Exhibit 10.15
AMENDED AND RESTATED YAHOO!
INC.
CHANGE IN CONTROL EMPLOYEE
SEVERANCE PLAN
FOR
LEVEL I AND LEVEL II
EMPLOYEES
The Company hereby adopts this
Amended and Restated Yahoo! Inc. Change in Control Employee
Severance Plan for Level I and Level II Employees for the benefit
of certain employees of the Company and its subsidiaries, on the
terms and conditions hereinafter stated. This Plan amends and
restates in its entirety the Yahoo! Inc. Change in Control Employee
Severance Plan for Level I and Level II Employees adopted on
February 12, 2008. The Plan, as set forth herein, is intended
to help retain qualified employees, maintain a stable work
environment and provide economic security to eligible employees in
the event of certain terminations of employment. The Plan, as a
“severance pay arrangement” within the meaning of
Section 3(2)(B)(i) of ERISA, is intended to be excepted from
the definitions of “employee pension benefit plan” and
“pension plan” set forth under section 3(2) of ERISA,
and is intended to meet the descriptive requirements of a plan
constituting a “severance pay plan” within the meaning
of regulations published by the Secretary of Labor at Title 29,
Code of Federal Regulations §2510.3-2(b).
SECTION
1.
DEFINITIONS . As hereinafter used:
1.1 “
Affiliate ” means, with respect to any individual or
entity, any other individual or entity who, directly or indirectly
through one or more intermediaries, controls, is controlled by or
is under common control with, such individual or entity.
1.2 “
Board ” means the Board of Directors of the
Company.
1.3 “
Cause ” shall mean that the Eligible Employee has:
(a) willfully and continually failed to substantially perform,
or been willfully grossly negligent in the discharge of, his or her
duties to the Company or any of its subsidiaries (in any case,
other than by reason of a disability, physical or mental illness or
analogous condition), which failure or negligence continues for a
period of 10 business days after a written demand for performance
is delivered to the Eligible Employee by the Board, which
specifically identifies the manner in which the Board believes that
the Eligible Employee has not substantially performed, or been
grossly negligent in the discharge of, his or her duties;
(b) been convicted of or pled nolo contendere to a felony; or
(c) materially and willfully breached any agreement with the
Company, any of its subsidiaries or any Affiliate of the Company or
any of its subsidiaries. No act or failure to act on the part of
the Eligible Employee shall be deemed “willful” unless
done, or omitted to be done, by the Eligible Employee not in good
faith or without reasonable belief that the Eligible
Employee’s act or failure to act was in the best interests of
the Company.
1.4 A “
Change in Control ” shall be deemed to mean the first
of the following events to occur after the Effective
Date:
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(a)
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any person or
group of persons (as defined in Section 13(d) and 14(d) of the
Exchange Act) together with its affiliates, but excluding
(i) the Company or any of its subsidiaries, (ii) any
employee benefit plans of the Company or (iii) a corporation
owned, directly or indirectly, by the stockholders of the Company
in substantially the same proportions as their ownership of stock
of the Company (individually a “Person” and
collectively, “Persons”), is or becomes, directly or
indirectly, the “beneficial owner” (as defined in Rule
13d-3 under the Exchange Act) of securities of the Company
representing 40% or more of the combined voting power of the
Company’s then outstanding securities (not including in the
securities beneficially owned by such Person any securities
acquired directly from the Company or its Affiliates);
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(b)
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the
consummation of a merger or consolidation of the Company or any
direct or indirect subsidiary of the Company with any other
corporation or entity regardless of which entity is the survivor,
other than a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or
being converted into voting securities of the surviving entity)
more than 50% of the combined voting power of the voting securities
of the Company, such surviving entity or any parent thereof
outstanding immediately after such merger or consolidation;
or
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(c)
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the
stockholders of the Company approve a plan of complete liquidation
or winding-up of the Company or there is consummated an agreement
for the sale or disposition by the Company of all or substantially
all of the Company’s assets, provided, however, that a sale
of the Company’s search business shall not constitute a
Change in Control, regardless of whether stockholders approve the
transaction.
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1.5 “
Change in Control Protection Period ” shall mean the
period commencing on the date a Change in Control occurs and ending
on the first anniversary of such date.
1.6 “
Code ” means the Internal Revenue Code of 1986, as it
may be amended from time to time.
1.7 “
Company ” means Yahoo! Inc., its subsidiaries or any
successors thereto.
1.8 “
Disability ” means a physical or mental condition
entitling the Eligible Employee to benefits under the applicable
long-term disability plan of the Company or any its subsidiaries,
or if no such plan exists, a “permanent and total
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disability” (within the
meaning of Section 22(e)(3) of the Code) or as determined by
the Company in accordance with applicable laws.
1.9 “
Effective Date ” shall mean February 12,
2008.
1.10 “
Eligible Employee ” means any Level I Employee or
Level II Employee, who is employed on the date of a Change in
Control, other than: (i) an employee who has entered into a
separation agreement with the Company prior to a Change in Control;
(ii) interns, casual or temporary employees; and
(iii) employees on a fixed-term employment
agreement.
1.11 “
ERISA ” means the Employee Retirement Income Security
Act of 1974, as amended.
1.12 “
Exchange Act ” means the Securities Exchange Act of
1934, as amended.
1.13 “
Fundamental Board Change ” means the following
individuals cease for any reason to constitute a majority of the
number of directors then serving: individuals who, on
December 8, 2008, constitute the Board and any new director
(other than a director whose initial assumption of office is in
connection with an actual or threatened election contest, including
but not limited to a consent solicitation, relating to the election
of directors of the Company) whose appointment or election by the
Board or nomination for election by the Company’s
stockholders was approved or recommended by a vote of at least
two-thirds (2/3) of the directors then still in office who
either were directors on December 8, 2008, or whose
appointment, election or nomination for election was previously so
approved or recommended;
1.14 “
Good Reason ” means:
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(a)
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a material
diminution in the Eligible Employee’s duties or
responsibilities from those in effect immediately prior to the
Change in Control (including in the case of a Level I Employee who
reports directly to the chief executive officer of the Company
immediately prior to a Change in Control, if, after such Change in
Control, such Level I Employee no longer reports directly to the
chief executive officer of a public company), it being understood
that:
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(i)
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“a
material diminution in the Eligible Employee’s duties or
responsibilities” is not established by one or more of the
following changes, whether alone or in combination: (a) a
change in job title; (b) except as expressly provided in
Section 1.14(a), a change in reporting relationships; or
(c) any change in an Eligible Employee’s duties or
responsibilities of a type that the Company has historically caused
or permitted in the two years prior to the Change in
Control;
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(ii)
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under no
circumstances will a promotion or an increase in the number of
employees or projects to be managed or an increase in the budget to
be managed constitute “a material diminution in the Eligible
Employee’s duties or responsibilities”;
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(iii)
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a decrease in
the number of employees to be managed or a decrease in the budget
to be managed, standing alone, shall not constitute “a
material diminution in the Eligible Employee’s duties or
responsibilities” if resulting from a reduction in force;
and
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(iv)
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“a
material diminution in the Eligible Employee’s duties or
responsibilities” would be established if an Eligible
Employee is reassigned to perform job functions in a discipline
that is materially different than the discipline in which the
Eligible Employee worked prior to the Change in Control (
e.g. , a software engineer is assigned to work in the
accounting department or an in-house lawyer is assigned to work in
the corporate communications department), without regard to
similarity of job level;
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(b)
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a material
reduction in the Eligible Employee’s annual base salary as of
immediately prior to the Change in Control (or as the same may be
increased from time to time);
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(c)
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a material
reduction in the Eligible Employee’s annual target bonus
opportunity as of immediately prior to the Change in Control;
or
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(d)
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the relocation
of the Eligible Employee’s principal place of employment to a
location more than 35 miles from the Eligible Employee’s
principal place of employment immediately prior to the Change in
Control, except for required travel on the Company’s business
to an extent substantially consistent with the Eligible
Employee’s business travel obligations as of immediately
prior to the Change in Control.
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Notwithstanding the foregoing, any
change in the Eligible Employee’s duties or responsibilities
or any relocation of the Eligible Employee’s principal place
of employment shall not constitute Good Reason if such Eligible
Employee either requested, volunteered to undertake, or consented
in writing to, such change or relocation. The Eligible
Employee’s continued employment shall not constitute consent
to, or a waiver of rights with respect to, any act or failure to
act constituting Good Reason hereunder, provided that the Eligible
Employee provides the Company with a written notice of resignation
within ninety (90) days following the occurrence of the event
constituting Good Reason and the Company shall have failed to
remedy such act or omission within thirty (30) days following
its receipt of such notice.
1.15 “
Level I Employee ” means any full-time employee of the
Company or its subsidiaries with the job level immediately prior to
a change in control of: E4, E5 or EX.
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1.16 “
Level II Employee ” means any full-time employee of
the Company or its subsidiaries with the job level immediately
prior to a change in control of E3.
1.17 “
Plan ” means the Amended and Restated Yahoo! Inc.
Change in Control Employee Severance Plan for Level I and Level II
Employees, as set forth herein and as it may be amended from time
to time.
1.18 “
Plan Administrator ” means the Compensation Committee
of the Board or such other person or persons appointed from time to
time by the Compensation Committee of the Board to administer the
Plan.
1.19 “
Potential Change in Control ” shall be deemed to have
occurred if the event set forth in any one of the following
paragraphs shall have occurred:
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(a)
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the Company
enters into an agreement, the consummation of which would result in
the occurrence of a Change in Control; or
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(b)
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the Company or
any Person publicly announces an intention to take or to consider
taking actions which, if consummated, would constitute a Change in
Control.
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1.20 “
Potential Change in Control Period ” means the period
beginning upon the occurrence of a Potential Change in Control and
ending upon the earliest to occur of the: (i) consummation of
the Change in Control or (ii) one-month anniversary of the
abandonment of the transaction or series of transactions that
constitute a Potential Change in Control (as determined by the Plan
Administrator in its sole discretion).
1.21 “
Severance ” means (a) the involuntary termination
of an Eligible Employee’s employment by the Company or any
subsidiary thereof, other than for Cause, death or Disability or
(b) a termination of an Eligible Employee’s employment
by the Eligible Employee for Good Reason, in each case, following a
Change in Control and during the Change in Control Protection
Period, other than a termination of an Eligible Employee’s
employment by the Company as part of a global integration after a
Change in Control when such Eligible Employee is rehired by the
Company as part of such integration.
1.22 “
Severance Date ” means the date on which an Eligible
Employee incurs a Severance.
SECTION
2. CHANGE IN
CONTROL SEVERANCE BENEFITS
2.1
Generally . Subject to Sections 2.7, 2.8, 4 and 6.2 hereof,
each Eligible Employee shall be entitled to the greater of either
the: (a) severance payments and benefits pursuant to the
applicable provisions of Section 2 of this Plan if such
Eligible Employee incurs a Severance during the Change in Control
Protection Period or (b) severance benefits under any
negotiated severance agreement between such Eligible Employee and
the Company (if applicable). With respect to an Eligible Employee
who is entitled to benefits under the Workers Adjustment Retraining
Notification Act of 1988, or
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any similar state or local statute or ordinance
(collectively the “WARN Act”), such benefits under
this Plan shall be reduced dollar-for-dollar by any benefits
received pursuant to the WARN Act.
2.2
Payment of Accrued Obligations . Subject to Sections 2.8, 4
and 6.2 hereof, the Company shall pay to each Eligible Employee who
incurs a Severance during the Change in Control Protection Period a
lump sum payment in cash, paid in accordance with applicable law,
as soon as practicable but no later than 10 days after the
Severance Date, equal to the sum of (a) the Eligible
Employee’s accrued but unpaid annual base salary and any
accrued but unpaid vacation pay through the Severance Date, and
(b) the Eligible Employee’s annual bonus earned for the
fiscal year immediately preceding the fiscal year in which the
Severance Date occurs if such bonus has not been paid as of the
Severance Date.
2.3 Level
I Employees . Each Level I Employee who incurs a Severance
during the Change in Control Protection Period shall be entitled to
(i) continuation of his or her annual base salary, as in
effect on the Severance Date (or, if higher, as in effect on the
date on which the Change in Control occurs), for twenty-four
(24) months following the Severance and (ii) payment of
up to $15,000 (payable in equivalent local currency with respect to
Eligible Employees outside the United States) of outplacement
services utilized by the Eligible Employee within twenty-four
(24) months following the Severance Date, such reimbursement
to be paid not later than the end of the calendar year following
the year in which the expense is incurred.
2.4 Level
II Employees . Each Level II Employee who incurs a Severance
during the Change in Control Protection Period shall be entitled to
(i) continuation of his or her annual base salary, as in
effect on the Severance Date (or, if higher, as in effect on the
date on which the Change in Control occurs), for eighteen
(18) months following the Severance, and (ii) payment of
up to $15,000 (payable in equivalent local currency with respect to
Eligible Employees outside the United States) of outplacement
services utilized by the Eligible Employee within twenty-four
(24) months following the Severance Date, such reimbursement
to be paid not later than the end of the calendar year following
the year in which the expense is incurred.
2.5
Acceleration of Vesting . In addition to the benefits
provided pursuant to Sections 2.3, 2.4 and 2.6 hereof (as
applicable), each Level I and Level II Employee who incurs a
Severance during the Change in Control Protection Period shall be
entitled to full vesting of all stock options, restricted stock
units and any other equity-based awards granted or assumed by the
Company outstanding as of the Severance Date (whether or not such
award was outstanding as of the Effective Date); provided, however,
that this Section 2.5 shall not apply with respect to a grant
or award of stock options, restricted stock units or any other
equity-based compensation made after the Effective Date if the
agreement granting or awarding the applicable stock options,
restricted stock units or any other equity-based compensation
provides that the grant shall not be subject to the provisions of
this Section 2.5.
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2.6
Benefit Continuation . In the case of each Eligible Employee
who incurs a Severance during the Change in Control Protection
Period, commencing on the date immediately following such Eligible
Employee’s Severance Date and continuing for the period set
forth below (the “Welfare Benefit Continuation
Period”), the Company shall provide to each such Eligible
Employee (and anyone entitled to claim under or through such
Eligible Employee) all Company-paid benefits under any group health
plan or dental plan of the Company (as in effect immediately prior
to such Eligible Employee’s Severance Date) for which
Eligible Employees of the Company are eligible, to the same extent
as if such Eligible Employee had continued to be an Eligible
Employee of the Company during the Welfare Benefit Continuation
Period. To the extent that such Eligible Employee’s
participation in Company benefit plans is not practicable, the
Company shall arrange to provide, at the Company’s sole
expense, such Eligible Employee (and anyone entitled to claim under
or through such Eligible Employee) with equivalent health and
dental benefits under an alternative arrangement during the Welfare
Benefit Continuation Period. The coverage period for purposes of
the group health continuation requirements of Section 4980B of
the Code shall commence at the Severance Date, and shall run
concurrently with the Welfare Benefit Continuation Period. The
Welfare Benefit Continuation Period shall be for a number of months
equal to the number of months (including fractions thereof) during
which the Eligible Employee receives base salary continuation
payments pursuant to this Section 2.
2.7
Release; Restrictive Covenants; Benefit Commencement Date .
No Eligible Employee who incurs a Severance during the Change in
Control Protection Period shall be eligible to receive any payments
or ot
