Amendment to Employment Agreement between Taleo Corporation and Guy Gauvin, dated December 24, 2008

 

“6.1

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) then Taleo 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 any applicable state and/or provincial and federal required withholding amounts and other lawful deductions, (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 any applicable state and/or provincial and federal required withholding amounts and other lawful deductions, and (3) Taleo will reimburse Executive 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.

 

6.2

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 takes place within one year following a Change in Control (as defined below), then Taleo 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 any applicable state and/or provincial and federal required withholding amounts and other lawful deductions, (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 any applicable state and/or provincial and federal required withholding amounts and other lawful deductions, (3) pay bonuses (at an assumed 100% on-target achievement of goal) at the rate in effect at the time of Executive’s resignation or termination of employment for a period of 12 months from the date of Executive’s resignation or termination of employment (bonuses will be prorated for any partially completed bonus periods through the 12 month period from the date of Executive’s resignation or termination of employment), less any applicable state and/or provincial and federal required withholding amounts and other lawful deductions, and (4) Taleo will reimburse Executive 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.

 

6.3

All benefits set forth in Sections 6.1 and 6.2 are collectively referred to as “Severance.”  Subject to Section 6.13 and to any required six (6) month delay pursuant to Section E of this Appendix A, 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.”

 

“6.13

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 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 in Section E of 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 Section D of this Appendix A (and provided the Release becomes effective):

 

(i)

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 6.1 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, Section D of this Appendix A; and

 

(ii)

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, Section D of this Appendix A.”

 

“8.9

Section 409A.

 

(a)

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.

 

(b)

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.

 

(c)

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.

 

(d)

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.”