PERFORMANCE SHARES AGREEMENT (U.S. SERVICE PROVIDERS) Grant # ________ NOTICE OF GRANT
EXHIBIT
10.5
2009
EQUITY INCENTIVE PLAN
(U.S.
SERVICE PROVIDERS)
Grant
# ________
NOTICE OF
GRANT
Participant
Name: [NAME]
Participant
Address: [ADDRESS]
Taleo
Corporation (the “Company”) hereby awards you (the “Participant”), the number of
performance shares indicated below (the “Performance Shares”) under the
Company’s 2009 Equity Incentive Plan (the “Plan”). Unless otherwise
defined herein, the terms used but not defined in this Performance Shares
Agreement (the “Award Agreement,” including this Notice of Grant and Appendix A
hereto) will have the same defined assigned to them in the Plan. Subject to the
provisions of Appendix A (attached hereto) and of the Plan, the principal
features of this Award are as follows:
Date of
Grant ______________________________________
Vesting
Commencement
Date ______________________________________
Number of
Performance
Shares ______________________________________
Subject
to any acceleration provisions contained in the Plan or set forth below, the
Performance Shares will vest in accordance with the following
schedule:
[One-fourth
(1/4th) of the
Performance Shares shall vest on the one (1) year anniversary of the Vesting
Commencement Date, and thereafter one-sixteenth (1/16th) of the
Performance Shares shall vest on each quarterly anniversary of the Vesting
Commencement Date, subject to Participant’s remaining a Service Provider through
each applicable vesting date.]*
*Except
as otherwise provided in Appendix A [TO BE INCLUDED UNLESS THE COMPENSATION
COMMITTEE DETERMINES OTHERWISE: or in an employment or other agreement entered
into on or prior to the Date of Grant between the Company and Participant as
referenced in Section 3 of Appendix A], in the event Participant ceases to
be a Service Provider for any or no reason before Participant vests in the
Performance Shares, the unvested Performance Shares will immediately be
forfeited and Participant’s right to acquire any Shares thereunder will
immediately terminate.
PLEASE BE SURE TO READ ALL OF
APPENDIX A, WHICH CONTAINS THE SPECIFIC TERMS AND CONDITIONS OF THIS AWARD
AGREEMENT.
--
Participant
and the Company agree that this Award of Performance Shares is granted under and
governed by the terms and conditions of the Plan and this Award Agreement,
including this Notice of Grant and the Terms and Conditions of Performance
Shares, attached hereto as Appendix A, all of which are made a part of this
document. Participant has reviewed the Plan and this Award Agreement
in their entirety, has had an opportunity to obtain the advice of counsel prior
to executing this Award Agreement and fully understands all provisions of the
Plan and Award Agreement. Participant hereby agrees to accept as
binding, conclusive and final all decisions or interpretations of the
Administrator upon any questions relating to the Plan and Award
Agreement. Participant further agrees to notify the Company upon any
change in the residence address indicated above.
Participant
acknowledges and agrees that by clicking the [“ACCEPT”]OR[“ACKNOWLEDGE”] button
on the E*TRADE on-line grant agreement response page, it will act as
Participant’s electronic signature to this Award Agreement and will constitute
Participant’s acknowledgement of and agreement with all of the terms and
conditions of the Performance Shares, as set forth in this Award Agreement and
the Plan. Participant may, if he or she prefers, sign, date and
return to the Company a paper copy of this Award Agreement.
TALEO
CORPORATION
By: _________________________________
[NAME]
Title: ________________________________
--
APPENDIX
A
provides
for acceleration in the event of a change in control that is not a “change in
control” within the meaning of Section 409A, then the payment of such
accelerated portion of the Performance Shares will be made in accordance with
the timing of payment rules that apply to discretionary accelerations under
Section 4(a) of this Award Agreement. If the vesting of all or a
portion of the Performance Shares accelerate in the event of a Change in Control
that is a “change in control” within the meaning of Section 409A, then the
payment of such accelerated Performance Shares shall be paid no later than the
date that is sixty (60) days from the vesting date.
(d) It
is the intent of this Award Agreement to comply with the requirements of Section
409A so that none of the Performance Shares provided under this Award Agreement
or Shares issuable thereunder will be subject to the additional tax imposed
under Section 409A, and any ambiguities herein will be interpreted to so
comply.
Until and
unless the Administrator determines otherwise, when Shares are issued as payment
for Performance Shares, the Company (or the employing Parent or Subsidiary) will
withhold a portion of the Shares that have an aggregate market value sufficient
to pay the minimum federal, state, local and foreign income, employment, social
insurance, payroll tax and any other applicable taxes required to be withheld by
the Company (or the employing Parent or Subsidiary) with respect
to the
Shares or with respect to which the Participant has agreed to bear
responsibility (the “Tax Obligations”), unless the Company, in its sole
discretion, requires the Participant to make alternate arrangements satisfactory
to the Company for such withholdings in advance of the arising of any
withholding obligations. No fractional Shares will be withheld or issued
pursuant to the grant of Performance Shares and the issuance of Shares
thereunder; instead, the number of any Shares withheld pursuant to this Section
7 will be rounded down to the nearest whole Share and, unless determined
otherwise by the Company, any additional withholding necessary for this reason
will be done by the Company through the Participant’s paycheck or through direct
payment by the Participant to the Company in the form of cash, check or other
cash equivalent.
In
addition and to the maximum extent permitted by law, after consultation with the
Company’s Compliance Officer (as defined in the Company’s Xxxxxxx Xxxxxxx
Policy), the Administrator, in its sole discretion and pursuant to such
procedures as it may specify from time to time, may require Participant to
satisfy the Tax Obligations, in whole or in part (without limitation) by
(a) paying cash or remitting a check or providing other cash equivalent,
(b) withholding an amount necessary to pay the applicable taxes from the
Participant’s paycheck, (c) having the Company withhold otherwise deliverable
Shares having a Fair Market Value equal to the minimum amount required to be
withheld, (d) delivering to the Company already vested and owned Shares
having a Fair Market Value equal to the amount required to be withheld,
(e) selling a sufficient number of such Shares otherwise deliverable to
Participant through such means as the Company may determine in its sole
discretion (whether through a broker or otherwise) equal to the amount required
to be withheld, or (f) a combination thereof. In addition and to the
maximum extent permitted by law, the Company (or the employing Parent or
Subsidiary) has the right to retain without notice from salary or other amounts
payable to the Participant, cash having a sufficient value to satisfy the Tax
Obligations that cannot be satisfied through the withholding of otherwise
deliverable Shares. In addition and to the maximum extent permitted
by law, the Company (or the employing Parent or Subsidiary) has the right to
retain without notice from salary or other amounts payable to the Participant,
cash having a sufficient value to satisfy Tax Obligations that cannot be
satisfied through the withholding of otherwise deliverable Shares. By
accepting this Award, the Participant expressly consents to the withholding of
Shares, and to any cash or Share withholding as provided for in this
Section. All income and other taxes related to the Performance Share
award and any Shares delivered in payment thereof are the sole responsibility of
the Participant.
securities,
rights or warrants to purchase securities or shares or other securities acquired
by the exercise of such rights or warrants; provided, however, that the payment
of such new or additional awards shall be made in accordance with the same
timing of payment rules applicable to Prior Performance Shares.
11. Address for
Notices. Any notice to be given to the Company under the terms
of this Award Agreement will be addressed to the Company, in care of its
Secretary, at Taleo Corporation, 0000 Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxx 00000, or at such other address as the Company may hereafter
designate in writing.
23. Governing
Law. This Award Agreement will be governed by the laws of the
State of California, without giving effect to the conflict of law principles
thereof. For purposes of litigating any dispute that arises under
this Award of Performance Shares or this Award Agreement, the parties hereby
submit to and consent to the jurisdiction of the State of California, and agree that such
litigation will be conducted in the courts of Alameda County, California, or the federal courts for
the United States for the Northern District of California, and no other courts,
where this Award of Performance Shares is made and/or to be
performed.
and/or
Subsidiaries may each further transfer Data to any third parties assisting the
Company in the implementation, administration and management of the
Plan. The Participant understands that these recipients may be
located in the European Economic Area, or elsewhere, such as in the U.S. or
Asia. The Participant authorizes the Company to receive, possess,
use, retain and transfer the Data in electronic or other form, for the purposes
of implementing, administering and managing his or her participation in the
Plan, including any requisite transfer to a broker or other third party with
whom he or she may elect to deposit any Shares of stock acquired from this Award
of Performance Shares of such Data as may be required for the administration of
the Plan and/or the subsequent holding of Shares on his or her
behalf. The Participant understands that he or she may, at any time,
view the Data, require any necessary amendments to the Data or withdraw the
consent herein in writing by contacting the Human Resources department for the
Company and/or its applicable Parent or Subsidiary.
o 0 o