{"id":38592,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/change-in-control-agreement-unocal-corp-and-timothy-h-ling.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"change-in-control-agreement-unocal-corp-and-timothy-h-ling","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/change-in-control-agreement-unocal-corp-and-timothy-h-ling.html","title":{"rendered":"Change in Control Agreement &#8211; Unocal Corp. and Timothy H. Ling"},"content":{"rendered":"<pre>\n\n                          CHANGE IN CONTROL AGREEMENT\n\n\n     This Change in Control Agreement (the 'Agreement') is made effective as of\nJuly 28, 1998 by and between Unocal Corporation, a Delaware corporation (the\n'Company') and Timothy H. Ling, Chief Financial Officer ('Employee').\n\n     WHEREAS, if certain corporate transactions were proposed or pending, such\npotential transactions could result in distractions to Employee's performance at\na critical period; and\n\n     WHEREAS, Employee and Company wish to enter into this agreement in order to\nprovide security to Employee as a means of maintaining performance under such\ncircumstances.\n\n     THEREFORE, in consideration of the mutual promises and agreements set forth\nherein, the Company and Employee agree as follows:\n\n1.   Term\n     ----\n     1.1  The term of this Agreement (the 'Term') shall commence on July 28,\n1998 and shall be for three years, subject to earlier termination in accordance\nwith the provisions of Section 4 hereinbelow.  If the Agreement has not been\nsubject to early termination in accordance with the provisions of Section 4\nhereinbelow, beginning on July 28, 1998 and on each day thereafter, the Term\nshall automatically be extended for an additional day unless the Company\nnotifies Employee in writing that it does not wish to further extend the Term.\n\n2.   Position and Title.\n     ------------------ \n\n     2.1  The Company on behalf of itself and its affiliates and subsidiaries\nhereby employs Employee as Chief Financial Officer, and Employee hereby accepts\nsuch employment.\n\n     2.2  Employee shall devote substantially all of his efforts on a full time\nbasis to the business and affairs of the Company and shall not engage in any\nbusiness or perform any services in any capacity whatsoever adverse to the\ninterests of the Company.\n\n     2.3  Employee shall at all times faithfully, industriously, and to the best\nof his ability, experience, and talents, perform all of the duties of his\nposition.\n\n3.   Compensation.\n     ------------ \n\n     3.1  As of the date of this Agreement, Employee's annual base salary is\n$405,000.  Employee's base salary and performance shall be reviewed periodically\nat intervals approved by the Management Development and Compensation Committee\nof the Board of Directors of the Company (the 'Committee'), and Employee's base\nsalary may be increased from time to time based on merit or such other\nconsideration as the Committee may deem appropriate.\n\n4.  Termination of Employment Without Cause\n    ---------------------------------------\n\n \n                                      -2-\n\n\n     4.1  Employee is an at-will employee of the Company. However, for purposes\n          of this Agreement only, a Termination Without Cause shall exist if\n          Employee is terminated for any reason except:\n\n     (1)  Conduct or action by Employee which, in the opinion of a majority of\n          the Board of Directors, is materially harmful to the Company;\n\n     (2)  Willful failure by Employee to follow an order of the Board, except in\n          such case where the Employee believes in good faith that following\n          such order would be materially detrimental to the interests of the\n          Company;\n\n     (3)  Employee's conviction of a felony.\n\n          Additionally, if, (a) Employee's annual base salary is reduced below\nthe amount stated in Paragraph 3.1 hereinabove (unless such reduction is part of\nan across the board reduction affecting all Company executives with a comparable\nlevel of responsibility, title or stature), or (b) Employee is removed from or\ndenied participation in incentive plans, benefit plans, or perquisites generally\nprovided by the Company to other executives with a comparable level of\nresponsibility, title or stature, or (c) Employee's target incentive\nopportunity, benefits or perquisites are reduced relative to other executives\nwith comparable responsibility, title or stature, or (d) Employee is assigned\nduties or obligations inconsistent with his position with the Company or (e)\nThere is a significant change in the nature and scope of Employee's authority or\nhis overall working environment, such event shall be considered a Termination\nWithout Cause.\n\n5.  Change of Control.\n    ----------------- \n\n    5.1  In the event of a Change of Control of the Company at any time during\n    the Term of Agreement, and Employee's Termination Without Cause within a\n    period of thirty-six (36) Months following the date of a Change of Control,\n    Employee shall be entitled to the following Benefits:\n\n    (1)  The Company shall pay Employee a lump-sum severance amount within\n         thirty (30) days following Termination Without Cause equal to three (3)\n         times the sum of (a) the higher of the Employee's annual base salary at\n         the time of Termination Without Cause or the annual base salary stated\n         in paragraph 3.1 hereinabove, and (b) the average annual Bonus earned\n         by Employee (whether paid in cash or deferred for the two completed\n         fiscal years immediately Prior to Termination Without Cause, reduced by\n         the amount of any Unocal Employee Redeployment Program and\/or Unocal\n         Termination Allowance benefits payable to Employee.\n\n    (2)  The Company shall provide for Employee to receive medical, dental,\n         life, and disability insurance coverage for three (3) years following\n         Termination Without Cause at levels and a net cost to Employee\n         comparable to that provided to Employee immediately prior to Employee's\n         Termination Without Cause.\n\n    (3) The Company shall pay Employee an additional lump-sum severance\n         amount\n\n\n \n                                      -3-\n\n             thirty (30) days following Employee's Termination Without Cause\n             equal to three (3) times greater of his current base salary or that\n             referenced in Paragraph 3.1 hereabove multiplied by 6 percent\n             (0.06).\n\n  5.2   For purposes of this Agreement a 'Change of Control' shall mean:\n:\n        (a)   The acquisition by any individual, entity or group (within the\nmeaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,\nas amended (the 'Exchange Act')(a 'Person') of beneficial ownership (within the\nmeaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of\neither (i) the then outstanding shares of common stock of the Company (the\n'Outstanding Company Common Stock') or (ii) the combined voting power of the\nthen outstanding voting securities of the Company entitled to vote generally in\nthe election of directors (the 'outstanding Company Voting Securities');\nprovided, however, that for purposes of this subsection (a), the following\nacquisitions shall not constitute a Change of Control: (i) any acquisition\ndirectly from the Company, (ii) any acquisition by the Company, (iii) any\nacquisition by an employee benefit plan (or related trust) sponsored or\nmaintained by the Company or any corporation controlled by the Company or (iv)\nany acquisition by any corporation pursuant to a transaction which complies with\nclauses (i), (ii) and (iii) of subsection (c) of this Section 5.2; or\n\n        (b)   Individuals who, as of the date hereof, constitute the Board (the\n'Incumbent Board') cease for any reason to constitute at least a majority of the\nBoard; provided, however, that any individual becoming a director subsequent to\nthe date hereof whose election, or nomination for election by the Company's\nshareholders, was approved by a vote of at least a majority of the directors\nthen comprising the Incumbent Board shall be considered as though such\nindividual were a member of the Incumbent Board, but excluding, for this\npurpose, any such individual whose initial assumption of office occurs as a\nresult of an actual or threatened election contest with respect to the election\nor removal of directors or other actual or threatened solicitation of proxies or\nconsents by or on behalf of a Person other than the Board; or\n\n        (c)   Consummation of a reorganization, merger or consolidation or sale\nor other disposition of all or substantially all of the assets of the Company or\nthe acquisition of assets of another corporation (a 'Business Combination'), in\neach case, unless, following such Business Combination, (i) all or substantially\nall of the individuals and entities who were the beneficial owners,\nrespectively, of the Outstanding Company Common Stock and Outstanding Company\nVoting Securities immediately prior to such Business Combination beneficially\nown, directly or indirectly, more than 50% of, respectively, the then\noutstanding shares of common stock and the combined voting power of the then\noutstanding voting securities entitled to vote generally in the election of\ndirectors, as the case may be, of the corporation resulting from such Business\nCombination (including, without limitation, a corporation which as a result of\nsuch transaction owns the Company or all or substantially all of the Company's\nassets either directly or through one or more subsidiaries) in substantially the\nsame proportions as their ownership, immediately prior to such Business\nCombination of the Outstanding Company Common Stock and Outstanding Company\nVoting Securities, as the case may be, (ii) no Person (excluding any corporation\nresulting from such Business Combination or any employee benefit plan (or\nrelated trust) of the Company or such corporation resulting from such Business\nCombination) beneficially owns, directly or indirectly, 20% or more of,\nrespectively, the then outstanding shares of common stock of the corporation\nresulting from such Business Combination or the combined voting power of the\nthen outstanding voting securities of such corporation except to the extent that\nsuch ownership existed prior to the Business Combination and (iii) at least a\nmajority of the members of the board of directors of the corporation resulting\nfrom such Business Combination were members of the Incumbent Board at the time\nof the execution of the initial agreement, or of the action of the Board,\nproviding for such Business Combination; or\n\n \n                                      -4-\n\n        (d)   Approval by the shareholders of the Company of a complete\nliquidation or dissolution of the Company.\n\n 5.3    Certain Additional Payments by the Company may be due as follows:\n\n        (a)   Anything in this Agreement to the contrary notwithstanding and\nexcept as set forth below, in the event it shall be determined that any payment\nor distribution by the Company or its affiliates to or for the benefit of the\nEmployee (whether paid or payable or distributed or distributable pursuant to\nthe terms of this Agreement or otherwise but determined without regard to any\nadditional payments required under this Section 5.3), (a 'Payment') would be\nsubject to the excise tax imposed by Section 4999 of the Code or any interest or\npenalties are incurred by the Employee with respect to such excise tax (such\nexcise tax, together with any such interest and penalties, are hereinafter\ncollectively referred to as the 'Excise Tax'), then the Employee shall be\nentitled to receive an additional payment (a 'Gross-Up Payment') in an amount\nsuch that after payment by the Employee of all taxes (including any interest or\npenalties imposed with respect to such taxes), including, without limitation,\nany income taxes (and any interest and penalties imposed with respect thereto)\nand Excise Tax imposed upon the Gross-Up Payment, the Employee retains an amount\nof the Gross-Up Payment equal to the Excise Tax imposed upon the Payments.\nNotwithstanding the foregoing provisions of this Section 5.3, if it shall be\ndetermined that the Employee is entitled to a Gross-Up Payment, but that the\nPayments do not exceed 110% of the greatest amount (the 'Reduced Amount') that\ncould be paid to the Employee such that the receipt of Payments would not give\nrise to any Excise Tax, then no Gross-Up Payment shall be made to the Employee\nand the Payments, in the aggregate, shall be reduced to the Reduced Amount.\n\n        (b)   Subject to the provisions of Section 5.3(c), all determinations\nrequired to be made under this Section 5.3, including whether and when a Gross-\nUp Payment is required and the amount of such Gross-Up Payment and the\nassumptions to be utilized in arriving at such determination, shall be made by\nErnst and Young or such other certified public accounting firm as may be\ndesignated by the Employee (the 'Accounting Firm') which shall provide detailed\nsupporting calculations both to the Company and the Employee within 15 business\ndays of the receipt of notice from the Employee that there has been a Payment,\nor such earlier time as is requested by the Company. In the event that the\nAccounting Firm is serving as accountant or auditor for the individual, entity\nor group effecting the Change of Control, the Employee shall appoint another\nnationally recognized accounting firm to make the determinations required\nhereunder (which accounting firm shall then be referred to as the Accounting\nFirm hereunder). All fees and expenses of the Accounting Firm shall be borne\nsolely by the Company. Any Gross-Up Payment, as determined pursuant to this\nSection 5.3, shall be paid by the Company to the Employee within five days of\nthe receipt of the Accounting Firm's determination. Any determination by the\nAccounting Firm shall be binding upon the Company and the Employee. As a result\nof the uncertainty in the application of Section 4999 of the Code at the time of\nthe initial determination by the Accounting Firm hereunder, it is possible that\nGross-Up Payments which will not have been made by the Company should have been\nmade ('Underpayment'), consistent with the calculations required to be made\nhereunder. In the event that the Company exhausts its remedies pursuant to\nSection 5.3(c) and the Employee thereafter is required to make a payment of any\nExcise Tax, the Accounting Firm shall determine the amount of the Underpayment\nthat has occurred and any such Underpayment shall be promptly paid by the\nCompany to or for the benefit of the Employee.\n\n        (c)   The Employee shall notify the Company in writing of any claim by\nthe Internal Revenue Service that, if successful, would require the payment by\nthe Company of the Gross-Up Payment. Such notification shall be given as soon as\npracticable but no later than ten business days after the Employee is informed\nin writing\n\n \n                                      -5-\n\nof such claim and shall apprise the Company of the nature of such claim and the\ndate on which such claim is requested to be paid. The Employee shall not pay\nsuch claim prior to the expiration of the 30-day period following the date on\nwhich it gives such notice to the Company (or such shorter period ending on the\ndate that any payment of taxes with respect to such claim is due). If the\nCompany notifies the Employee in writing prior to the expiration of such period\nthat it desires to contest such claim, the Employee shall:\n\n     (i)   give the Company any information reasonably requested by the Company\nrelating to such claim,\n\n     (ii)  take such action in connection with contesting such claim as the\nCompany shall reasonably request in writing from time to time, including,\nwithout limitation, accepting legal representation with respect to such claim by\nan attorney reasonably selected by the Company,\n\n     (iii) cooperate with the Company in good faith in order effectively to\ncontest such claim, and\n\n     (iv)  permit the Company to participate in any proceedings relating to such\nclaim;\n\nprovided, however, that the Company shall bear and pay directly all costs and\nexpenses (including additional interest and penalties) incurred in connection\nwith such contest and shall indemnify and hold the Employee harmless, on an\nafter-tax basis, for any Excise Tax or income tax (including interest and\npenalties with respect thereto) imposed as a result of such representation and\npayment of costs and expenses.  Without limitation on the foregoing provisions\nof this Section 5.3(c), the Company shall control all proceedings taken in\nconnection with such contest and, at its sole option, may pursue or forgo any\nand all administrative appeals, proceedings, hearings and conferences with the\ntaxing authority in respect of such claim and may, at its sole option, either\ndirect the Employee to pay the tax claimed and sue for a refund or contest the\nclaim in any permissible manner, and the Employee agrees to prosecute such\ncontest to a determination before any administrative tribunal, in a court of\ninitial jurisdiction and in one or more appellate courts, as the Company shall\ndetermine; provided, however, that if the Company directs the Employee to pay\nsuch claim and sue for a refund, the Company shall advance the amount of such\npayment to the Employee, on an interest-free basis and shall indemnify and hold\nthe Employee harmless, on an after-tax basis, from any Excise Tax or income tax\n(including interest or penalties with respect thereto) imposed with respect to\nthe such advance or with respect to any imputed income with respect to such\nadvance; and further provided that any extension of the statute of limitations\nrelating to payment of taxes for the taxable year of the Employee with respect\nto which such contested amount is claimed to be due is limited solely to such\ncontested amount.  Furthermore, the Company's control of the contest shall be\nlimited to issues with respect to which a Gross-Up Payment would be payable\nhereunder and the Employee shall be entitled to settle or contest, as the case\nmay be, any other issue raised by the Internal Revenue Service or any other\ntaxing authority.\n\n     (d)   If, after the receipt by the Employee of an amount advanced by the\nCompany pursuant to Section 5.3(c), the Employee becomes entitled to receive any\nrefund with respect to such claim, the Employee shall (subject to the Company's\nemploying with the requirements of Section 5.3 promptly pay to the Company the\namount of such refund (together with any interest paid or credited thereon after\ntaxes applicable thereto).  If, after the receipt by the Employee of an amount\nadvanced by the Company pursuant to Section 5.3(c), a determination is made that\nthe Employee shall not be entitled to any refund with respect to such claim and\nthe Company does not notify the Employee in writing of its intent to contest\nsuch denial of refund prior to the expiration of 30 days after such\ndetermination, then such advance shall be forgiven and shall not be required to\nbe repaid and the amount of such advance shall offset, to the extent thereof,\nthe amount of Gross-Up Payment required to be paid.\n\n \n                                      -6-\n\n6.   Covenants.\n     ----------\n\n     6.1  Employee agrees that any and all confidential knowledge or\ninformation, including but not limited to customer lists, books, records, data,\nformulae, specifications, inventions, processes and methods, and developments\nand improvements, which have been or may be obtained or learned by Employee in\nthe course of his employment with the Company, will be held confidential by\nEmployee, and that Employee shall not disclose the same to any person outside of\nthe Company either during his employment with the Company or after his\nemployment by the Company has terminated.\n\n     6.2  Employee agrees that upon termination of his employment with the\nCompany he will immediately surrender and turn over to the Company all books,\nrecords, forms, specifications, formulae, data, and all papers and writings\nrelating to the business of the Company and all other property belonging to the\nCompany, it being understood and agreed that the same are the sole property of\nthe Company and that Employee shall not make or retain any copies thereof.\n\n     6.3  Employee agrees that all inventions, developments or improvements\nwhich he has made or may make, conceive, invent, discover or otherwise acquire\nduring his employment with the Company in the scope of his responsibilities or\notherwise shall become the sole property of the Company.\n\n     6.4  Employee agrees to provide a release of any claims with respect to\ntermination of his or her employment on such form as requested by the Company\nupon payment of the sums provided in Section 4.3 above.\n\n7.   Miscellaneous Provisions.\n     ------------------------ \n\n     7.1  All terms and conditions of this Agreement are set forth herein, and\nthere are no warranties, agreements or understandings, express or implied,\nexcept those expressly set forth herein.\n\n     7.2  Any modification to this Agreement shall be binding only if evidenced\nin writing signed by all parties hereto.\n\n     7.3  Any notice or other communication required or permitted to be given\nhereunder shall be deemed properly given if personally delivered or deposited in\nthe United States mail, registered or certified and postage prepaid, addressed\nto the Company at 2141 Rosecrans Ave., Suite 4000, El Segundo, CA (Attention:\nGeneral Counsel), or to Employee at his or her most recent home address on file\nwith Company, or at other such addresses as may from time to time be designated\nin writing by the respective parties.\n\n     7.4  The laws of the State of California shall govern the validity of this\nAgreement, the construction of its terms, and the interpretation of the rights\nand duties of the parties involved.\n\n     7.5  In the event that any one or more of the provisions contained in this\nAgreement shall for any reason be held to be invalid, illegal or unenforceable,\nthe same shall not affect any other provision of this Agreement, but this\nAgreement shall be construed as if such invalid, illegal or unenforceable\nprovisions had never been contained herein.\n\n \n                                      -7-\n\n     7.6  This Agreement shall be binding upon, and inure to the benefit of, the\nsuccessors and assigns of the Company and the personal representatives, heirs\nand legatees of Employee.\n\n     7.7  'Bonus' refers to the Unocal Incentive Compensation Plan and any\nreplacement or successor plan thereof.\n\n     7.8  Company shall pay 90% (ninety percent) of Employee's out-of-pocket\nlitigation expenses, including reasonable attorney's fees, in connection with\nany judicial proceeding to enforce this Agreement or construe or determine the\nvalidity of this Agreement, whether or not the Employee is successful in such\nproceeding.\n\n     7.9  The term 'Company' shall include with respect to employment hereunder,\nany subsidiary or affiliate of the Company as well as any successor employer\nfollowing a Change in Control.\n\n     7.10 This Agreement succeeds and replaces that Change in Control Agreement\nwhich was effective December 8, 1997 between Company and Employee.\n\n\nIN WITNESS WHEREOF, the parties have executed this Agreement effective as of the\ndate first above written.\n\nBY:  \/s\/ FRANK C. HERRINGER\n     ------------------------------------------\n     Chairman of the Management Development and\n     Compensation Committee of the Unocal\n     Board of Directors\n\nBY:  \/s\/ TIMOTHY H. LING\n     ------------------------------------------\n     EMPLOYEE\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9186],"corporate_contracts_industries":[9409],"corporate_contracts_types":[9539,9551],"class_list":["post-38592","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-unocal-corp","corporate_contracts_industries-energy__exploration","corporate_contracts_types-compensation","corporate_contracts_types-compensation__severance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/38592","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=38592"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38592"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38592"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38592"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}