AMENDED AND RESTATED CONTRACT OF EMPLOYMENT (“AGREEMENT”) EFFECTIVE AS OF THE 1st DAY OF JANUARY 2010 (“EFFECTIVE DATE”).
EXHIBIT
10.1
AMENDED
AND RESTATED CONTRACT OF EMPLOYMENT (“AGREEMENT”) EFFECTIVE AS OF THE 1st DAY
OF JANUARY 2010 (“EFFECTIVE DATE”).
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BETWEEN:
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(hereinafter
referred to as “Taleo”)
AND: Xxx Xxxxxx
(hereinafter
referred to as the “Executive”)
PRÉAMBULE
WHEREAS
Taleo is actively involved in the area of the development of
software;
WHEREAS
the detailed research of Taleo regarding the resolution of management problems
involving recruitment has resulted in the creation and development of a certain
software;
WHEREAS
the certain software of Taleo expresses itself through the data programs and
technical documentation regarding the system;
WHEREAS
Taleo possesses a certain technical expertise which is unique and innovative to
Taleo and as such is confidential in nature;
WHEREAS
it is of paramount importance to Taleo that the Executive holds in the strictest
of confidence any and/or all confidential information which he may acquire
during his employment with Taleo;
WHEREAS Taleo wishes to employ
the Executive;
WHEREAS the Executive wishes
to be employed by Taleo.
WHEREFORE
THE PARTIES COVENANT AND AGREE AS FOLLOWS:
SECTION 1 – INTERPRETATION;
TERM.
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1.1
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The
division of this Contract of employment into articles and sections, and
the use of section titles is for convenience of reference only and shall
not affect the interpretation or construction of this
agreement.
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1.2
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This
agreement amends and restates the Contract of Employment between Taleo
(Canada) Inc. and Xxx Xxxxxx with an effective date of March 8, 2006. The
term of this Agreement shall be four (4) years from the Effective Date of
this Agreement (i.e. January 1, 2010). 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.
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SECTION 2 – TERMS OF
EMPLOYMENT
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2.1
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Subject
to the terms and conditions of this Contract of Employment, Taleo agrees
to employ the Executive in the position of Executive Vice President,
Global Services. The Executive will report to Taleo’s Chief
Executive Offer. Executive will assume and discharge such
responsibilities as are commensurate with such position and as the CEO may
direct from time to time.
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2.2
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In
addition, the Executive shall provide such reasonable services as may,
from time to time, be determined by his/her manager or such other person
as Taleo may designate, and shall provide updates on his/her activities on
a regular and timely basis or as
requested.
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2.3
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During
the term of employment, the Executive will devote his/her full time, skill
and attention to his/her duties and responsibilities and shall perform
faithfully and diligently.
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2.4
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During
the term of employment with Taleo, the Executive will not engage in any
other employment, occupation, consulting, or other business activity
directly related to the business in which Taleo is now involved or becomes
involved during the term of employment nor will the Executive engage in
any other activities that conflict with his/her obligations to
Taleo.
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2.5
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The
term of employment between Taleo and the Executive in the position of
Executive Vice President, Global Services shall be for an indeterminate
period of time beginning January 1,
2005.
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2.6
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The
Executive may be required to engage in such travel (within Canada and/or
abroad) as may be necessary to adequately perform his/her duties outlined
herein.
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SECTION 3 – COMPENSATION AND
OTHER BENEFITS
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3.1
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Base
Salary. Taleo shall pay Executive an annual salary of $227,500.00
CAD as compensation for Executive’s services (the “Base
Salary”). The Base Salary will be paid periodically in
accordance with the Taleo’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 6.8(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.
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3.2
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Bonus. Executive’s
annual target for the aggregate amount of annual and quarterly bonuses
will be $227,500.00
CAD (“Target Bonus”). Allocation, eligibility and payment of
Target Bonus will be based upon achievement of quarterly or yearly
performance goals 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 6.8(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.
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3.3
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Taleo
shall be responsible for directly making all payroll deductions as source
which may be due to the appropriate government authorities as well as
those deductions related to internal benefits
programs.
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3.4
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The
Executive agrees and authorizes Taleo to make the necessary deductions
from his compensation or any other amount which may be owing in the case
of an over payment made to the
Executive.
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3.5
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Upon
hiring the Executive will be eligible to receive medical and fringe
benefits including: life
insurance, disability insurance (short term and long term), healthcare
coverage, dental coverage, home internet access (cable modem or high speed
access) in line with Taleo programs that may be changed from time
to time. Complete details of Taleo benefit plans will be
reviewed with the Executive upon commencement of
employment. Taleo reserves the right to change its benefits
programs at any time.
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3.6
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Upon
presentation of appropriate receipts and manager approval, Taleo shall
reimburse the Executive for all ordinary and necessary business expenses
as have been reasonably and necessarily incurred, according to the Taleo’s
expense reimbursement policy.
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SECTION 4
– VACATION
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4.1
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The
Executive shall be entitled to vacation in accordance with Taleo’s
Canadian Annual Vacation Policy but not in any event less than four (4)
weeks of paid annual vacation.
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4.2
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It
is understood and agreed that the Executive must receive prior approval
from Taleo with respect to the scheduling of vacation according to the
Annual Vacation Policy.
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4.3
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The
Executive will be entitled to paid days off for the statutory holidays
established by provincial legislation in accordance with provincial
law.
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SECTION 5 – ABSENCES &
HOURS OF WORK
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5.1
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The
minimum work expectation is 40 hours per week.
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5.2
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It
is understood and agreed upon between Taleo and the Executive that the
Executive shall not be entitled to receive any remuneration whatsoever for
hours worked in excess 40 hours and that such work may be expected and
obligatory.
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SECTION 6 - TERMINATION OF
EMPLOYMENT
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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) 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:
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6.1.1 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;
6.1.2 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
6.1.3 reimbursement
costs 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
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:
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6.2.1 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;
6.2.2 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;
6.2.3 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
6.2.4 reimbursement
costs 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.” In the event Executive is entitled to Severance
under Section 6.2, Executive will not longer be entitled to Severance
under Section 6.1. Subject to Section 6.13 and to any required
six (6) month delay pursuant to Appendix A, if
applicable, 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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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 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 Section
6.4, 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.
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6.4
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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 Section 6.5, 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.
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6.5
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To
the extent the terms of Executive's option agreement
provide for terms more favorable than the ones set forth in
this Agreement, the terms of the option agreement shall
prevail.
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6.6
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For
purposes of this Section 6, “Cause” means (i) any act of
personal dishonesty taken by Executive in connection with Executive’s
employment responsibilities, (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, or (v) substantial violations of employment
or fiduciary duties, responsibilities or obligations to
Taleo.
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6.7
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For
purposes of this Section 6, “Good Reason” means (i) without
Executive’s consent, 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
a reduction where Executive are asked to assume substantially similar
duties and responsibilities in a division of a larger entity after a
Change in Control; (ii) without Executive’s consent, 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
substantially all of Taleo’s senior executives; (iii) without Executive’s
consent, Executive’s relocation to a facility or a location greater than
75 miles from Quebec, QC; or (iv) the failure of a successor entity after
a Change in Control to assume this Agreement. If Executive does
not notify Taleo in writing that Executive believes a significant
reduction of Executive’s duties, position or responsibilities has occurred
pursuant to this Section 6 within thirty 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 allocation, eligibility and payment
of Target Bonus to be set forth in a Target Bonus Schedule shall not be a
basis for Good Reason
resignation.
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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
Taleo representing fifty percent (50%) or more of the total voting power
represented by the Taleo’s then outstanding voting securities and such change in
ownership results in broad management changes at Taleo; or (ii) the consummation
of the sale or disposition by Taleo of all or substantially all of Taleo’s
assets; or (iii) the consummation of a merger or consolidation of Taleo with any
other corporation, other than a merger or consolidation which would result in
the voting securities of Taleo 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 Taleo or such
surviving entity or its parent outstanding immediately after such merger or
consolidation.
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6.8
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Notwithstanding
the above, Taleo’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.
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6.9
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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 Taleo’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).
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6.10
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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 severance or similar payments and/or
benefits under any other Taleo 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).
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6.11
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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 Section 6.14 of 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 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 Appendix A (and
provided the Release becomes
effective):
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6.11.1 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 U.S. 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, Appendix A
of this Agreement; and
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, Appendix A of this
Agreement.
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6.12
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Non-solicitation
and other terms in separation agreement. 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 Taleo (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 Taleo (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 Taleo. Executive acknowledges that the time, geographic and
scope limitations of Execuitve’s obligations under this section that are
to be reflected in a separation agreement are reasonable, especially in
light of the Taleo’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, “geographical area” shall mean (i) all cities, towns and
suburbs in Executive’s state or province or territory of residence; (ii)
all other states/provinces in the United States of America or
Canada 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 provinces,
states, cities 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.
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SECTION 7 – NONDISCLOSURE,
NON-USE & IP ASSIGNMENT
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7.1
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Confidentiality.
The Executive will not, at any time, whether during or subsequent to
his/her 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
his/her employment with Taleo, including, without limiting the generality
of the foregoing, product design, product roadmaps, future product plans,
contractual details relating to current Taleo clients, buying habits of
present and prospective clients of Taleo, pricing and sales policy,
techniques and concepts, the names of customers or prospective customers
of Taleo or of any person, firm or corporation who or which have or shall
have treated or dealt with Taleo or any of its subsidiaries or affiliated
companies, any other information acquired by the Executive regarding the
methods of conducting the business of Taleo 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 Taleo or any company and/or entity affiliated with Taleo,
except to the extent that such information is already generally known in
the public domain.
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7.2
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Former
Employer Information. Executive agrees, during employment with
Taleo, 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 Taleo 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.
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Third
Party Information. Executive recognizes that Taleo has received and
in the future will receive from third parties their confidential or proprietary
information subject to a duty on Taleo’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 Taleo consistent with Taleo’s agreement with such third
party.
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7.3
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Assignment
of Inventions. Executive agrees to promptly
make full written disclosure to Taleo, will hold in trust for the sole
right and benefit of the Taleo and hereby assigns to the Taleo, 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 Taleo
(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 Taleo and which are protectible
by copyright are “works made for hire” as that term is defined in the
relevant copyright act.
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7.4
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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 Taleo (collectively referred to as “Prior
Inventions”), which belong to Executive, which relate to Taleo’s proposed
business, products or research and development, and which are not assigned
to Taleo 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 Taleo, Executive incorporates into a Taleo
product, process or machine a Prior Invention owned by Emoloyee or in
which Executive has an interest, Taleo 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.
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7.5
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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
Taleo. The records will be in the form of notes, sketches,
drawings, and any other format that may be specified by
Taleo. The records will be available to and remain the sole
property of Taleo at all times.
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7.6
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Patent
and Copyright Registrations. Executive agrees to assist
Taleo, or its designee, at Taleo’s expense, in every proper way to secure
Taleo’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 Taleo of all pertinent
information and data with respect thereto, the execution of all
applications, specifications, oaths, assignments and all other instruments
which Taleo shall deem necessary in order to apply for and obtain such
rights and in order to assign and convey to Taleo, 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 Taleo 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 Taleo as above, then Executive hereby
irrevocably designate and appoint Taleo 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.
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7.7
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Return
of Taleo Documents. Executive agrees that, at the time of
leaving the employ of Taleo, Executive will deliver to Taleo (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 Taleo or otherwise
belonging to Taleo, its successors or
assigns.
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7.8
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SECTION 8 – GENERAL
PROVISIONS
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8.1
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The
Executive authorizes Taleo to deduct from any payment due to the Executive
at any time, including a termination payment, any amounts owed to Taleo by
reason of purchases, advances, loans or in recompense for damage to or
loss of Taleo's property or in recompense for damage to Taleo as a result
of the Executive's breach of any term of the present Contract of
Employment, save only that this provision shall be applied so as not to
conflict with any applicable
legislation.
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8.2
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The
provisions of this Contract of Employment shall be governed and
interpreted in accordance with the
laws of
the Province of Quebec.
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8.3
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The
waiver by Taleo of any breach of any provision of this Contract of
Employment by the Executive shall not operate or be construed as a waiver
of any subsequent breach by the
Executive.
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8.4
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This
Contract of Employment constitutes the entire agreement between the
parties with respect to the employment of the Executive and any and/or all
previous agreements, written or oral, express or implied between the
parties or on their behalf relating to the employment of the Executive by
Taleo are terminated and cancelled and each of the parties releases and
forever discharges the other of and from all manner of actions, causes of
action, claims and demands whatsoever under or in respect of any such
agreement. With respect to stock options, awards of restricted stock or
restricted stock units or other forms of compensatory equity 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.
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8.5
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Any
modification to this Contract of Employment must be in writing and signed
by the parties, or it shall have no effect and shall be
void.
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8.6
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In
the event that any provision in this Contract of Employment shall be
deemed void or invalid by a Court of competent jurisdiction, the remaining
provisions shall be and remain in full force and
effect.
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8.7
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The
rights which accrue to Taleo under this Contract of Employment shall pass
to its successors or assigns. The rights of the Executive under this
Contract of Employment are not assignable or transferable in any
manner.
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8.8
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Indemnification
and Insurance. Executive will be covered under the Taleo’s
insurance policies and, subject to applicable law, will be provided
indemnification to the maximum extent permitted by the Taleo’s bylaws,
Certificate of Incorporation, and standard form of Indemnification
Agreement, with such insurance coverage and indemnification to be in
accordance with the Taleo’s standard practices for senior executive
officers but on terms no less favorable than provided to any other Taleo
senior executive officer or
director.
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8.9
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The
Executive acknowledges that he has read and understands this Contract of
Employment, and further acknowledges that he has had the opportunity to
obtain independent legal advice with respect to
it.
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8.10
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This
Agreement may be executed in counterparts and may be exchanged by
facsimile or electronically scanned and emailed copy. Each such
counterpart shall be deemed to be an original and all such counterparts
together shall constitute one and the same
Agreement.
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8.11
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The
parties hereto have requested that this Contract of Employment be drafted
in the English language.
Les parties
aux présentes ont demandé à ce que le présent Contrat d'Emploi soit rédigé
en anglais.
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IN
WITNESS WHEREOF, THE PARTIES HERETO HAVE SIGNED THIS AGREEMENT
THIS 18th DAY OF
_January 2010.
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/s/
Xxxxxxx Xxxxxxxx
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/s/
Xxx Xxxxxx
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Taleo
(CANADA) INC.
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Xxx
Xxxxxx
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Signature
of Authorized Representative
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[SIGNATURE
PAGE TO XXX XXXXXX 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
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Signature
of Executive:
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/s/
Xxx Xxxxxx
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Printed
Name of Executive:
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Xxx
Xxxxxx
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Date:
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January
12th
2010
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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 U.S. 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.
The
following sections are added as Sections 8.12 and 8.13 of the Agreement,
immediately following Section 8.11:
“8.12 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 U.S. 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 U.S. 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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8.13
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Parachutes Payments
Under U.S. Tax Code. 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 U.S.
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 8.13 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.
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Unless
the Company and Executive otherwise agree in writing, any determination required
under this Section 8.13 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 8.13, 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 U.S. Internal
Revenue 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 8.13. The Company will
bear all costs the Accountants may reasonably incur in connection with any
calculations contemplated by this Section 8.13.”
