Contract
Exhibit 10.34
TALEO
CORPORATION
AMENDMENT
TO EMPLOYMENT AGREEMENT
This
Amendment to the Employment Agreement (the “Amendment”) is made as of December
30, 2008, by and between Taleo Corporation (the “Company”), and Xxxx
Xxxxxxxx (“Executive”).
RECITALS
WHEREAS, the
Company and Executive are parties to a Xxxx Xxxxxxxx Employment Agreement dated
May 1, 2008 (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.
Car
Allowance. Section 3(d) of the Agreement entitled “Car
Allowance” shall be amended and restated in its entirety to provide as
follows:
“Subject
to Executive remaining an employee of the Company through each payment date, for
a period of two (2) years, Executive will receive an annual car allowance of
$12,000.00 USD, less Withholdings. Such car allowance will be paid periodically
in accordance with the Company’s normal payroll practices as in effect from time
to time (but no less frequently than once per month).”
2.
Relocation Expense
Reimbursement. The following sentence shall be added to
Section 3(e) of the Agreement entitled “Relocated Related Reimbursements,”
immediately following the last sentence of Section 3(e):
“Such tax
gross up payments, if any, will be paid be no later than the end of the calendar
year immediately following the calendar year in which Executive remits the
related taxes.”
3.
Severance. Sections
6(a) through 6(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 Executives termination date (at an assumed 100% on-target
achievement of goal), less Withholding, (2) pay a lump sum equal to 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 Withholding,
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 Executives termination date (at an assumed
100% on-target achievement of goal), less Withholding, (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 Withholding, (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 Withholding, 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 6(a) and 6(b) are collectively referred to
as “Severance.” Subject to Section 7(a) and to any required six
(6) month delay pursuant to Section 13, Severance payments, other than
reimbursements of COBRA premiums, shall be made by 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 7(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 6, in the event severance payments provided under Section
6(a) or Section 6(b) would be considered Deferred Payments (as
defined in Section 13 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 13 (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(a) or Section 6(b) that
would be considered Deferred Payments will be paid to Executive on or
before December 31 of that calendar year or such later time as required by
(A) the payment schedule applicable to each payment or benefit as set
forth in Section 6, or (B) if applicable, Section 13 of this
Agreement; 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(a) or Section 6(b) that would
be considered Deferred Payments will be paid on the first payroll date to
occur during the calendar year following the calendar year in which such
separation of service occurs or such later time as required by
(A) the payment schedule applicable to each payment or benefit as set
forth in Section 6, (B) the Release Deadline, or (C) if
applicable, Section 13 of this
Agreement.”
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5.
Section
409A. Section 13 of the Agreement entitled “Section 409A”
shall be amended and restated in its entirety to provide as
follows:
“13.
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 14 of the Agreement entitled
“Integration,” immediately following the last sentence of Section
14:
“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.
Schedule
B. Schedule B of the Agreement entitled “Relocation Related
Reimbursements,” as amended and restated as Schedule B-1, is further amended and
restated in its entirety to provide as follows:
“The attached Schedule B-2 supersedes
and replaces Schedule B to the Agreement entered into between Xxxx Xxxxxxxx
and Taleo Corporation as of May 1, 2008 and the Schedule B-1
entered into between Xxxx Xxxxxxxx and Taleo Corporation on or about July 31,
2008.
Schedule
B-2
Relocation Related
Reimbursements
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Relocation
Reimbursement Item
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Visa
Costs: 3 Year L-1 Visa
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Rent
Payment: up to $7,000 per month for up to 2
years
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Air
fare for travel between Europe and the San Francisco Bay area for family
members for two years: up to $26,000 USD per year.
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Moving
house hold goods to USA: up to $10,000
Moving
house hold goods back to UK (“Return Reimbursements”): all reasonable
expenses*
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Storage
up to 3 months: up to $5,000
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Home
search trip for family of 2. Air fare from Europe to San Francisco Bay
area: up to $12,000 USD.
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Relocation
to US for family of 2. Air fare from Europe to the San Francisco Bay area:
up to $6,000 USD.
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Miscellaneous
relocation expenses: $7,000
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Corporate
housing for up to 3 months: up to $3,500 per
month
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Except
with respect to the Return Reimbursements, the intent of the above
relocation-reimbursements has always been and continues to be that you are
required to remain an employee through the date of reimbursement of any of the
above expenses. Such reimbursements are intended to be exempt from
the requirements of Section 409A under the “short-term deferral”
rule.
* All
Return Reimbursement expenses must be incurred while you are a Taleo employee or
within six (6) months following your separation from service. With respect to
the taxable portion of any such Return Reimbursements, (a) any such
reimbursements shall be made no later than the last day of the calendar year
that immediately follows the calendar year in which you incurred the expense;
(b) such reimbursement shall not be subject to liquidation or exchange for
another benefit or payment; and (c) the reimbursement provided to you in
any calendar year shall not affect the expenses eligible for reimbursement or
in-kind benefits to be provided in any other calendar year. Such
reimbursements are intended to constitute compliant deferred compensation
payable on a specified date or fixed schedule in accordance with the
requirements set forth under Treasury Regulation Section
1.409A-3(i)(1)(iv). You and the Company agree to work together in
good faith to consider amendments to the Schedule B-2 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 you under Section 409A.”
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).
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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
XXXXXXXX
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TALEO
CORPORATION
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/s/ Xxxx Xxxxxxxx
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/s/ Xxxx Xxxxxx
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Signature
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Signature
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Xxxx Xxxxxxxx
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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 Xxxxxxxx Employment Agreement)
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