{"id":39918,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/executive-severance-agreement-cmgi-inc-and-george-a-mcmillan.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"executive-severance-agreement-cmgi-inc-and-george-a-mcmillan","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/executive-severance-agreement-cmgi-inc-and-george-a-mcmillan.html","title":{"rendered":"Executive Severance Agreement &#8211; CMGI Inc. and George A. McMillan"},"content":{"rendered":"<pre>\n                         EXECUTIVE SEVERANCE AGREEMENT\n                         -----------------------------\n\n     THIS EXECUTIVE SEVERANCE AGREEMENT (\"Agreement\") by and between CMGI, Inc.,\na Delaware corporation (the \"Company\") and George A. McMillan (the \"Executive\"),\nis made as of June 11, 2001.\n\n     WHEREAS, the Board of Directors of the Company (the \"Board\") has determined\nthat Executive will play a critical role in the operations of the Company; and\n\n     WHEREAS, the Board has determined that appropriate steps should be taken to\nreinforce and encourage the continued employment and dedication of the\nExecutive.\n\n     NOW, THEREFORE, as an inducement for and in consideration of the Executive\nremaining in its employ, the Company agrees that the Executive shall receive the\nseverance benefits set forth in this Agreement in the event the Executive's\nemployment with the Company is terminated under the circumstances described\nbelow.\n\n1.   Term of Agreement.  The term of this Agreement shall be June 11, 2001\n     -----------------                                                    \nthrough the last day of Executive's employment with the Company.\n\n2.   Not an Employment Contract.  The Executive acknowledges that this Agreement\n     --------------------------                                                 \ndoes not constitute a contract of employment or impose on the Company any\nobligation to retain the Executive as an employee and that this Agreement does\nnot prevent the Executive from terminating his employment.  Executive\nunderstands and acknowledges that he is an employee at will and that either he\nor the Company may terminate the employment relationship between them at any\ntime and for any reason.\n\n3.   Severance Payment.  (a)  In the event the employment of the Executive is\n     -----------------                                                       \nterminated by the Company for a reason other than for Cause (as defined below),\nor by the Executive for Good Reason (as defined below), the Company shall pay to\nthe Executive a severance payment equal to 12 months of his then-current monthly\nbase salary plus target bonus, as in effect on the Executive's last day of\nemployment, and will reimburse the Executive for cost of  COBRA for medical,\ndental and vision for 12 months following the Executive's last day of\nemployment.  The severance payment shall be payable in full within 10 business\ndays after the termination of Executive's employment, unless the parties agree\notherwise.  Additionally, in the event that prior to 24 months of employment\nthere occurs a termination giving rise to a severance payment by the Company to\nExecutive pursuant to  this Section 3(a), 50% of the then-unvested options to\npurchase shares of common stock of the Company pursuant to options granted to\nExecutive on or prior to his first day of employment with the Company (\"Initial\nOptions\") shall immediately become exercisable in full and shall be deemed fully\nvested.  In the event of any termination of employment giving rise to a\nseverance payment pursuant to this Section 3(a), the Executive shall have the\nright to exercise any vested Initial Options following such termination of\nemployment, unless the options terminate sooner by the terms of the underlying\noption agreement, as follows:\n\n               -  Executive shall have at least 90 days following the\n                  termination date of his employment to exercise his vested\n                  Initial Options;\n\n \n               -  Executive shall be entitled to exercise his vested Initial\n                  Options following the termination date of his employment for a\n                  number of months following such termination date equal to the\n                  number of months he worked for the Company (rounded up to the\n                  next month in the event the Executive's termination date is on\n                  or after the 15\/th\/ day of the month);\n\n               -  In no event shall Executive be entitled to exercise his vested\n                  Initial Options following his termination date for a period\n                  greater than 365 days.\n\n     In the event the severance payment and other such benefits, including but\nnot limited to Initial Options being accelerated pursuant to this Section 3(a),\nare paid to the Executive by the Company pursuant to this Section 3(a), then\nSection 3(b) shall not apply and shall have no further force or effect.\n\n     (b)  In the event the employment of the Executive is terminated by the\nCompany for a reason other than for Cause within twelve (12) months following a\nChange of Control (as defined below) of the Company or by the Executive for Good\nReason within twelve (12) months following a Change of Control of the Company,\nthe Company shall pay to the Executive a severance payment equal to 24 months of\nhis then-current monthly base salary plus target bonus, as in effect on the\nExecutive's last day of employment, and will reimburse the Executive for cost of\nCOBRA for medical, dental and vision for 12 months following the Executive's\nlast day of employment.  The severance payment shall be payable in full within\n10 business days after the termination of Executive's employment, unless the\nparties agree otherwise.  Additionally, in the event of a termination giving\nrise to a severance payment by the Company to Executive pursuant to this Section\n3(b), each outstanding option to purchase shares of common stock of the Company\nthen held by the Executive shall immediately become exercisable in full and\nshall be deemed fully vested.  In the event of any termination of employment\ngiving rise to a severance payment pursuant to this Section 3(b), with respect\nto Initial Options , the Executive shall have the right to exercise any vested\nInitial Options within a 12-month time period following such termination of\nemployment, unless the options terminate sooner by the terms of the underlying\noption agreement.  All other options shall be exercisable in accordance with\ntheir terms.  In the event the severance payment and other such benefits\n(including but not limited to options being accelerated pursuant to this Section\n3(b)) are paid to the Executive by the Company pursuant to this Section 3(b),\nthen Section 3(a) shall not apply and shall have no further force or effect.\n\n     (c)  The Executive agrees that prior to payment of the severance payment\npursuant to this Section 3 and prior to the provision of benefits and\nacceleration of stock options called for by Section 3, Executive shall execute a\nrelease, based on the Company's standard form (including mutual confidentiality\nand non-disparagement provisions), of any and all claims he may have against the\nCompany and its officers, directors, employees and affiliates, except for his\nright to enforce any post-employment obligations to him, including obligations\nof the Company under this Agreement and stock option agreements, and\nindemnification in his capacity as an officer, director or otherwise of the\nCompany and its affiliates.  Executive understands and \n\n                                      -2-\n\n \nagrees that the payment of the severance payment, provision of benefits and the\nacceleration of options called for by Section 3 are contingent on his execution\nof the previously described release of claims. The payment to the Executive of\nthe amounts payable under this Section 3 (and acceleration of options, if\napplicable) shall constitute the sole remedy of the Executive in the event of a\ntermination of the Executive's employment.\n\n4.   Definitions.  For purposes of this Agreement, the following terms shall \n     -----------\nhave the following meanings:\n\n     (a) \"Cause\" shall mean a good faith finding by the Board of Directors of\nthe Company, after giving Executive an opportunity to be heard, of: (i)\ndishonest, gross negligent or willful misconduct by Executive in connection with\nhis employment duties, (ii) continued failure by Executive to perform his duties\nor responsibilities required pursuant to his employment, after written notice\nand an opportunity to cure, (iii) mis-appropriation by Executive for his\npersonal use of the assets or business opportunities of the Company, or its\naffiliates, (iv) embezzlement or other financial or other fraud committed by\nExecutive, (v) the Executive knowingly allowing any third party to commit any of\nthe acts described in any of the preceding clauses (iii) or (iv), or (vi)  the\nExecutive's indictment for, conviction of, or entry of a plea of no contest with\nrespect to, any felony or any crime involving moral turpitude.\n\n     (b) \"Good Reason\" shall mean: (i) the unilateral relocation by the Company\nof the Executive's principal work place for the Company to a site more than 60\nmiles from Andover, Massachusetts, (ii) a reduction in the Executive's (A) then-\ncurrent base salary without the Executive's consent, or (B) target bonus or a\nmaterial reduction in benefits without the Executive's consent, or unless other\nexecutive officers are similarly treated; or (iii) material dimunition of\nExecutive's duties, authority or position as Chief Financial Officer of the\nCompany, without the Executive's consent.\n\n     (c) \"Change of Control\" shall mean the first to occur of any of the\nfollowing:  (a) any\"person\" or \"group\" (as defined in the Securities Exchange\nAct of 1934) becomes the beneficial owner of a majority of the combined voting\npower of the then outstanding voting securities with respect to the election of\nthe Board of Directors of the Company; (b) any merger, consolidation or similar\ntransaction involving the Company, other than a transaction in which the\nstockholders of the Company immediately prior to the transaction hold\nimmediately thereafter in the same proportion as immediately prior to the\ntransaction not less than 50% of the combined voting power of the then voting\nsecurities with respect to the election of the Board of Directors of the\nresulting entity; or (c) any sale of all or substantially all of the assets of\nthe Company.\n\n5.   Termination of Employment.  Upon termination of Executive's employment with\n     -------------------------                                                  \nthe Company for any reason, in addition to any severance payments or other\nbenefits which may be payable under Section 3 of this Agreement, Executive shall\nbe entitled to receive all salary and benefits through the last day of his\nemployment.  In addition, in the event the Executive is terminated for other\nthan Cause or the Executive terminates his employment for Good Reason, Executive\nshall be entitled to a pro rata share of his earned target bonus, such earned\ntarget bonus to be determined in accordance with the terms and provisions of the\nExecutive's target bonus plan.\n\n                                      -3-\n\n \n6.   Miscellaneous.\n     ------------- \n\n     (a) Notices.  Any notices delivered under this Agreement shall be deemed\n         -------                                                             \nduly delivered four business days after it is sent by registered or certified\nmail, return receipt requested, postage prepaid, or one business day after it is\nsent for next-business day delivery via a reputable nationwide overnight courier\nservice, in each case to the address of the recipient set forth in the\nintroductory paragraph hereto.  Either party may change the address to which\nnotices are to be delivered by giving notice of such change to the other party.\nAll notices to the Company shall also be addressed to the Company's General\nCounsel.\n\n     (b) Pronouns.  Whenever the context may require, any pronouns used in this\n         --------                                                              \nAgreement shall include the corresponding masculine, feminine or neuter forms,\nand the singular forms of nouns and pronouns shall include the plural, and vice\nversa.\n\n     (c) Entire Agreement.  This Agreement constitutes the entire agreement\n         ----------------                                                  \nbetween the parties and supersedes all prior agreements and understandings,\nwhether written or oral, relating to the subject matter of this Agreement.\n\n     (d) Amendment.  This Agreement may be amended or modified only by a written\n         ---------                                                              \ninstrument executed by both the Company and the Executive.\n\n     (e) Governing Law.  This Agreement shall be governed by and construed in\n         -------------                                                       \naccordance with the laws of the Commonwealth of Massachusetts.  Any action, suit\nor other legal arising under or relating to any provision of this Agreement\nshall be commenced only in a court of the Commonwealth of Massachusetts (or, if\nappropriate, a federal court located within Massachusetts), and the Company and\nthe Executive each consents to the jurisdiction of such a court.  The Company\nand the Executive each hereby irrevocably waive any right to a trial by jury in\nany action, suit or other legal proceeding arising under or relating to any\nprovision of this Agreement.\n\n     (f) Successors and Assigns.  This Agreement shall be binding upon and inure\n         ----------------------                                                 \nto the benefit of both parties and their respective successors and assigns,\nincluding any corporation with which or into which the Company may be merged or\nwhich may succeed to its assets or business, provided, however, that the\nobligations of the Executive are personal and shall not be assigned by him or\nher.\n\n     (g) Waivers.  No delay or omission by the Company in exercising any right\n         -------                                                              \nunder this Agreement shall operate as a waiver of that or any other right.  A\nwaiver or consent given by the Company on any one occasion shall be effective\nonly in that instance and shall not be construed as a bar or waiver of any right\non any other occasion.\n\n     (h) Captions.  The captions of the sections of this Agreement are for\n         --------                                                         \nconvenience of reference only and in no way define, limit or affect the scope or\nsubstance of any section of this Agreement.\n\n     (i) Severability.  In case any provision of this Agreement shall be\n         ------------                                                   \ninvalid, illegal or otherwise unenforceable, the validity, legality and\nenforceability of the remaining provisions shall in no way be affected or\nimpaired thereby.\n\n                                      -4-\n\n \n     THE EXECUTIVE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT AND\nUNDERSTANDS AND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\n\n     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of\nthe day and year set forth above.\n\n                              CMGI, Inc.\n\n\n                              By: \/s\/ David S. Wetherell\n                              Title: Chief Executive Officer\n\n\n\n                              \/s\/ George A. McMillan\n                                  ------------------\n                              George A. McMillan\n\n                                      -5-\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7128],"corporate_contracts_industries":[9417],"corporate_contracts_types":[9539,9551],"class_list":["post-39918","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-cmgi-inc","corporate_contracts_industries-financial__holding","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\/39918","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=39918"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39918"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39918"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39918"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}