exhibit_10-5.htm


     

    EXHIBIT
10.5

     

     

    

      2009
EQUITY INCENTIVE PLAN

      PERFORMANCE
SHARES AGREEMENT

      (U.S.
SERVICE PROVIDERS)

      


       

      Grant
# ________

      


      NOTICE OF
GRANT

      


      Participant
Name:  [NAME]

       

      Participant
Address:  [ADDRESS]

       

      


       

      Taleo
Corporation (the “Company”) hereby awards you (the “Participant”), the number of
performance shares indicated below (the “Performance Shares”) under the
Company’s 2009 Equity Incentive Plan (the “Plan”).  Unless otherwise
defined herein, the terms used but not defined in this Performance Shares
Agreement (the “Award Agreement,” including this Notice of Grant and Appendix A
hereto) 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:

       

       

      Date of
Grant                                    ______________________________________                            

       

      Vesting
Commencement
Date         ______________________________________                                                       

       

      Number of
Performance
Shares       ______________________________________                                                         

       

      


       

      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
(1/4th) of the
Performance Shares shall vest on the one (1) year anniversary of the Vesting
Commencement Date, and thereafter one-sixteenth (1/16th) 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 on or prior to the Date of Grant between the Company and Participant as
referenced in Section 3 of Appendix A], 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.

       


      
        
          
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      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 above.

       

       

      Participant
acknowledges and agrees that by clicking the [“ACCEPT”]OR[“ACKNOWLEDGE”] button
on the E*TRADE on-line grant agreement response page, it will act as
Participant’s electronic signature to this Award Agreement and will constitute
Participant’s acknowledgement of and agreement with all of the terms and
conditions of the Performance Shares, as set forth in this Award Agreement and
the Plan.  Participant may, if he or she prefers, sign, date and
return to the Company a paper copy of this Award Agreement.

       

      


       

      


       

      TALEO
CORPORATION

       

      


       

      By: _________________________________                                                     

       [NAME]

      


      Title: ________________________________                                                     

      



      
        
          
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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 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 20(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 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
of this Award Agreement.  No fractional Shares shall be issued under
this Award Agreement.  Subject to the provisions of Section 4 of this
Award Agreement, 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 sixty (60) days from the vesting date.  In no
event will Participant be permitted, directly or indirectly, to specify the
taxable year of payment of any Performance Shares payable under this
Agreement.

       

      3.           Vesting
Schedule.  Except as provided in Section 4 of this Award
Agreement and Section 15 of the Plan, and subject to Section 5 of this Award
Agreement, 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 written employment or other written
agreement with the Company entered into on or prior to the Date of Grant that
applies to performance shares, restricted stock units and/or restricted stock
(each of which such provision is incorporated by reference herein)], subject to
Section 15 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 of this Award Agreement, 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 Performance Shares had vested in
accordance with the vesting schedule set forth in Section 3 of this
Agreement, including any necessary application of Section 4(b) of this
Agreement (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 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 the
Participant’s termination as a Service Provider, such accelerated Performance
Shares will not be payable by virtue of such acceleration until and unless the
Participant has a “separation from service” within the meaning of Section
409A.  Further, and 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 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).


       

      (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 Performance Shares 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.

       

      (d)           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.

       

      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, (b) evidence satisfactory to the Company to establish the
validity of the transfer and compliance with any laws or regulations pertaining
to said transfer and (c) written acceptance of the terms and conditions of this
Award as set forth in this Award Agreement.

       

      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
this Award Agreement, 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 Participant 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
7 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, check or other
cash equivalent.

       

      In
addition and to the maximum extent permitted by law, after consultation with the
Company’s Compliance Officer (as defined in the Company’s Insider Trading
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 the Tax Obligations, in whole or in part (without limitation) by
(a) paying cash or remitting a check or providing other cash equivalent,
(b) withholding an amount necessary to pay the applicable taxes from the
Participant’s paycheck, (c) having the Company withhold otherwise deliverable
Shares having a Fair Market Value equal to the minimum amount required to be
withheld, (d) delivering to the Company already vested and owned Shares
having a Fair Market Value equal to the amount required to be withheld,
(e) 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 (f) 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 the Tax
Obligations that cannot be satisfied through the withholding of otherwise
deliverable Shares.  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 Tax 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 or
Service.  The Participant’s service 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 or in service to
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 or service 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.           Changes in Performance
Shares.  In the event that as a result of any dividend or other
distribution (whether in the form of cash, Shares, other securities or other
property), recapitalization, stock split, reverse stock split, reorganization,
merger, consolidation, split-up, spin-off, combination, repurchase, or exchange
of Shares or other securities of the Company, or other change in the corporate
structure of the Company affecting the Shares, the Performance Shares will be
increased, reduced or otherwise affected, and by virtue of any such event the
Participant will in his or her capacity as owner of unvested Performance Shares
which have been awarded to him or her (the “Prior Performance Shares”) be
entitled to new or additional or different shares of stock, cash or other
securities or property (other than rights or warrants to purchase securities);
such new or additional or different shares, cash or securities or property will
thereupon be considered to be unvested Performance Shares and will be subject to
all of the conditions and restrictions that were applicable to the Prior
Performance Shares pursuant to this Award Agreement and the Plan.  If
the Participant receives rights or warrants with respect to any Prior
Performance Shares, such rights or warrants may be held or exercised by the
Participant, provided that until such exercise any such rights or warrants and
after such exercise any shares or other securities acquired by the exercise of
such rights or warrants will be considered to be unvested Performance Shares and
will be subject to all of the conditions and restrictions which were applicable
to the Prior Performance Shares pursuant to the Plan and this Award
Agreement.  The Administrator in its absolute discretion at any time
may accelerate the vesting of all or any portion of such new or additional
shares of stock, cash or


      
        
          
             

          

           

        

        
           


          
            

          

        

        
           


        

      


       

      securities,
rights or warrants to purchase securities or shares or other securities acquired
by the exercise of such rights or warrants; provided, however, that the payment
of such new or additional awards shall be made in accordance with the same
timing of payment rules applicable to Prior Performance Shares.

       

      11.           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, 4140 Dublin Boulevard, Suite 400, Dublin,
California 94568, or at such other address as the Company may hereafter
designate in writing.

       

      12.           Grant is Not
Transferable.  Except to the limited extent provided in
Section 6 of this Award Agreement, 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.

       

      13.           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.

       

      14.           Additional Conditions to
Issuance of Shares.  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.

       

      15.           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 insider trading policies, and any other
applicable securities laws.


      
        
          
             

          

           

        

        
           


          
            

          

        

        
           


        

      


       

      16.           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.

       

      17.           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.

       

      18.           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.

       

      19.           Captions.  Captions
provided herein are for convenience only and are not to serve as a basis for
interpretation or construction of this Award Agreement.

       

      20.           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.

       

      21.           Entire Agreement;
Modifications to the Agreement.  This Award Agreement, together
with the provisions of any written agreement between Participant and the Company
that has been incorporated by reference herein by Section 3 of this Award
Agreement (whether entered into prior to or contemporaneously with 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.


      
        
          
             

          

           

        

        
           


          
            

          

        

        
           


        

      


       

      22.           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.

       

      23.           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 Alameda County, 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.

       

      24.           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
Subsidiaries; (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.

       

      25.           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 25.  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 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.

       

      26.           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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