{"id":38630,"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-of-control-severance-agreement-goto-com-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"change-of-control-severance-agreement-goto-com-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/change-of-control-severance-agreement-goto-com-inc.html","title":{"rendered":"Change of Control Severance Agreement &#8211; GoTo.com Inc."},"content":{"rendered":"<pre>\n                                 GOTO.COM, INC.\n\n                      CHANGE OF CONTROL SEVERANCE AGREEMENT\n\n\n        This Change of Control Severance Agreement (the 'Agreement') is made and\nentered into effective as of ___________, 1999 (the 'Effective Date'), by and\nbetween _____________________ (the 'Employee') and GoTo.com, Inc., a Delaware\ncorporation (the 'Company'). Certain capitalized terms used in this Agreement\nare defined in Section 1 below.\n\n\n                                 R E C I T A L S\n\n        A.     The Company from time to time may be presented with the \npossibility of engaging in a Change of Control transaction. The Board of\nDirectors of the Company (the 'Board') recognizes that such consideration can be\na distraction to the Employee and can cause the Employee to consider alternative\nemployment opportunities.\n\n        B.     The Board believes that it is in the best interests of the \nCompany and its shareholders to provide the Employee with an incentive to\ncontinue his employment and to maximize the value of the Company upon a Change\nof Control for the benefit of its shareholders.\n\n        C.     In order to provide the Employee with enhanced financial security\nand sufficient encouragement to remain with the Company notwithstanding the\npossibility of a Change of Control, the Board believes that it is imperative to\nprovide the Employee with certain severance benefits upon the Employee's\ntermination of employment (in certain circumstances) following a Change of\nControl.\n\n\n                                   AGREEMENT\n\n        In consideration of the mutual covenants herein contained and the\ncontinued employment of Employee by the Company, the parties agree as follows:\n\n        1.     Definition of Terms.  The following terms referred to in this \nAgreement shall have the following meanings:\n\n               (a)  Cause. 'Cause' shall mean (i) any act of personal dishonesty\ntaken by the Employee in connection with his responsibilities as an employee\nwhich is intended to result in substantial personal enrichment of the Employee,\n(ii) Employee's conviction of a felony which the Board reasonably believes has\nhad or will have a material detrimental effect on the Company's reputation or\nbusiness, (iii) a willful act by the Employee which constitutes misconduct and\nis injurious to the \n\n\n\n\nCompany, and (iv) continued willful violations by the Employee of the Employee's\nobligations to the Company after there has been delivered to the Employee a\nwritten demand for performance from the Company which describes the basis for\nthe Company's belief that the Employee has not substantially performed his\nduties.\n\n               (b)  Change of Control. 'Change of Control' shall mean the\noccurrence of any of the following events:\n\n                    (i)       the approval by shareholders of the Company of a \nmerger or consolidation of the Company with any other corporation, other than a\nmerger or consolidation which would result in the voting securities of the\nCompany outstanding immediately prior thereto continuing to represent (either by\nremaining outstanding or by being converted into voting securities of the\nsurviving entity) more than fifty percent (50%) of the total voting power\nrepresented by the voting securities of the Company or such surviving entity\noutstanding immediately after such merger or consolidation;\n\n                    (ii)      the approval by the shareholders of the Company of\na plan of complete liquidation of the Company or an agreement for the sale or\ndisposition by the Company of all or substantially all of the Company's assets;\nor\n\n                    (iii)     any 'person' (as such term is used in Sections \n13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) becoming the\n'beneficial owner' (as defined in Rule 13d-3 under said Act), directly or\nindirectly, of securities of the Company representing 50% or more of the total\nvoting power represented by the Company's then outstanding voting securities.\n\n               (c)  Compensation Continuation Period. 'Compensation Continuation\nPeriod' shall mean the period of time commencing with termination of the\nEmployee's employment as a result of Involuntary Termination at anytime within\ntwelve (12) months after a Change of Control and ending with the expiration of\nsix (6) months following the date of the Employee's termination.\n\n               (d)  Involuntary Termination. 'Involuntary Termination' shall \nmean termination of Employee's employment with the Company immediately following\nany of the following: (i) a reduction by the Company of the Employee's base\nsalary as in effect immediately prior to such reduction; (ii) a material\nreduction by the Company in the kind or level of employee benefits to which the\nEmployee is entitled immediately prior to such reduction with the result that\nthe Employee's overall benefits package is significantly reduced; (iii) without\nthe Employee's express written consent, the relocation of the Employee to a\nfacility or a location more than fifty (50) miles from his current location; or\n(iv) any purported termination of the Employee by the Company which is not\neffected for Cause.\n\n               (e)  Termination Date. 'Termination Date' shall mean the \neffective date of any notice of termination delivered by one party to the other\nhereunder.\n\n        2.     Term of Agreement. This Agreement shall terminate upon the date \nthat all obligations of the parties hereto under this Agreement have been\nsatisfied.\n\n\n                                      -2-\n\n\n        3.     At-Will Employment. The Company and the Employee acknowledge that\nthe Employee's employment is and shall continue to be at-will, as defined under\napplicable law. If the Employee's employment terminates for any reason, the\nEmployee shall not be entitled to any payments, benefits, damages, awards or\ncompensation other than as provided by this Agreement, or as may otherwise be\nestablished under the Company's then existing employee benefit plans or policies\nat the time of termination.\n\n        4.     Severance Benefits.\n\n               (a)    Termination Following A Change of Control.\n\n                    (i)    Involuntary Termination.  If the Employee's \nemployment with the Company terminates as a result of an Involuntary Termination\nat any time within twelve (12) months after a Change of Control, the Employee\nshall be entitled to receive continuing payments of severance pay at a rate\nequal to the sum of: six (6) months of the Employee's base salary (as in effect\nimmediately prior to the Change of Control). Such severance payments shall be\npaid monthly in accordance with the Company's normal payroll practices during\nthe Compensation Continuation Period. In addition, if Employee is eligible for\nand timely elects group health continuation coverage pursuant to the\nConsolidated Omnibus Reconciliation Act of 1985, as amended ('COBRA'), the\nCompany will reimburse Employee for his COBRA premiums until the earlier of (i)\nsix (6) months from the Employee's Termination Date; or (ii) the date Employee\nis no longer eligible to receive continuation coverage pursuant to COBRA.\nEmployee shall thereafter be responsible for the payment of COBRA coverage at\n102% of the actual premium cost for the remaining COBRA period.\n\n                    (ii)   Other Termination.  If the Employee's employment with\nthe Company terminates other than as a result of an Involuntary Termination at\nany time within twelve (12) months after a Change of Control, then the Employee\nshall not be entitled to receive severance or other benefits hereunder, but may\nbe eligible for those benefits (if any) as may then be established under the\nCompany's then existing severance and benefits plans and policies at the\nTermination Date.\n\n               (b)  Termination Apart from a Change of Control. If the \nEmployee's employment with the Company terminates for any or no reason other\nthan within the twelve (12) months following a Change of Control, then the\nEmployee shall not be entitled to receive severance or other benefits hereunder,\nbut may be eligible for those benefits (if any) as may then be established under\nthe Company's then existing severance and benefits plans and policies at the\ntime of such termination.\n\n               (c)  Accrued Wages and Vacation; Expenses. Without regard to the\nreason for, or the timing of, Employee's termination of employment: (i) the\nCompany shall pay the Employee any unpaid base salary due for periods prior to\nthe Termination Date; (ii) the Company shall pay the Employee all of the\nEmployee's accrued and unused vacation through the Termination Date; and (iii)\nfollowing submission of proper expense reports by the Employee, the Company\nshall reimburse the Employee for all expenses reasonably and necessarily\nincurred by the Employee in connection with the business of the \n\n\n                                      -3-\n\n\nCompany prior to the Termination Date. These payments shall be made promptly\nupon termination and within the period of time mandated by law.\n\n        5.     Option Acceleration. If the Employee's employment with the \nCompany terminates as a result of an Involuntary Termination at any time within\ntwelve (12) months after a Change of Control, the vesting and exercisability of\none hundred percent (100%) of any unvested options granted to the Employee by\nthe Company shall become vested and exercisable as of the date of the Employee's\nInvoluntary Termination.\n\n        6.     Successors.\n\n               (a)  Company's Successors. Any successor to the Company (whether\ndirect or indirect and whether by purchase, lease, merger, consolidation,\nliquidation or otherwise) to all or substantially all of the Company's business\nand\/or assets shall assume the Company's obligations under this Agreement and\nagree to perform the Company's obligations under this Agreement in the same\nmanner and to the same extent as the Company would be required to perform such\nobligations in the absence of a succession. For all purposes under this\nAgreement, the term 'Company' shall include any successor to the Company's\nbusiness and\/or assets which executes and delivers the assumption agreement\ndescribed in this subsection (a) or which becomes bound by the terms of this\nAgreement by operation of law.\n\n               (b)  Employee's Successors. Without the written consent of the\nCompany, Employee shall not assign or transfer this Agreement or any right or\nobligation under this Agreement to any other person or entity. Notwithstanding\nthe foregoing, the terms of this Agreement and all rights of Employee hereunder\nshall inure to the benefit of, and be enforceable by, Employee's personal or\nlegal representatives, executors, administrators, successors, heirs,\ndistributees, devisees and legatees.\n\n        7.     Notices.\n\n               (a)  General. Notices and all other communications contemplated \nby this Agreement shall be in writing and shall be deemed to have been duly\ngiven when personally delivered or when mailed by U.S. registered or certified\nmail, return receipt requested and postage prepaid. In the case of the Employee,\nmailed notices shall be addressed to him at the home address which he most\nrecently communicated to the Company in writing. In the case of the Company,\nmailed notices shall be addressed to its corporate headquarters, and all notices\nshall be directed to the attention of its Secretary.\n\n               (b)  Notice of Termination. Any termination by the Company for\nCause or by the Employee as a result of a voluntary resignation or an\nInvoluntary Termination shall be communicated by a notice of termination to the\nother party hereto given in accordance with this Section. Such notice shall\nindicate the specific termination provision in this Agreement relied upon, shall\nset forth in reasonable detail the facts and circumstances claimed to provide a\nbasis for termination under the provision so indicated, and shall specify the\nTermination Date (which shall be not more than 30 days after the giving of such\nnotice). The failure by the Employee to include in the notice any fact or\ncircumstance which contributes to a showing of Involuntary Termination shall not\nwaive any right of \n\n\n                                      -4-\n\n\nthe Employee hereunder or preclude the Employee from asserting such fact or\ncircumstance in enforcing his rights hereunder.\n\n\n                                      -5-\n\n\n        8.     Arbitration.\n\n               (a)  Any dispute or controversy arising out of, relating to, or \nin connection with this Agreement, or the interpretation, validity,\nconstruction, performance, breach, or termination thereof, shall be settled by\nbinding arbitration to be held in Pasadena, California, in accordance with the\nNational Rules for the Resolution of Employment Disputes then in effect of the\nAmerican Arbitration Association (the 'Rules'). The arbitrator may grant\ninjunctions or other relief in such dispute or controversy. The decision of the\narbitrator shall be final, conclusive and binding on the parties to the\narbitration. Judgment may be entered on the arbitrator's decision in any court\nhaving jurisdiction.\n\n               (b)  The arbitrator(s) shall apply California law to the merits \nof any dispute or claim, without reference to conflicts of law rules. The\narbitration proceedings shall be governed by federal arbitration law and by the\nRules, without reference to state arbitration law. Employee hereby consents to\nthe personal jurisdiction of the state and federal courts located in California\nfor any action or proceeding arising from or relating to this Agreement or\nrelating to any arbitration in which the parties are participants.\n\n               (c)  Employee understands that nothing in this Section modifies\nEmployee's at-will employment status. Either Employee or the Company can\nterminate the employment relationship at any time, with or without cause.\n\n               (d)  EMPLOYEE HAS READ AND UNDERSTANDS THIS SECTION, WHICH\nDISCUSSES ARBITRATION. EMPLOYEE UNDERSTANDS THAT SUBMITTING ANY CLAIMS ARISING\nOUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, OR THE\nINTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH OR TERMINATION\nTHEREOF TO BINDING ARBITRATION, CONSTITUTES A WAIVER OF EMPLOYEE'S RIGHT TO A\nJURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS\nOF THE EMPLOYER\/EMPLOYEE RELATIONSHIP, INCLUDING BUT NOT LIMITED TO, THE\nFOLLOWING CLAIMS:\n\n                    (i)       ANY AND ALL CLAIMS FOR WRONGFUL DISCHARGE OF\nEMPLOYMENT; BREACH OF CONTRACT, BOTH EXPRESS AND IMPLIED; BREACH OF THE COVENANT\nOF GOOD FAITH AND FAIR DEALING, BOTH EXPRESS AND IMPLIED; NEGLIGENT OR\nINTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; NEGLIGENT OR INTENTIONAL\nMISREPRESENTATION; NEGLIGENT OR INTENTIONAL INTERFERENCE WITH CONTRACT OR\nPROSPECTIVE ECONOMIC ADVANTAGE; AND DEFAMATION.\n\n                    (ii)      ANY AND ALL CLAIMS FOR VIOLATION OF ANY FEDERAL\nSTATE OR MUNICIPAL STATUTE, INCLUDING, BUT NOT LIMITED TO, TITLE VII OF THE\nCIVIL RIGHTS ACT OF 1964, THE CIVIL RIGHTS ACT OF 1991, THE AGE DISCRIMINATION\nIN EMPLOYMENT ACT OF 1967, THE AMERICANS WITH DISABILITIES ACT OF 1990, THE FAIR\nLABOR STANDARDS ACT, THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT, AND LABOR\nCODE SECTION 201, et seq;\n\n\n\n                                      -6-\n\n\n                    (iii)     ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER LAWS\nAND REGULATIONS RELATING TO EMPLOYMENT OR EMPLOYMENT DISCRIMINATION.\n\n        9.     Miscellaneous Provisions.\n\n               (a)  No Duty to Mitigate. The Employee shall not be required to\nmitigate the amount of any payment contemplated by this Agreement, nor shall any\nsuch payment be reduced by any earnings that the Employee may receive from any\nother source.\n\n               (b)  Waiver. No provision of this Agreement may be modified,\nwaived or discharged unless the modification, waiver or discharge is agreed to\nin writing and signed by the Employee and by an authorized officer of the\nCompany (other than the Employee). No waiver by either party of any breach of,\nor of compliance with, any condition or provision of this Agreement by the other\nparty shall be considered a waiver of any other condition or provision or of the\nsame condition or provision at another time.\n\n               (c)  Integration. This Agreement and the stock option agreements\nrepresenting the Options represent the entire agreement and understanding\nbetween the parties as to the subject matter herein and supersede all prior or\ncontemporaneous agreements, whether written or oral.\n\n               (d)  Choice of Law. The validity, interpretation, construction \nand performance of this Agreement shall be governed by the internal substantive\nlaws, but not the conflicts of law rules, of the State of California.\n\n               (e)  Severability. The invalidity or unenforceability of any\nprovision or provisions of this Agreement shall not affect the validity or\nenforceability of any other provision hereof, which shall remain in full force\nand effect.\n\n               (f)  Employment Taxes. All payments made pursuant to this\nAgreement shall be subject to withholding of applicable income and employment\ntaxes.\n\n               (g)  Counterparts. This Agreement may be executed in \ncounterparts, each of which shall be deemed an original, but all of which\ntogether will constitute one and the same instrument.\n\n\n                                      -7-\n\n\n        IN WITNESS WHEREOF, each of the parties has executed this Agreement, in\nthe case of the Company by its duly authorized officer, as of the day and year\nfirst above written.\n\n\nCOMPANY:                               GOTO.COM, INC.\n\n\n                                       By:\n                                          --------------------------------------\n                                       Title:\n                                             -----------------------------------\n\nEMPLOYEE:\n                                       -----------------------------------------\n\n                                      -8-\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7665],"corporate_contracts_industries":[],"corporate_contracts_types":[9539,9551],"class_list":["post-38630","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-gotocom-inc","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\/38630","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=38630"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38630"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38630"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38630"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}