Employment Agreement - Taleo Corp. and Jeffrey T. Carr
[TALEO LETTERHEAD]
San Francisco, November 17, 2004
Jeffrey T. Carr
RE: TERMS OF EMPLOYMENT
Dear Jeffrey,
This letter will confirm the terms of your offer of employment with Taleo
Corp., a Delaware corporation ("Taleo"). Such terms are as follows:
1. POSITION AND RESPONSIBILITIES. You will serve in the position of
Executive Vice President of Marketing and Chief Strategy Officer reporting
directly to the Chief Executive Officer. You will assume and discharge such
responsibilities as are commensurate with such position and as the Chief
Executive Officer may direct from time to time. During your employment with
Taleo, you shall devote your full time, skill and attention to your duties and
responsibilities and shall perform faithfully, diligently and competently. In
addition, you shall comply with and be bound by the operating policies,
procedures and practices of Taleo in effect from time to time during your
employment.
While Taleo cannot commit to this promotion taking place, it is well
understood that your objective is to become COO of Taleo within six to twelve
(6-12) months of your employment start date. No later than June 30, 2005, a
formal review process will take place with the CEO with a goal to assess and
transition towards this goal. In the event you are promoted to COO, your
compensation will be adjusted to reflect a Base Salary, as defined below, of
$250,000 and Incentive Compensation, as defined below, of $250,000 at 100%
achievement of goal. Concurrently, Taleo will enter into a good faith discussion
and evaluation with you regarding an appropriate increase in your equity stake
in Taleo.
2. AT-WILL EMPLOYMENT. You acknowledge that your employment with Taleo
is for an unspecified duration and constitutes at-will employment and that
either you or Taleo can terminate this relationship at any time, with or without
Cause and with or without notice.
<PAGE>
Mr. Jeffrey T.Carr
November 17, 2004
Page 2
3. COMPENSATION.
(a) In consideration of your services, you will be paid a salary
of $18,750 US per month (annualized base salary of $225,000.00 US) payable in
two monthly payments in accordance with Taleo's standard payroll practices
("Base Salary").
(b) In addition to your base salary, you will be eligible for
incentive bonuses for each fiscal quarter or fiscal year of Taleo ("Incentive
Compensation"). The bonuses will be awarded based on criteria established by
Taleo's Chief Executive Officer and approved by Taleo's Board of Directors. The
aggregate amount of your target bonuses at 100% achievement of goal for a fiscal
year will be equal to 100% of your annual base salary. The bonus for a fiscal
quarter or fiscal year will be paid in accordance with Taleo's standard
practices for payment of bonuses. For fiscal year 2005, you will be eligible to
participate in the Incentive Compensation Plan attached hereto as Attachment A,
which will be deemed to meet the requirements of this Subsection (b) for 2005.
For the fourth quarter of fiscal year 2004 (i.e., October - December of 2004),
you shall be paid a bonus equal to the quarterly bonus specified in Attachment A
at 100% achievement of goal (i.e., $45,000), prorated for the number of days you
were employed by Taleo in the fourth quarter of fiscal year 2004.
(c) If, prior to being promoted to the position of Chief
Operating Officer, Taleo terminates your employment for any reason other than
Cause or if you resign for Good Reason, then Taleo will continue to pay your
Base Salary at the rate in effect at the time of your resignation or termination
of your employment for a period of six (6) months from the date of your
resignation or termination of your employment and you shall continue to vest in
stock options in accordance with the schedule specified in Attachment C for a
period of six (6) months from the date of your resignation or termination of
your employment ("Vesting Period 1"). Such vested options shall expire ninety
(90) days after the expiration of Vesting Period 1. If, after you have been
promoted to the position of Chief Operating Officer, Taleo terminates your
employment for any reason other than Cause or if you resign for Good Reason,
then Taleo will continue to pay your Base Salary at the rate in effect at the
time of your resignation or termination of your employment for a period of six
(6) months from the date of your resignation or termination of your employment,
Taleo will pay your aggregate target bonuses under Subsection (b) above at 100%
achievement of goal for a period of six (6) months from the date of your
resignation or termination of your employment and you shall continue to vest in
stock options in accordance with the schedule specified in Attachment C for a
period of twelve (12) months from the date of your resignation or termination of
your employment ("Vesting Period 2"). Such vested options shall expire ninety
(90) days after the expiration of Vesting Period 2. If, within one (1) year
following a Change in Control (as defined in Attachment C), Taleo or the
successor corporation terminates your employment for any reason other than Cause
or if you resign for Good Reason, regardless of whether you have been promoted
to the position of Chief Operating Officer, then Taleo or the successor
corporation will continue to pay your Base Salary at the rate in effect at the
time of your resignation or termination of your employment for a period of
twelve (12) months from the date of your resignation or termination of your
employment and will pay your aggregate target bonuses under Subsection (b) above
at 100%
<PAGE>
Mr. Jeffrey T.Carr
November 17, 2004
Page 3
achievement of goal for a period of twelve (12) months from the date of
termination of your employment. Your severance benefit will be paid in
accordance with Taleo's standard payroll procedures.
(d) If Taleo terminates your employment for any reason other than
Cause or if you resign for Good Reason, then Taleo will pay you your incentive
bonus under Subsection (b) above for the fiscal year and/or quarter in which
your resignation or the termination of your employment occurs, prorated to
reflect the actual number of days of your employment in that fiscal year and/or
quarter.
(e) If Taleo terminates your employment for any reason other than
Cause or if you resign for Good Reason, and if you elect to continue your health
insurance coverage under the Consolidated Omnibus Budget Reconciliation Act
("COBRA") following the termination of your employment, then Taleo will pay the
same portion of your 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 your employment, (ii) the expiration of your continuation
coverage under COBRA or (iii) the date when you become eligible for
substantially equivalent health insurance coverage in connection with new
employment or self-employment.
(f) If your employment is terminated by Taleo with Cause, or if
you resign your employment voluntarily without Good Reason, no compensation or
other payments will be paid or provided to you that would have, or might have,
become payable to you in periods following the date when such a termination of
employment is effective. Any rights you may have under any Taleo plan regarding
Benefits, as defined below, shall be determined under the provisions of those
plans. If your employment terminates as a result of your death or disability, no
compensation or payments will be made to you other than those to which you may
otherwise be entitled under any Taleo plan regarding Benefits.
(g) For purposes of this Section 3, "Cause" means (i) any act of
personal dishonesty taken by you in connection with your responsibilities under
this agreement that is intended to result in your personal enrichment, (ii) your
conviction of a felony, (iii) any act by you that constitutes material
misconduct and is injurious to Taleo or (iv) substantial violations of
employment duties, responsibilities or obligations to Taleo that are
demonstrably willful and deliberate.
(h) For purposes of this Section 3, "Good Reason" means (i)
without your consent, a significant reduction of your duties, position or
responsibilities relative to your duties, position or responsibilities in effect
immediately prior to such reduction other than a reduction where you are asked
to assume substantially similar duties and responsibilities as the head of a
division of a larger entity or as a Section 16 officer of the parent company of
which Taleo becomes a part due to a Change in Control, (ii) without your
consent, a substantial reduction of the facilities and perquisites (including
office space and location) available to you immediately prior to such reduction,
(iii) without your consent, a reduction by Taleo of your base salary as in
effect immediately prior to such reduction, (iv) without your consent, a
material reduction by Taleo in the kind or level of employee benefits to which
you are entitled
<PAGE>
Mr. Jeffrey T.Carr
November 17, 2004
Page 4
immediately prior to such reduction, with the result that your
overall benefits package is significantly reduced, (v) without your consent,
your relocation to a facility or a location outside the San Francisco Bay Area
or (vi) any purported termination of you other than for Cause.
4. OTHER BENEFITS. You will be eligible to receive the standard
employee benefits made available by Taleo to its employees from time to time
during the term of your employment to the extent of your eligibility therefore
("Benefits"). You shall earn paid vacation at the rate of three weeks per year
of employment (which shall be consistent with Taleo's vacation policy and which
shall not accrue in excess of that allowable under the policy). In the event you
are promoted to Chief Operating Officer, you shall earn paid vacation at the
rate of four weeks per year of employment (which shall be consistent with
Taleo's vacation policy and which shall not accrue in excess of that allowable
under the policy). During your employment, you shall be permitted, to the extent
eligible, to participate in any group medical, dental, life insurance and
disability insurance plans, or similar benefit plan of Taleo that is available
to employees generally. You should note that Taleo may modify salary and
benefits from time to time as deemed necessary. Base Salary and Incentive
Compensation are not considered Benefits as that term is used in this agreement.
Taleo shall reimburse you for all reasonable business expenses actually
incurred or paid by you in the performance of your services on behalf of Taleo,
upon prior authorization and approval and upon submission of appropriate
documentation in accordance with Taleo's expense reimbursement policy.
5. PARACHUTE EXCISE TAX GROSS-UP.
(a) GROSS-UP PAYMENT. If it is determined that any payment or
distribution of any type to you or for your benefit by Taleo, any of its
affiliates, any person who acquires ownership or effective control of Taleo or
ownership of a substantial portion of Taleo's assets (within the meaning of
section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and
the regulations thereunder) or any affiliate of such person, whether paid or
payable or distributed or distributable pursuant to the terms of this offer
letter or otherwise (the "Total Payments"), would be subject to the excise tax
imposed by section 4999 of the Code or any interest or penalties with respect to
such excise tax (such excise tax and any such interest or penalties are
collectively referred to as the "Excise Tax"), then you will be entitled to
receive an additional payment (a "Gross-Up Payment") in an amount calculated to
ensure that after you pay all taxes (and any interest or penalties imposed with
respect to such taxes), including any Excise Tax, imposed upon the Gross-Up
Payment, you retain an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Total Payments, subject to Section 5(e) below.
(b) DETERMINATION BY ACCOUNTANT. All determinations and
calculations required to be made under this Section 5 will be made by an
independent accounting firm selected by you from among the largest four
accounting firms in the United States (the "Accounting Firm"). The Accounting
Firm will provide its determination (the "Determination"), together with
detailed supporting calculations regarding the amount of any Gross-Up Payment
and any other relevant matter, to you and Taleo not less than forty-five (45)
days before the date
<PAGE>
Mr. Jeffrey T.Carr
November 17, 2004
Page 5
any such Excise Tax is due (if you reasonably believe that any of the Total
Payments may be subject to the Excise Tax). If the Accounting Firm determines
that no Excise Tax is payable by you, it will furnish you with a written
statement that it has concluded that no Excise Tax is payable (including the
reasons therefor) and that you have substantial authority not to report any
Excise Tax on your federal income tax return. If a Gross-Up Payment is
determined to be payable, it will be paid to you not less than thirty (30) days
before any such Excise Tax is due. Any determination by the Accounting Firm will
be binding upon Taleo and you, absent manifest error.
(c) OVER- AND UNDERPAYMENTS. As a result of uncertainty in the
application of section 4999 of the Code at the time of the initial determination
by the Accounting Firm hereunder, it is possible that Gross-Up Payments not made
by Taleo should have been made ("Underpayment") or that Gross-Up Payments will
have been made by Taleo that should not have been made ("Overpayment"). In
either event, the Accounting Firm will determine the amount of the Underpayment
or Overpayment that has occurred. In the case of an Underpayment, the amount of
such Underpayment will promptly be paid by Taleo to you or for your benefit. In
the case of an Overpayment, you will, at the direction and expense of Taleo,
take such steps as are reasonably necessary (including the filing of returns and
claims for refund), follow reasonable instructions from, and procedures
established by, Taleo, and otherwise reasonably cooperate with Taleo to correct
such Overpayment, provided, however, that (i) you will in no event be obligated
to return to Taleo an amount greater than the net after-tax portion of the
Overpayment that you have retained or have recovered as a refund from the
applicable taxing authorities and (ii) this provision will be interpreted in a
manner consistent with the intent of Subsection (a) above, which is to make you
whole, on an after-tax basis, from the application of the Excise Tax, subject to
Section 5(e) below, it being understood that the correction of an Overpayment
may result in your repaying to Taleo an amount that is less than the
Overpayment.
(d) STOCKHOLDER APPROVAL. If no stock of Taleo is readily
tradable and the stockholder approval exemption described in section
280G(b)(5)(A)(ii) of the Code may be available for one or more payments or
distributions to you or for your benefit, then you and Taleo will use their best
efforts to seek such approval in accordance with the regulations under section
280G of the Code and to cause such exemption to apply.
(e) GROSS-UP PAYMENT CAP. Notwithstanding the foregoing or
anything in this Section 5, the total amount paid to you by Taleo as Gross-Up
Payments will not exceed $200,000.
6. CONFLICTING EMPLOYMENT. During the term of your employment with
Taleo, you 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 your employment, nor will you
engage in any other activities that conflict with your obligations to Taleo.
This provision does not preclude you from serving on the boards of directors
and/or advisory boards of companies that are not competitors of Taleo.
<PAGE>
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Mr. Jeffrey T.Carr
November 17, 2004
Page 6
7. GENERAL PROVISIONS.
(a) This offer letter will be governed by the internal
substantive laws, but not the choice of law rules, of the State of California.
(b) This offer letter along with the Exhibits A-D hereto and the
Incentive Compensation Plan attached as Attachment A, the Employment,
Confidential Information and Invention Assignment Agreement attached as
Attachment B, the Stock Option Recommendation attached as Attachment C, and the
Arbitration Agreement attached as Attachment D set forth the terms of your
employment with Taleo and supersedes any prior representations or agreements,
whether written or oral. Any modifications must be in writing and signed by an
officer of Taleo and by you. Any subsequent change or changes in your duties,
salary or other compensation will not affect the at-will nature of your
employment, the commitments you have agreed to or the enforceability, validity
or scope of this Agreement.
(c) This offer of employment is contingent upon background
verification and reference checks satisfactory to Taleo. I authorize Taleo
and/or a third party designated by Taleo, to conduct such investigations and
secure such information as is necessary to assess my background and employment
history.
(d) If you accept this offer of employment, you must provide to
Taleo documentary evidence of your identity and eligibility to work in the
United States. Such documentation must be provided to us within three (3)
business days of your date of hire, or our employment relationship with you may
be terminated.
(e) This agreement will be binding upon your heirs, executors,
administrators and other legal representatives and will be for the benefit of
Taleo, Taleo Holding and their respective successors and assigns.
8. CONTINGENCIES. This offer is contingent upon our obtaining the
following:
(a) Return of the enclosed copy of this letter, signed by you
without modification, indicating your acceptance of this offer;
(b) Return of the enclosed Arbitration Agreement, signed by you
without modification;
(c) Return of the enclosed Employment, Confidential Information
and Invention Assignment Agreement (attached to this letter as Attachment B),
signed by you without modification;
(d) Satisfactory results of background and reference checks
<PAGE>
Mr. Jeffrey T.Carr
November 17, 2004
Page 7
(e) Documentation verifying your identity and legal authority to
work in the United States no later than 3 business days after the date you
commence work.
To indicate your acceptance of this offer, please sign and date the
enclosed copy of this offer letter and the Confidentiality Agreement, and return
both to me as soon as possible. This offer shall be valid for three (3) working
days from the date of this letter. If you have any questions about this offer
letter, please call Louis Tetu, 418.524.5665 x1226.
We look forward to working with you at Taleo.
Sincerely,
Taleo Corp.
/s/ Louis Tetu
-----------------------------------
Louis Tetu, Chief Executive Officer
ACCEPTANCE:
I accept the terms of my employment with Taleo Corp. as set forth above. I
understand that this offer letter does not constitute a contract of employment
for any specified period of time and that my employment relationship may be
terminated by Taleo or me at any time with or without notice and with or without
Cause.
Monday, November 17, 2004 /s/ Jeffrey T. Carr
------------------------------------ --------------------------------------
Start date Date Jeffrey T. Carr
<PAGE>
ATTACHMENT A
TALEO CORPORATION
INCENTIVE COMPENSATION PLAN FOR 2005
The following sets forth the Incentive Compensation Plan for Jeffrey Carr, as
Executive Vice President of Marketing and Chief Strategy Officer.
HIRE DATE: November 17, 2004
BASE SALARY: $225,000
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DEFINITION:
"APPLICATION SERVICE REVENUE" is defined as all application service fees that
Taleo (sometimes hereinafter referred to as "the Company") will, assuming
performance of services described in our Application and Consulting Service
Agreements (hereinafter referred as "ACSA"), recognize as revenue on its
Statement of Operations in accordance with Generally Accepted Accounting
Principles ("GAAP") under the heading "Application Revenue" in fiscal year 2005.
Under GAAP, application revenue is recognized ratably as services are performed.
For greater clarity, Application Service Revenue is comprised of application
set-up fees, hosting fees, application service fees, maintenance fees, managed
services (i.e. Taleo Contingent), as detailed in the ACSA. However, Application
Service Revenue excludes consulting & education service revenue, referral fees,
escrow fees, perpetual license fees, resume processing set-up and service fees
and other third party services.
ANNUAL COMPENSATION:
As an example, here is what Mr. Carr's compensation would be, assuming that he
achieves all components of the variable compensation plan at:
100%
----
Base salary 225,000
Bonus on budgeted quarterly Application Service Revenue 140,000
Bonus on budgeted quarterly operating income according to GAAP 40,000
Bonus on budgeted Total Revenue according to GAAP 30,000
Bonus on budgeted operating income according to GAAP 15,000
TOTAL ANNUAL COMPENSATION 450,000
<PAGE>
QUARTERLY BONUS ON APPLICATION SERVICE REVENUE:
Mr. Carr will be entitled to receive a bonus of $35,000 per quarter (for each
full quarter of employment), based on achieving the budgeted quarterly
Application Service Revenue for each quarter of fiscal year 2005 (see Schedule
A):
% OF ATTAINMENT OF BUDGETED
QUARTERLY APPLICATION SERVICE
REVENUE % QUARTERLY BONUS
----------------------------- -----------------
Less than 95% 0%
>95% to 96% 20%
>96% to 97% 30%
>97% to 98% 45%
>98% to 99% 60%
>99% to < 100% 80%
100% to 101% 100%
>101% to 102% 130%
>102% and up 160%
For purposes of calculating the above bonus, perpetual license fees recognized
"up-front" shall be included in Application Service Revenue after reducing the
license fees by a factor of 2.9.
QUARTERLY BONUSES ON BUDGETED OPERATING INCOME:
Mr. Carr will be entitled to receive a bonus of $10,000 per quarter (for each
full quarter of employment), based on achieving the budgeted operating income
for each quarter of fiscal year 2005 (see Schedule A).
At the end of each quarter, the following table will be used to calculate the
quarterly bonus:
% OF ATTAINMENT OF BUDGETED
OPERATING INCOME % OF QUARTERLY BONUS
--------------------------- --------------------
Less than 50% 0%
>50% to 60% 20%
>70% to 80% 45%
>80% to 90% 60%
>90% to < 100% 80%
100% to 110% 100%
>110% to 120% 130%
>120% and up 160%
ANNUAL BONUS ON BUDGETED TOTAL REVENUE (ACCORDING TO GAAP):
Mr. Carr will be entitled to receive a bonus of $30,000 for fiscal year 2005,
based on achieving total revenue as recognized on Taleo's Statement of
Operations in accordance with GAAP compared to the total revenue budgeted for
fiscal year 2005 (see Schedule A).
<PAGE>
At the end of the fiscal year, the following table will be used to calculate the
annual bonus:
% OF ATTAINMENT OF BUDGETED
OPERATING INCOME % OF QUARTERLY BONUS
--------------------------- --------------------
Less than 96% 0%
> 96% to 97% 25%
> 97% to 98% 50%
> 98% to 99% 75%
> 99% to 100% 100%
> 100% to 101% 125%
> 101% to 102% 150%
ANNUAL BONUS ON BUDGETED OPERATING INCOME (ACCORDING TO GAAP):
Mr. Carr will be entitled to receive a bonus of $15,000 for fiscal year 2005,
based on achieving the budgeted operating income for fiscal year 2005.
At the end of the fiscal year, the following table will be used to calculate the
annual bonus:
% OF ATTAINMENT OF BUDGETED
OPERATING INCOME % OF ANNUAL BONUS
--------------------------- -----------------
Less than 50% 0%
> 50% to 60% 20%
> 60% to 70% 40%
> 70% to 80% 60%
> 80% to 90% 80%
> 90% to 100% 100%
> 100% to 110% 130%
> 110% to 120% 160%
> 120% and up 200%
GENERAL:
All bonuses will be paid thirty (30) days after the end of the quarter or fiscal
year.
The Vice President and Corporate Counsel is responsible for any modifications to
the standard ACSA. The CFO or CEO are the only persons authorized to execute an
ACSA. Failure to comply with this procedure will cause a cancellation of bonuses
that would otherwise be payable with respect to revenue derived from the ACSA,
and is grounds for termination of employment.
Should the Application Service Revenue used to calculate the bonus change after
the contract is signed; the bonus will be adjusted accordingly. Any bonuses
payable to Mr. Carr will be reduced accordingly within the quarter in which the
event took place.
The CFO reserves the right, at his/her sole discretion, which shall be
reasonably exercised, to withhold part or all bonus payments under this
Compensation Plan until Taleo collects monies owed by any customer if he/she
reasonably believes that a customer is delinquent in payment or if he/she
believes that a customer will become delinquent.
<PAGE>
Mr. Carr shall promptly repay any bonuses that have been paid in error. All
known bonus calculation errors as well as any other known errors must be
reported to the Vice-President of Finance promptly but no later than sixty (60)
days of the incorrect payment or Mr. Carr's receipt of knowledge of the error.
All distributions under this Compensation Plan are considered taxable
compensation income and as such, the Company shall deduct such withholding and
payroll taxes as may be required or appropriate consistent with local, state,
provincial, federal laws and other applicable laws and regulations.
This Compensation Plan constitutes the entire terms of the Company's incentive
compensation agreement with Mr. Carr for the year 2005 and may only be modified
in writing by the CFO of the Company. Any oral modifications to the 2005
Compensation Plan are void, without effect and may not be relied upon. This Plan
is effective on the first date of employment of the Mr. Carr.
Taleo reserves the right to change, add to, or modify the 2005 Compensation Plan
as business needs require. The CFO has the discretionary authority to construe
and interpret the terms and conditions of the Compensation Plan for 2005. The
CFO's determinations shall be final and binding.
Nothing in the Compensation Plan shall change the "at-will" nature of the
employment relationship between the Company and the employee. As an at-will
employee, either the Company or the employee can terminate the employment
relationship at any time, with or without notice, for any reason.
No waiver or alteration of any provision under this Plan with respect to any
obligation, right, duty or requirement, on any occasion, whether intentional or
not, shall be deemed to extend to any prior or subsequent occasion or affect in
any way any obligation, right, duty or requirement arising by virtue of any
prior or subsequent occasion.
Reviewed and approved by:
/s/ Jeffrey Carr
----------------------------------------- ------------------
Jeffrey Carr Date
/s/ Louis Tetu
----------------------------------------- ------------------
CEO Date