TALEO CORPORATION AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit 10.32
TALEO
CORPORATION
AMENDMENT
TO EMPLOYMENT AGREEMENT
This
Amendment to the Employment Agreement (the “Amendment”) is made as of December
26, 2008, by and between Taleo Corporation (the “Company”), and Xxxx Xxxxxx
(“Executive”).
RECITALS
WHEREAS, the
Company and Executive are parties to a Xxxx Xxxxxx Employment Agreement dated
August 4, 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”), 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.
Bonus
Opportunity. The following sentence shall be added to Section
3(b) of the Agreement entitled “Bonus,” immediately following the last sentence
of Section 3(b) 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 Company’s fiscal year
in which such bonus is earned, or (ii) the end of the calendar year in which
such bonus is earned.”
2.
Relocation Expense
Reimbursement. The following sentence shall be added to
Section 6 of the Agreement entitled “Relocation Reimbursement,” immediately
following the last sentence of Section 6 of the Agreement:
“It is
the understanding of the Company and Executive that in order for Executive to
receive such relocation reimbursement payments, Executive must be an employee
through the date of each such payment.”
3.
Severance. Sections
7(a) through 7(c) of the Agreement shall be amended and restated in their
entirety to provide as follows:
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“(a)
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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) then Company or the successor corporation
will (1) pay prorated bonuses for any partially completed bonus periods
through Executive’s termination date (at an assumed 100% on-target
achievement of goal), less any applicable state and federal required
withholding amounts and other lawful deductions, (2) pay six (6) 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
federal required withholding amounts and other lawful deductions, and (3)
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 6 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.
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(b)
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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
one year following a Change in Control (as defined below), then Company or
the successor corporation will (1) pay prorated bonuses for any partially
completed bonus periods through Executive’s termination date (at an
assumed 100% on-target achievement of goal), less any applicable state and
federal required withholding amounts and other lawful deductions, (2) pay
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 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 federal required withholding
amounts and other lawful deductions, and (4) 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.
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(c)
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All
benefits set forth in Sections 7(a) and 7(b) are collectively referred to
as “Severance.” Subject to Section 8(a) and to any required six
(6) month delay pursuant to Section 15, 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.”
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4.
Release of
Claims. Section 8(a) of the Agreement entitled “Separation
Agreement and Release of Claims” shall be amended and restated in its entirety
to provide as follows:
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“(a)
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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 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 7, in the event severance payments provided under Section
7(a) or Section 7(b) would be considered Deferred Payments (as defined in
Section 15 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 15 (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 7(a) or Section 7(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 15 of this Agreement, if applicable;
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 7(a) or Section 7(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 15 of this Agreement,
if applicable.”
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5.
Section
409A. Section 15 of the Agreement entitled “Section 409A”
shall be amended and restated in its entirety to provide as
follows:
“15.
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 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.
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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 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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6.
Integration. The
following sentence shall be added to Section 16 of the Agreement entitled
“Integration,” immediately following the last sentence of Section
16:
“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.”
7.
280G Best
Results. The following sentences shall be added to Section 24
of the Agreement entitled “Parachutes,” immediately following the last sentence
of Section 24:
“Any
reduction in payments and/or benefits required by this Section 24 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.”
8.
Full Force and
Effect. To the extent not expressly amended hereby, the
Agreement shall remain in full force and effect.
9.
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.
10. 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.
11. Amendment. Any
provision of this Amendment may be amended, waived or terminated by a written
instrument signed by the Company and Executive.
12. Governing
Law. This Amendment shall be governed by the laws of the State
of California (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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XXXX
XXXXXX
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TALEO
CORPORATION
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/s/ Xxxx Xxxxxx
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/s/ Xxxx Xxxxxx
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Signature
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Signature
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Xxxx 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 Xxxx Xxxxxx Employment Agreement)
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