth in Sections 6.1 and 6.2 are collectively referred to as
“Severance.” Subject to Section 6.13 and to any required six
(6) month delay pursuant to Section E of this Appendix A,
Severance payments, other than reimbursement of health insurance premiums,
shall be made by Taleo in one lump sum and shall be paid within thirty
(30) days of any such termination of
employment.”
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C. Release of
Claims. Section 6.13 of the Agreement entitled “Separation
Agreement and Release of Claims” is amended and restated in its entirety to
provide as follows:
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“6.13
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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 Taleo 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 Taleo, 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 6.1
or Section 6.2 would be considered Deferred Payments (as defined in
Section E of Appendix A 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 D of this Appendix A (and
provided the Release becomes
effective):
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(i)
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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 6.1 or Section 6.2 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 D of this
Appendix
A; and
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(ii)
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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 6.1 or Section 6.2 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 D of this Appendix
A.”
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D. Section
409A. Sections 8.9 and 8.10 of the Agreement are amended and
restated in their entirety to provide as follows:
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“8.9
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Section
409A.
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(a)
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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.
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(b)
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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 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.
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(c)
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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 Taleo’s taxable year preceding Taleo’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.
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(d)
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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 Taleo 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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E. Integration. The
following sentence is added to Section 8.4 of the Agreement, immediately
following the last sentence of Section 8.4:
“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.””
2.
Full Force and
Effect. To the extent not expressly amended hereby, the
Agreement shall remain in full force and effect.
3.
Entire
Agreement. This Amendment and the Agreement constitute the
full and entire understanding and agreement between the parties with regard to
the subjects hereof and thereof.
4.
Counterparts. This
Amendment may be executed in counterparts, all of which together shall
constitute one instrument, and each of which may be executed by less than all of
the parties to this Amendment.
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5.
Amendment. Any
provision of this Amendment may be amended, waived or terminated by a written
instrument signed by the Company and Executive.
6.
Governing
Law. This Amendment shall be governed by the laws of the
Province of Quebec (with the exception of its conflict of laws
provisions).
(Signature page
follows)
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IN WITNESS WHEREOF, the
undersigned parties have caused this Amendment to be executed as of the date
first set forth above.
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XXX
XXXXXX
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TALEO
CORPORATION
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/s/ Xxx Xxxxxx
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/s/ Xxxx Xxxxxx
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Signature
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Signature
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Xxx Xxxxxx
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Xxxx Xxxxxx
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Print
Name
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Print
Name
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VP, Legal
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Print
Title
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(Signature
page to Amendment to Xxx Xxxxxx Employment
Agreement)
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