Contract
Exhibit
10.3
PERFORMANCE
SHARES AGREEMENT
(U.S.
SERVICE PROVIDERS)
Grant
# ________
NOTICE OF
GRANT
Taleo
Corporation (the “Company”) hereby awards you, [NAME OF EMPLOYEE] (the
“Participant”), the number of performance shares indicated below (the
“Performance Shares”) under the Company’s 2004 Stock Plan (the
“Plan”). Unless otherwise defined herein, the terms used but not
defined in this Performance Shares Award Agreement (the “Award Agreement”) 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:
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Date
of Grant
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Vesting
Commencement Date
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Number
of Performance Shares
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Vesting
Schedule:
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 (1/4) of the Performance Shares shall
vest on the one (1) year anniversary of the Vesting Commencement Date, and thereafter one-sixteenth (1/16) 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 prior to the date of grant between the Company and Participant as
referenced in Section 3 of the Award Agreement], 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.
By
Participant’s signature and the signature of the representative of Taleo
Corporation (the “Company”) below, 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 below.
PARTICIPANT TALEO
CORPORATION
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_______________________________
[NAME]
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By: __________________________
[NAME
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Title:_____________________________
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Date:___________________________
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Date:_____________________________
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APPENDIX
A
TERMS AND CONDITIONS OF PERFORMANCE
SHARES
1. Grant. The
Company hereby grants to the Participant named in the Notice of Grant of this
Award Agreement (the “Participant”) under the Plan an Award of Performance
Shares, subject to all of the terms and conditions in this Award Agreement and
the Plan, which is incorporated herein by reference. Subject to
Section 18(c) of the Plan, in the event of a conflict between the terms and
conditions of the Plan and the terms and conditions of this Award Agreement, the
terms and conditions of the Plan will prevail.
2. Company’s Obligation to
Pay. Each Performance Share represents the right to receive a
Share on the date it vests (or at such later time indicated in this Award
Agreement). Unless and until the Performance Shares will have vested
in the manner set forth in Sections 3 or 4 of this Award Agreement or Section 15
of the Plan, Participant will have no right to payment of any such Performance
Shares. Prior to actual payment of any vested Performance Shares,
such Performance Shares will represent an unsecured obligation of the Company,
payable (if at all) only from the general assets of the Company. Any
Performance Shares that vest in accordance with Sections 3 or 4 will be paid to
Participant (or in the event of Participant’s death, to his or her to his or her
properly designated beneficiary or estate) in whole Shares, subject to
Participant satisfying any applicable tax withholding obligations as set forth
in Section 7. Subject to the provisions of Section 4, such vested
Performance Shares will be paid in Shares upon or as soon as practicable after
vesting, but in each such case within the period ending no later than the later
of (i) the end of the calendar year that includes the vesting date or (ii) the
date that is sixty (60) days from the vesting date.
3. Vesting
Schedule. Except as provided in Section 4 and Section 15 of
the Plan, and subject to Section 5, the Performance Shares awarded by this Award
Agreement will vest in accordance with the vesting provisions set forth in the
Notice of Grant attached this Award Agreement [TO BE INCLUDED UNLESS
COMPENSATION COMMITTEE DETERMINES OTHERWISE AND MODIFIED AS NEEDED TO CONFORM TO
THE APPLICABLE VESTING ACCELERATION PROVISIONS: which shall be deemed to include
any acceleration of vesting provisions included in Participant’s employment or
other agreement with the Company that applies to performance shares, restricted
stock units and/or restricted stock], subject to Section 13 of the
Plan. Performance Shares scheduled to vest on a certain date or upon
the occurrence of a certain condition will not vest in Participant in accordance
with any of the provisions of this Award Agreement, unless Participant will have
been continuously a Service Provider from the Date of Grant until the date such
vesting occurs.
4. Acceleration of
Vesting.
(a) Administrator
Discretion The Administrator, in its discretion, may accelerate the
vesting of the balance, or some lesser portion of the balance, of the unvested
Performance Shares at any time, subject to the terms of the Plan. If
so accelerated, such Performance Shares will be considered as having vested as
of the date specified by the Administrator. Subject to the provisions
of this Section 4 and Section 5, if the Administrator, in its discretion,
accelerates the vesting of the balance, or some lesser portion of the balance,
of the Performance Shares, the payment of such accelerated Performance Shares
shall be made as provided in Section 2; provided, however, if the Performance
Shares are “deferred compensation” within the meaning of Section 409A, the
payment of such accelerated Performance Shares nevertheless shall be made at the
same time or times as if such Award had vested in accordance with the vesting
schedule set forth in Section 3, including any necessary application of Section
4(b) (whether or not the Participant remains a Service Provider as of such
date(s)). Notwithstanding the foregoing, any delay in payment
pursuant to this Section 4(a) will cease upon the Participant’s death and such
payment will be made as soon as practicable after the date of Participant’s
death (and in all cases within ninety (90) days following such
death). For purposes of this Award Agreement, “Section 409A” means
Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and
any proposed, temporary or final Treasury Regulations and Internal Revenue
Service guidance thereunder, as each may be amended from time to
time.
(b) Termination as a Service
Provider. Notwithstanding anything in the Plan or this Award
Agreement to the contrary, if the vesting of the balance, or some lesser portion
of the balance, of the Performance Shares is accelerated in connection with
Participant’s termination as a Service Provider (provided that such termination
is a “separation from service” within the meaning of Section 409A, as determined
by the Company), other
than due to death, and
if (x) Participant is a “specified employee” within the meaning of Section 409A
at the time of such termination as a Service Provider and (y) the payment of
such accelerated the Performance Shares will result in the imposition of
additional tax under Section 409A if paid to Participant on or within the six
(6) month period following Participant’s termination as a Service Provider, then
the payment of such accelerated the Performance Shares will not be made until
the date six (6) months and one (1) day following the date of Participant’s
termination as a Service Provider, unless the Participant dies following his or
her termination as a Service Provider, in which case, the Performance Shares
will be paid in Shares to the Participant’s estate or properly designated
beneficiary as soon as practicable following his or her death (and in all cases
within ninety (90) days of Participant’s death). 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.
(c) Change in
Control. Notwithstanding anything in the Plan or this Award
Agreement to the contrary, if the vesting of all or a portion of the Performance
Shares accelerate (a) pursuant to Section 15(c) of the Plan in the event of a
Change in Control that is not a “change in control” within the meaning of
Section 409A or (b) pursuant to any other plan or agreement that 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 Award 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.
5. Forfeiture upon Termination
of Status as a Service Provider. Notwithstanding any contrary
provision of this Award Agreement, the balance of the Performance Shares that
have not vested as of the time of Participant’s termination as a Service
Provider for any or no reason will be forfeited and automatically transferred to
and reacquired by the Company at no cost to the Company and Participant’s right
to acquire any Shares hereunder will immediately terminate.
6. Death of
Participant. Any distribution or delivery to be made to
Participant under this Award Agreement will, if Participant is then deceased, be
made to Participant’s designated beneficiary, provided such beneficiary has been
designated prior to Participant’s death in a form acceptable to the
Administrator, or if no beneficiary survives Participant, the administrator or
executor of Participant’s estate (or such other person to whom the Performance
Shares are transferred pursuant to the Participant’s will or in accordance with
the laws of descent and distribution). Any such transferee must
furnish the Company with (a) written notice of his or her status as transferee,
and (b) evidence satisfactory to the Company to establish the validity of the
transfer and compliance with any laws or regulations pertaining to said
transfer.
7. Withholding of
Taxes.
Notwithstanding any contrary provision of this Award Agreement, no certificate
representing the Shares will be issued to Participant, unless and until
satisfactory arrangements (as determined by the Administrator) will have been
made by Participant with respect to the payment of income, employment and other
taxes which the Company determines must be withheld with respect to such
Shares. If Participant fails to make satisfactory arrangements for
the payment of any required tax withholding obligations hereunder at the time
any applicable Performance Shares otherwise are scheduled to vest pursuant to
Sections 3 or 4, Participant will permanently forfeit such Performance Shares
and any right to receive Shares thereunder and the Performance Shares will be
returned to the Company at no cost to the Company.
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 Grantee 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 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 or check.
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 such tax withholding obligation, in whole or in part (without
limitation) by (a) paying cash or remitting a check, (b) having the Company
withhold otherwise deliverable Shares having a Fair Market Value equal to the
minimum amount required to be withheld, (c) delivering to the Company already
vested and owned Shares having a Fair Market Value equal to the amount required
to be withheld, (d) 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 (e) 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
any tax withholding 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.
8. Rights as
Stockholder. Neither Participant nor any person claiming under
or through Participant will have any of the rights or privileges of a
stockholder of the Company in respect of any Shares deliverable hereunder unless
and until certificates representing such Shares (which may be in book entry
form) will have been issued, recorded on the records of the Company or its
transfer agents or registrars, and delivered to Participant (including through
electronic delivery to a brokerage account). After such issuance,
recordation and delivery, Participant will have all the rights of a stockholder
of the Company with respect to voting such Shares and receipt of dividends and
distributions on such Shares.
9. No Guarantee of Continued
Service.
(a) No Effect on
Employment. The Participant’s employment with the Company and
any Parent or Subsidiary is on an at-will basis only, subject to the provisions
of Applicable Law. Accordingly, subject to any written, express
employment contract with the Participant, nothing in this Award Agreement or the
Plan shall confer upon the Participant any right to continue to be employed by
the Company or any Parent or Subsidiary or shall interfere with or restrict in
any way the rights of the Company or the employing Parent or Subsidiary, which
are hereby expressly reserved, to terminate the employment of the Participant at
any time for any reason whatsoever, with or without good cause. Such
reservation of rights can be modified only in an express written contract
executed by a duly authorized officer of the Company or the Parent or Subsidiary
employing the Participant.
(b) Acknowledgement. PARTICIPANT ACKNOWLEDGES AND AGREES
THAT THE VESTING OF THE PERFORMANCE SHARES PURSUANT TO THE VESTING SCHEDULE
HEREOF IS EARNED ONLY BY CONTINUING AS A SERVICE PROVIDER AT THE WILL OF THE
COMPANY (OR THE PARENT OR SUBSIDIARY EMPLOYING OR RETAINING PARTICIPANT) AND NOT
THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS AWARD OF PERFORMANCE SHARES
OR ACQUIRING SHARES HEREUNDER. PARTICIPANT FURTHER ACKNOWLEDGES AND
AGREES THAT THIS AWARD AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND
THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED
PROMISE OF CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR THE VESTING PERIOD,
FOR ANY PERIOD, OR AT ALL, AND WILL NOT INTERFERE IN ANY WAY WITH PARTICIPANT’S
RIGHT OR THE RIGHT OF THE COMPANY (OR THE PARENT OR SUBSIDIARY EMPLOYING OR
RETAINING PARTICIPANT) TO TERMINATE PARTICIPANT’S RELATIONSHIP AS A SERVICE
PROVIDER AT ANY TIME, WITH OR WITHOUT CAUSE.
10. 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, 000 Xxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, or at such other address as the Company may hereafter
designate in writing.
11. Grant is Not
Transferable. Except to the limited extent provided in Section
6, this grant and the rights and privileges conferred hereby will not be
transferred, assigned, pledged or hypothecated in any way (whether by operation
of law or otherwise) and will not be subject to sale under execution, attachment
or similar process. Upon any attempt to transfer, assign, pledge,
hypothecate or otherwise dispose of this grant, or any right or privilege
conferred hereby, or upon any attempted sale under any execution, attachment or
similar process, this grant and the rights and privileges conferred hereby
immediately will become null and void.
12. Binding
Agreement. Subject to the limitation on the transferability of
this grant contained herein, this Award Agreement will be binding upon and inure
to the benefit of the heirs, legatees, legal representatives, successors and
assigns of the parties hereto.
13. Additional Conditions to
Issuance of Stock. The Company shall not be required to issue
any certificate or certificates for Shares hereunder prior to fulfillment of all
the following conditions: (a) the admission of such Shares to listing
on all stock exchanges on which such class of stock is then listed; (b) the
completion of any registration or other qualification of such Shares under any
U.S. state or federal law or under the rulings or regulations of the Securities
and Exchange Commission or any other governmental regulatory body, which the
Administrator shall, in its absolute discretion, deem necessary or advisable;
(c) the obtaining of any approval or other clearance from any U.S. state or
federal governmental agency or any other governmental regulatory body, which the
Administrator shall, in its absolute discretion, determine to be necessary or
advisable; and (d) the lapse of such reasonable period of time following the
date of vesting of the Performance Shares as the Administrator may establish
from time to time for reasons of administrative convenience. Where the Company
determines that the delivery of the payment of any Shares will violate federal
securities laws or other applicable laws, the Company will defer delivery until
the earliest date at which the Company reasonably anticipates that the delivery
of Shares will no longer cause such violation. The Company will make
all reasonable efforts to meet the requirements of any such state or federal law
or securities exchange and to obtain any such consent or approval of any such
governmental authority.
14. Restrictions on Sale of
Securities. The Shares issued as payment for vested
Performance Shares under this Award Agreement will be registered under U.S.
federal securities laws and will be freely tradable upon
receipt. However, Participant’s subsequent sale of the Shares may be
subject to any market blackout-period that may be imposed by the Company and
must comply with the Company’s xxxxxxx xxxxxxx policies, and any other
applicable securities laws.
15. Plan
Governs. This Award Agreement is subject to all terms and
provisions of the Plan. In the event of a conflict between one or
more provisions of this Award Agreement and one or more provisions of the Plan,
the provisions of the Plan will govern. Capitalized terms used and
not defined in this Award Agreement will have the meaning set forth in the
Plan.
16. Administrator
Authority. The Administrator will have the power to interpret
the Plan and this Award Agreement and to adopt such rules for the
administration, interpretation and application of the Plan as are consistent
therewith and to interpret or revoke any such rules (including, but not limited
to, the determination of whether or not any Performance Shares have
vested). All actions taken and all interpretations and determinations
made by the Administrator in good faith will be final and binding upon
Participant, the Company and all other interested persons. No member
of the Administrator will be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan or this Award
Agreement.
17. Electronic
Delivery. The Company may, in its sole discretion, decide to
deliver any documents related to Performance Shares awarded under the Plan or
future Performance Shares that may be awarded under the Plan by electronic means
or request Participant’s consent to participate in the Plan by electronic
means. Participant hereby consents to receive such documents by
electronic delivery and agrees to participate in the Plan through any on-line or
electronic system established and maintained by the Company or another third
party designated by the Company.
18. Captions. Captions
provided herein are for convenience only and are not to serve as a basis for
interpretation or construction of this Award Agreement.
19. Agreement
Severable. In the event that any provision in this Award
Agreement will be held invalid or unenforceable, such provision will be
severable from, and such invalidity or unenforceability will not be construed to
have any effect on, the remaining provisions of this Award
Agreement.
20. Entire Agreement;
Modifications to the Agreement. This Award Agreement
constitutes the entire understanding of the parties on the subjects
covered. Participant expressly warrants that he or she is not
accepting this Award Agreement in reliance on any promises, representations, or
inducements other than those contained herein. Modifications to this
Award Agreement or the Plan can be made only in an express written contract
executed by a duly authorized officer of the Company. Notwithstanding
anything to the contrary in the Plan or this Award Agreement, the Company
reserves the right to revise this Award Agreement as it deems necessary or
advisable, in its sole discretion and without the consent of Participant, to
comply with Section 409A or to otherwise avoid imposition of any additional tax
or income recognition under Section 409A in connection to this Award of
Performance Shares. Each payment and
benefit payable under this Award Agreement is intended to constitute separate
payments for purposes of Section 1.409A-2(b)(2) of the Treasury
Regulations.
21. Amendment, Suspension or
Termination of the Plan. By accepting this Award, Participant
expressly warrants that he or she has received an Award of Performance Shares
under the Plan, and has received, read and understood a description of the
Plan. Participant understands that the Plan is discretionary in
nature and may be amended, suspended or terminated by the Company at any
time.
22. 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 San Francisco Country,
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.
23. Labor
Law. By accepting this Award, the Participant acknowledges
that: (a) the grant of this Award is a one-time benefit which does not create
any contractual or other right to receive future grants of Performance Shares,
or benefits in lieu of Performance Shares; (b) all determinations with respect
to any future grants, including, but not limited to, the times when the
Performance Shares shall be granted, the number of Performance Shares subject to
each Award and the time or times when the Performance Shares shall vest, will be
at the sole discretion of the Company; (c) the Participant’s participation in
the Plan is voluntary; (d) the value of these Performance Shares is an
extraordinary item of compensation which is outside the scope of the
Participant’s employment contract, if any; (e) this award of Performance Shares
is not part of the Participant’s normal or expected compensation for purposes of
calculating any severance, resignation, redundancy, end of service payments,
bonuses, long-service awards, pension or retirement benefits or similar
payments; (f) the vesting of these Performance Shares will cease upon
termination of employment for any reason except as may otherwise be explicitly
provided in the Plan or this Award Agreement; (g) the future value of the
underlying Shares is unknown and cannot be predicted with certainty; (h) these
Performance Shares have been granted to the Participant in the Participant’s
status as a Service Provider of the Company or its Parent or one of its
Subsidiary; (i) any claims resulting from this Award of Performance Shares shall
be enforceable, if at all, against the Company; and (j) there shall be no
additional obligations for any Parent or Subsidiary employing the Participant as
a result of these Performance Shares.
24. Disclosure of Participant
Information. By accepting this Award of Performance Shares,
the Participant consents to the collection, use and transfer of personal data as
described in this Section. The Participant understands that the
Company and its Parent and Subsidiaries hold certain personal information about
him or her, including his or her name, home address and telephone number, date
of birth, social security or identity number, salary, nationality, job title,
any shares of stock or directorships held in the Company, details of all awards
of Performance Shares or any other entitlement to shares of stock awarded,
canceled, exercised, vested, unvested or outstanding in his or her favor, for
the purpose of managing and administering the Plan (“Data”). The
Participant further understands that the Company and/or its Parent and/or its
Subsidiaries will transfer Data among themselves as necessary for the purpose of
implementation, administration and management of his or her participation in the
Plan, and that the Company and/or any of its Parent 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 of stock 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.
25. Language. If
Participant has received this Award Agreement or any other document related to
the Plan translated into a language other than English and if the translated
version is different than the English version, the English version will
control.
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