Executive Retention and Severance Agreement
EXHIBIT 99.3
This Executive Retention and Severance Agreement (the “Agreement”) is made and entered into as
of January 21, 2009 (the “Effective Date"), by and between Move, Inc. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (the
"Executive”). Capitalized terms used in this Agreement shall have the meanings set forth in Section
4, below.
1. Purpose. The purpose of this Agreement is (i) to encourage Executive to commence
employment with and remain in the employ of the Company (as defined in Section 4.3) and to devote
Executive’s full attention to the success of the Company and (ii) to provide specified benefits to
Executive in the event of a Termination Upon Change of Control or a Termination in Absence of
Change of Control, as such terms are defined in Section 4 of this Agreement.
2. Termination Upon Change of Control. In the event of Executive’s Termination Upon a
Change of Control, Executive shall receive all salary and accrued vacation (less applicable
withholding) earned through the conclusion of the transition period (or termination date if there
is no transition period requested by the Company), and the benefits, if any, under Company benefit
plans to which Executive may be entitled pursuant to the terms of such plans. In addition,
provided that Executive complies with Section 5.2 below and provides the transition services that
the Company may request as described in Section 5.3 below, Executive shall receive the following
payments and benefits:
2.1 COBRA Entitlement. The Company shall pay 100% of the Executive’s COBRA premiums
for the same or reasonably equivalent medical coverage he and his dependents had on the date of his
termination for a period not to exceed the earlier of eighteen (18) months following termination or
until Executive and his dependents become eligible for medical insurance coverage at a new
employer.
2.2 Cash Severance Payment. Executive shall receive an amount equal to the sum of (i)
12 months of Executive’s then current annual base salary and (ii) 100% of the target bonus that
would otherwise be payable to Executive for the fiscal year in which Executive’s termination occurs
(whether or not Executive has satisfied the applicable performance objectives) (the “Cash
Severance”). Subject to Section 9.8, the Cash Severance will be payable in equal installments over
12 months in accordance with the Company’s normal payroll practices beginning with the first
payroll date following the termination date, with such payroll deductions and withholdings as are
required by law. For purposes of Code Section 409A, the right to receive such installment payments
shall be treated as the right to receive a series of separate payments, as defined in Treas. Reg.
Section 1.409A-2(b)(2)(iii).
2.3 Stock Award Acceleration. Immediately prior to the effective date of the Change
of Control, regardless of whether there is a Termination Upon a Change of Control, 100% of all
outstanding stock options granted and restricted stock issued by the Company to Executive prior to
the date of this Agreement, if any, and the stock options, restricted shares and performance-based
restricted stock units described in the letter from ▇▇▇ ▇▇▇▇▇▇▇ dated January 21, 2009 (the
“Letter”) (collectively the “Outstanding Equity”), shall vest. In addition, all Outstanding Equity
consisting of stock options shall be exercisable by Executive for a period ending on the earlier of
(i) three (3) years following the end of such transition period (if any) or three (3) years
following termination if the Company requests no transition period or (ii) the normal expiration of
such options.
3. Termination in Absence of Change of Control. In the event of Executive’s Termination in
Absence of a Change of Control, Executive shall receive all salary and accrued vacation (less
applicable withholding) earned through the conclusion of the transition period (or termination date
if there is no transition period requested by the Company), and the benefits, if any, under Company
benefit plans to which Executive may be entitled pursuant to the terms of such plans. In addition,
provided that Executive complies with Section 5.2 below and performs the transition services that
the Company may request as described in Section 5.3 below, Executive shall receive the following
payments and benefits:
3.1 COBRA Entitlement. The Company shall pay 100% of the Executive’s COBRA premiums
for the same or reasonably equivalent medical coverage he and his dependents had on the date of his
termination, for a period not to exceed the earlier of eighteen (18) months following termination
or until Executive and his dependents become eligible for medical insurance coverage at a new
employer.
3.2 Cash Severance Payment. Executive shall receive an amount equal to the sum of (i)
12 months of Executive’s then current annual base salary and (ii) 100% of the target bonus that
would otherwise be payable to Executive for the fiscal year in which Executive’s termination occurs
(whether or not Executive has satisfied the applicable performance objectives) (the “Cash
Severance”). Subject to Section 9.8, the Cash Severance will be payable in equal installments over
12 months in accordance with the Company’s normal payroll practices beginning with the first
payroll date following the termination date, with such payroll deductions and withholdings as are
required by law. For purposes of Code Section 409A, the right to receive such installment payments
shall be treated as the right to receive a series of separate payments, as defined in Treas. Reg.
Section 1.409A-2(b)(2)(iii).
3.3 Stock Award Acceleration. Upon Executive’s termination date, 100% of all
Outstanding Equity other than performance-based restricted stock units shall vest. In addition, all
Outstanding Equity consisting of stock options shall be exercisable by Executive for a period
ending on the earlier of (i) three (3) years following the end of such transition period (if any)
or three (3) years following termination if the Company requests no transition period or (ii) the
normal expiration of the such options.
4. Definitions. Capitalized terms used, but not previously defined, in this Agreement shall
have the meanings set forth in this Section 4.
4.1 “Cause” means (a) Executive’s willful and continued failure to perform
substantially Executive’s duties with the Company (other than any such failure resulting from
incapacity due to physical or mental illness, and specifically excluding any failure by Executive,
after reasonable efforts, to meet performance expectations), for thirty (30) days after a written
demand for substantial performance is delivered to Executive by the Chairman of the Board of
Directors of Move which specifically identifies the manner in which the Board believes that
Executive has not substantially performed his duties, or (b) Executive’s willful engagement in
illegal conduct or gross misconduct which is materially and demonstrably injurious to the Company.
For purposes of this provision, no act or failure to act, on the part of Executive, shall be
considered “willful” unless it is done, or omitted to be done, by him in bad faith without
reasonable belief that his action or omission was in the best interests of the Company.
4.2 “Change of Control” means (a) any “person” (as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), other than a
trustee or other fiduciary holding securities of the Company under an employee benefit plan of the
Company, becomes the “beneficial owner” (as defined in Rule 13d-3 promulgated under the Exchange
Act), directly or indirectly, of securities of the Company representing 50% or more of (A) the
outstanding shares of common stock of the Company or (B) the combined voting power of the Company’s
then-outstanding securities; (b) the Company is party to a merger or consolidation, or series of
related transactions, which results in the voting securities of the Company outstanding immediately
prior thereto failing to continue to represent (either by remaining outstanding or by being
converted into voting securities of the surviving or another entity) at least fifty (50%) percent
of the combined voting power of the voting securities of the Company or such surviving or other
entity outstanding immediately after such merger or consolidation; (c) the sale or disposition of
all or substantially all of the Company’s assets (or consummation of any transaction, or series of
related transactions, having similar effect), unless at least fifty (50%) percent of the combined
voting power of the voting securities of the entity acquiring those assets is held by persons who
held the voting securities of the Company immediately prior to such transaction or series of
transactions; (d) there occurs a change in the composition of the Board of Directors of the Company
within a two-year period, as a result of which fewer than a majority of the directors are Incumbent
Directors; (e) the dissolution or liquidation of the Company, unless after such liquidation or
dissolution all or substantially all of the assets of the Company are held in an entity at least
fifty (50%) percent of the combined voting power of the voting securities of which is held by
persons who held the voting securities of the Company immediately prior to such liquidation or
dissolution; or (f) any transaction or series of related transactions that has the substantial
effect of anyone or more of the foregoing.
4.3 “Company” means Move, Inc., any successor thereto and, following a Change of
Control, any successor or owner of substantially all the business and/or assets of Move, Inc.
4.4 “Diminution of Responsibilities” means the occurrence of any of the following
conditions, without Executive’s consent and which condition is not cured by the Company within
thirty (30) days after notice by Executive specifying the condition (which notice must be given no
later than 90 days after the initial occurrence of such event): (a) a material reduction by the
Company of Executive’s duties, responsibilities, authority or reporting relationship; (b) a
material reduction in Executive’s base salary or the percentage of his base salary on which his
target bonus is based, provided that a reduction in base salary that is the result of a general
reduction in salary in an amount similar to reductions for other similarly situated Company
executives shall not constitute a “Diminution of Responsibilities”; (c) a material reduction in
benefits (other than future option grants), provided that a reduction in benefits that is the
result of a general reduction in benefits in an amount similar to reductions for other similarly
situated Company employees
shall not constitute a “Diminution of Responsibilities”; (d) the Company’s requiring Executive
to be based at any office or location more than 50 miles from the Company’s headquarters in
Westlake Village, California or from the Company’s office in Campbell, California; or (e) a
material breach by the Company of the terms of this Agreement or the terms of the Letter.
4.5 “Disability” means the inability to engage in the performance of Executive’s
duties by reason of a physical or mental impairment which constitutes a permanent and total
disability in the opinion of a qualified physician.
4.6 “Incumbent Director” means a director who (1) is a director of the Company as of
the Effective Date, (2) is elected, or nominated for election, to the Board of Directors of the
Company with the affirmative votes of at least a majority of the Incumbent Directors at the time of
such election or nomination, or (3) was not elected or nominated in connection with an actual or
threatened proxy contest relating to the election of directors to the Company.
4.7 “Termination in Absence of Change of Control” means:
| (a) | any termination of employment of Executive by the Company without Cause (i) that occurs prior to the date that the Company first publicly announces it has entered into a definitive agreement or that the Company’s Board of Directors has endorsed a tender offer for the Company’s stock that in either case if consummated would result in a Change of Control (even though consummation is subject to approval or requisite tender by the Company’s stockholders and other conditions and contingencies), (ii) that occurs after the Company announces that any definitive agreement or tender offer referred to in clause (i) has been terminated and before it announces it has entered into another such definitive agreement or the Board of Directors has endorsed another tender offer, or (iii) that occurs more than twelve (12) months following the consummation of any transaction or series of related transactions that result in a Change of Control; or | ||
| (b) | any resignation by Executive based on a Diminution of Responsibilities that occurs within one hundred and eighty (180) days following the occurrence of one of the conditions that constitutes a Diminution of Responsibilities, but only where such Diminution of Responsibilities occurs: (i) prior to the date that the Company first publicly announces it has entered into a definitive agreement or that the Company’s Board of Directors has endorsed a tender offer for the Company’s stock that if consummated would result in a Change of Control (even though consummation is subject to approval or requisite tender by the Company’s stockholders and other conditions and contingencies), (ii) after the Company announces that any definitive agreement or tender offer referred to in clause (i) has been terminated and before it announces it has entered into another such definitive agreement or the Board of Directors has endorsed another tender offer, or (iii) more than twelve (12) months following the consummation of any transaction or series of related transactions that result in a Change of Control. |
Notwithstanding anything to the contrary herein, the term Termination in Absence of
Change of Control shall not include termination of the employment of Executive (1) by the
Company for Cause; (2) as a result of the voluntary termination of employment by Executive for
reasons other than a Diminution of Responsibilities; or (3) that is a Termination Upon a Change of
Control.
4.8 “Termination Upon Change of Control” means:
| (a) | any termination of the employment of Executive by the Company without Cause during the period commencing on or after the date that the Company first publicly announces that it has signed a definitive agreement or that the Company’s Board of Directors has endorsed a tender offer for the Company’s stock that in either case when consummated would result in a Change of Control (even though consummation is subject to approval or requisite tender by the Company’s stockholders and other conditions and contingencies) and ending at the earlier of the date on which the Company publicly announces that such definitive agreement or tender offer has been terminated without a Change of Control or on the date which is twelve (12) months following the consummation of any transaction or series of transactions that results in a Change of Control; or | ||
| (b) | any resignation by Executive based on a Diminution of Responsibilities where (i) such Diminution of Responsibilities occurs during the period commencing on or after the date that the Company first publicly announces that it has signed a definitive agreement that when consummated would result in a Change of Control (even though consummation is subject to approval or requisite tender by the Company’s stockholders and other conditions and contingencies) and ending on the date which is twelve (12) months following the consummation of the transaction or series of transactions that results in the Change of Control, and (ii) such resignation occurs within one hundred and eighty (180) days following such Diminution of Responsibilities. |
Notwithstanding anything to the contrary herein, the term Termination Upon Change of Control
shall not include any termination of the employment of Executive (1) by the Company for Cause; (2)
as a result of the voluntary termination of employment by Executive for reasons other than a
Diminution of Responsibilities; or (3) that is a Termination in Absence of Change of Control.
5. No Other Benefits; Release; Transition Period; Termination Under Other Circumstances.
5.1 No Other Benefits Payable. Except as provided in this Agreement or as required by
law, Executive shall be entitled to no other compensation, benefits, or other payments from the
Company as a result of any termination of employment.
5.2 Release of Claims. The Company may condition payment of the cash severance and
accelerated vesting of stock options in Sections 2 or 3 of this Agreement upon the delivery by
Executive of a signed mutual release of known and unknown claims related to Executive’s employment
in the form attached hereto as Exhibit A; provided that, upon receipt of such mutual
release, the Company uses its best efforts to execute such mutual release.
5.3 Transition Period. In the event of that the Company or the Executive gives notice
to the other party of its intention to terminate Executive’s employment with the Company under
circumstances that would constitute a Termination Upon a Change of Control or Termination in
Absence of a Change of Control (the “Termination Notice”), the Company shall have the right,
exercisable by notice to Executive given at any time prior to ten (10) days after its receipt or
delivery of the Termination Notice, to request that Executive remain employed by the Company for
such period as the Company may elect, but in no event longer than ninety (90) days following its
receipt or delivery of the Termination Notice. If Executive agrees to such transition period (by
giving notice to the Company within five (5) days after the Company’s notice to Executive), then
during such period Executive shall remain a full time employee of the Company at the rate of
compensation and with the same benefits as in effect on the date of his termination, shall perform
such duties consistent with his prior responsibilities as the Company shall reasonably request,
including services designed to transition his duties and responsibilities to one or more
replacements, and at the conclusion of the transition period shall receive the benefits provided in
Section 2 or 3 above as the case may be. If the Company requests a transition period as provided
above and Executive does not agree to it, Executive shall receive the benefit of Section 2.1 or
3.1(computed through the date of termination), as the case may be, but shall not receive the
benefit of the other provisions of this Agreement. The Company need not request a transition
period, in which case Executive shall receive the benefit of Section 2 or Section 3, as the case
may be, and the other provisions of this Agreement based on the date of actual termination. The
Company shall have the right at any time to terminate Executive during the transition period, in
which case Executive shall be entitled to the benefits of Section 2 or Section 3, as the case may
be. Executive shall have the right to terminate his employment at any time during the transition
period, but if Executive shall fail or refuse to complete the transition period, other than as a
result of death or Disability, then Executive shall not be entitled to the benefit of Section 2 or
Section 3 (except Section 2.1 or 3.1 through the date such services cease). In the case of
Executive’s death or Disability during the transition period, he shall be deemed to have completed
the transition period service for the full period requested.
5.4 Termination Under Other Circumstances. In the event of Executive’s termination for
Cause, or any resignation by Executive that does not constitute a Termination Upon a Change of
Control or a Termination in Absence of Change of Control, the Company’s sole financial obligations
to Executive shall be to pay to Executive all salary and accrued vacation (less applicable
withholding) earned through the effective date of Executive’s termination or resignation, to honor
Executive’s vested options, and to provide the benefits, if any, under the Company’s benefit plans
to which Executive may be entitled pursuant to the terms of such plans. In the event of a
termination of Executive’s employment (1) by the Company as a result of the Disability of Executive
or (2) as a result of the death of Executive, Executive (or Executive’s estate) shall be entitled
to the benefits of Section 3.
6. Agreement Not to Solicit. If Company performs its obligations to deliver the severance
payments and benefits set forth in Sections 2 or 3 of this Agreement, then for a period of one (1)
year after Executive’s termination of employment, Executive will not solicit or seek to induce any
employee of the Company to discontinue that person’s or entity’s relationship with or to the
Company. For purposes of this paragraph it is expressly understood and agreed between Executive
and the Company that a general advertisement or announcement regarding employment opportunities
that does not specifically target Company employees shall not constitute solicitation of employees.
7. Arbitration. Any claim, dispute or controversy arising out of this Agreement, the
interpretation, validity or enforceability of this Agreement or the alleged breach thereof shall be
submitted by the parties to binding arbitration by the Judicial Arbitration and Mediation Service
(JAMS). The site of the arbitration proceeding shall be in Santa ▇▇▇▇▇ County, California, or
another location mutually agreed to by the parties.
8. Conflict in Benefits.
8.1 Effect of Agreement. This Agreement, together with the Letter, a copy of which is
attached hereto and incorporated herein by reference, the option agreements by which the option
grants referred to in the Letter are evidenced, option agreements relating to option grants issued
prior to the date of this Agreement, the indemnity agreement, and the confidentiality and invention
assignment agreement executed by Executive, shall supersede all prior arrangements, whether written
or oral, and understandings regarding Executive’s employment with the Company and shall be the
exclusive agreement for the determination of any compensation due to Executive from Company as a
result of Executive’s employment with Company. In the event of any conflict in these various
documents, the provisions of this agreement shall control the others and the Letter shall control
the option agreements.
9. Miscellaneous.
9.1 Additional Payments. Regardless of the basis of Executive’s termination of
employment with the Company and regardless whether Executive agrees to execute the mutual release
with the Company attached hereto as Exhibit A, if all or any portion of the amounts payable to
Executive or on Executive’s behalf under this agreement or otherwise are subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, or similar state tax or
assessment, the Company will pay executive an amount necessary to place Executive in the same
after-tax position as Executive would have been in had no such excise tax been imposed. The amount
payable pursuant to this preceding sentence shall be increased to the extent necessary to pay
income and excise taxes due on such amount. The determination of the amount of any such tax
indemnity shall be made by the independent accounting firm employed by the Company, which amount
shall be increased or decreased to reflect the results of any final determination by taxing
authorities in any administrative or judicial action and shall include any expenses reasonably
incurred by Executive in defending same. The amount payable pursuant to this paragraph shall be
sufficient to pay any interest and penalties determined to be due, and shall be grossed up for the
income tax due on the aggregate reimbursement. Amounts due shall be paid within 10 days after
demand by Executive, and no later than December 31 of the year following the year in which the
related taxes are remitted to the applicable taxing authorities.
9.2 Successors of the Company. The Company will require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, expressly, absolutely and
unconditionally to assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession or assignment had
taken place. In the event of a Change of Control in which the options granted by the Company to
Executive cannot be assumed by the successor or assign, Company shall give Executive reasonable
advanced notice of such Change of Control, all options granted by the Company to Executive shall
vest and become exercisable prior to such Change of Control, and Company shall allow Executive a
reasonable opportunity to exercise such options prior to such Change of Control.
9.3 Modification of Agreement. This Agreement and the Letter may be modified, amended
or superseded only by a written agreement signed by Executive and the Chairman of the Board of the
Company or an authorized member of the Board of Directors of the Company.
9.4 Governing Law. This Agreement shall be interpreted in accordance with and governed
by the laws of the State of California.
9.5 Nondisparagement. Executive agrees that neither he nor anyone acting by,
through, under or in concert with him shall disparage or otherwise communicate negative statements
or opinions about the Company, its Board members, officers, employees or business. The Company
agrees that neither its Board members nor officers shall disparage or otherwise communicate
negative statements or opinions about Executive.
9.6 No Employment Agreement. Executive acknowledges and understands that his
employment with the Company is at-will and can be terminated by either party for no reason or for
any reason not otherwise specifically prohibited by law. Nothing in this Agreement is intended to
alter Executive’s at-will employment status or obligate the Company to continue to employ Executive
for any specific period of time, or in any specific role or geographic location.
9.7 Survival. As applicable, the covenants, agreements, representations and
warranties contained in or made in this Agreement shall survive any termination of Executive’s
services to the Company or any termination of this Agreement as stated in such provision, or if no
such time period is specifically set forth then for a period of three years
9.8 Code Section 409A.
(a) The parties intend that the severance payments payable under this Agreement qualify either
for the short-term deferral exception to Code Section 409A (as described in Treas. Reg. Section
1.409A-1(b)(4)) or the involuntary separation from service exception to Code Section 409A (as
described in Treas. Reg. Section 1.409A-1(b)(9)(iii) and therefore are not subject to the six-month
delay described in subparagraph (c) below. In any event this Agreement shall be interpreted and
administered in a manner so that any amount or benefit payable hereunder shall be paid or provided
in a manner that is either exempt from or compliant with the requirements Section 409A of the Code
and applicable Internal Revenue Service guidance and Treasury Regulations issued thereunder (and
any applicable transition relief under Section 409A of the Code).
(b) Notwithstanding anything in this Agreement to the contrary, to the extent that any amount
or benefit that would constitute non-exempt “deferred compensation” for purposes of Section 409A of
the Code would otherwise be payable or distributable hereunder, or a different form of payment
would be effected, by reason of Executive’s termination of employment, such amount or benefit will
not be payable or distributable to Executive, and/or such different form of payment will not be
effected, by reason of such circumstance unless the circumstances giving rise to Executive’s
termination of employment meet the description or definition of “separation from service” in
Section 409A of the Code and applicable regulations, or (ii) the payment or distribution of such
amount or benefit would be exempt from the application of Section 409A of the Code by reason of the
short-term deferral exemption or otherwise. This provision does not prohibit the vesting of any
amount upon a termination of employment, however defined. If this provision prevents the payment or
distribution of any amount or benefit, such payment or distribution shall be made on the date, if
any, on which an event occurs that constitutes a Section 409A-compliant “separation from service”
occurs, or such later date as may be required by subsection (c) below.
(c) Notwithstanding anything in this Agreement to the contrary, if any amount or benefit that
would constitute non-exempt “deferred compensation” for purposes of Section 409A of the Code would
otherwise be payable or distributable under this Agreement by reason of Executive’s separation from
service during a period in which Executive is a Specified Employee (as defined below), then,
subject to any permissible acceleration of payment by the Company under Treas. Reg. Section
1.409A-3(j)(4)(ii) (domestic relations order), (j)(4)(iii) (conflicts of interest), or (j)(4)(vi)
(payment of employment taxes):
| (i) | if the payment or distribution is payable in a lump sum, Executive’s right to receive payment or distribution of such non-exempt deferred compensation will be delayed until the earlier of Executive’s death or the first day of the seventh month following Executive’s separation from service; and | ||
| (ii) | if the payment or distribution is payable over time, the amount of such non-exempt deferred compensation that would otherwise be payable during the six-month period immediately following Executive’s separation from service will be accumulated and Executive’s right to receive payment or distribution of such accumulated amount will be delayed until the earlier of Executive’s death or the first day of the seventh month following Executive’s separation from service, whereupon the accumulated amount will be paid or distributed to Executive on such date and the normal payment or distribution schedule for any remaining payments or distributions will resume. |
(d) For purposes of this Agreement, the term “Specified Employee” has the meaning given such
term in Code Section 409A and the final regulations thereunder.
EXECUTIVE
|
MOVE, INC. | ||||
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
By: | /s/ ▇▇▇ ▇▇▇▇▇▇▇ | |||
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
Name: | ▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: | Chairman of the Board | ||||
EXHIBIT A
MUTUAL GENERAL RELEASE
This Separation Agreement and General Release (“Agreement”) is entered into between ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ (“You”) and Move, Inc., on behalf of itself and its divisions, subsidiaries and
affiliated entities (the “Company”) based upon the following facts:
A. You have been employed by the Company as Chief Executive Officer, Move, Inc., pursuant to
an offer letter signed by you, dated January 21, 2009 (the “Offer Letter”); and
B. On __________________, ______, a [Termination in Absence of Change of Control/Termination Upon
Change of Control] event, as defined in your Executive Retention and Severance Agreement dated
January ___, 2009 (“Retention Agreement”) occurred. By this Agreement, You and the Company mutually
agree to the terms of your final separation from the Company and termination of your employment,
effective as of the close of business on __________________, ______(“Termination Date”).
Based upon the above facts, You and the Company acknowledge and agree:
| 1. | Cessation of Employment: That your termination as an employee of the Company ceases as of the close of business on the Termination Date for all purposes, including without limitation as an officer of the Company and any of its subsidiaries. | ||
| 2. | Separation Benefits: Immediately after this Agreement has been executed by you and delivered to the Company and the revocation period set forth in Paragraph 3(b) below has expired, the Company will pay You the Cash Severance as set forth in [Section 2 or 3, as applicable] of the Retention Agreement, less all appropriate taxes and withholdings (“Severance Pay”). You understand that in addition to the Severance Pay, You shall be entitled to all other benefits set forth in Section [2 or 3, as applicable] of the Retention Agreement. | ||
| 3. | Release and Discharge of Claims: |
| a. | Except with respect to the obligations of the Company and Your rights under the Retention Agreement, in consideration of the covenants undertaken herein by the Company, to the fullest extent permitted by law, You hereby covenant not to ▇▇▇ and fully release and discharge the Company, and all divisions, and subsidiaries, and all respective officers, directors, shareholders, agents, and employees thereof past, present or future (collectively, “Released Parties”), with respect to and from, any and all claims, demands, rights, actions, costs, expenses, damages, orders and liabilities of whatever kind or nature, in law, equity or otherwise, whether now known or unknown, suspected or unsuspected, and whether or not concealed or hidden, which You now own or hold, or have at anytime held, or may in the future hold against the Released |
| Parties, arising out of, or in any way connected to Your employment relationship with the Company, Your termination, or any other events, acts or omissions occurring prior to Your execution of this Agreement (“Claim(s)”). Your release of any such Claim(s) includes, but is not limited to, any action under any federal, state or local constitution, statute, regulation, or common law; including but not limited to, any Claim based on discrimination, retaliation, harassment, breach of contract, or any Claim for severance pay, bonus (under the Offer Letter or otherwise), or any other employee benefit. You hereby warrant and represent that You have not filed any complaint and/or other Claim against any of the Released Parties, with any court or government entity. You warrant and represent that You shall not seek any personal recovery from any of the Released Parties, in connection with any matter released. To the fullest extent permitted by law, You represent and warrant that You shall not hereafter, individually, nor as a member of a class, file any action against the Released Parties arising out of or in any way related to any Claim released by You. Notwithstanding the foregoing, You do not release (i) claims for unemployment compensation or any state disability insurance benefits pursuant to the terms of applicable state law; (ii) claims to continued participation in certain of the Company’s group benefit plans pursuant to the terms and conditions of COBRA; (iii) claims to any benefit entitlements vested as the date of such release, pursuant to written terms of any employee benefit plan (including without limitation any equity compensation plan) of the Company or its subsidiaries; (iv) Your right to bring to the attention of the Equal Employment Opportunity Commission and/or California Department of Fair Employment and Housing claims of discrimination; provided, however, that You do release Your right to secure any damages for alleged discriminatory treatment; (v) any obligation of the Company under California Labor Code Section 2802 or the indemnification provisions of the Company’s Certificate of Incorporation or Bylaws; and (vi) claims pursuant to the California Workers’ Compensation Act. | |||
| b. | The general release contained herein specifically includes a waiver and release of all claims that You have or may have under the Age Discrimination in Employment Act, as amended, 29 U.S.C. Sections 621 et seq. (“ADEA”), based on Your employment with the Company, the termination of Your employment, or any event, transaction, occurrence, act or omission occurring on or before the date on which You execute this Agreement. By signing this Agreement, You acknowledge and agree that the releases contained herein, including the ADEA release, do not cover rights or claims that may arise after the date on which You sign this Agreement; [that You have been advised to consult an attorney before signing this Agreement; that You have up to twenty-one (21) calendar days from the date You are presented with this Agreement to consider whether or not to sign it; that You are knowingly and voluntarily waiving and releasing Your rights, including Your rights under the ADEA, only in exchange for consideration (something of value) in addition to anything of value to which You are otherwise already entitled, and that if You sign this Agreement, You will have the right to revoke this Agreement within seven (7) calendar days of signing this Agreement |
| and that this Agreement shall not become effective or enforceable until after this revocation period has expired. You may revoke this Agreement by delivering a written notice to the General Counsel of Move, Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, which notice must be delivered or postmarked within seven (7) days of Your execution of this Agreement. | |||
| c. | The Company hereby covenants not to ▇▇▇ and releases You with respect to and from, any and all claims, demands, rights, actions, costs, expenses, damages, orders and liabilities of whatever kind or nature, in law, equity or otherwise, whether now known or unknown, suspected or unsuspected, and whether or not concealed or hidden, which it now owns or holds, or has at anytime before owned or held, or may in the future hold against You, including without limitation such claims arising out of, grounded upon, or in any way connected to Your employment relationship with the Company or Your termination from that employment. The Company hereby warrants and represents that it shall not seek nor be entitled to personal recovery from You in connection with any matter released herein. |
| 4. | Belated Discovery: As part of the foregoing general release of claims, and not by way of limitation, You and the Company each expressly waive all of your respective rights under Section 1542 of the California Civil Code or any similar law of any other jurisdiction. California Civil Code Section 1542 states: |
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
| You and the Company acknowledge, understand and agree that either You or the Company may later discover claims or facts in addition to or different from those which You and Company now know or believe to be true with respect to the subject matters of this Agreement, but that it is nevertheless Your intention, and the Company’s intention, by signing this Agreement to fully, finally and forever release any and all claims whether now known or unknown, suspected or unsuspected, which now exist, may exist, or previously have existed as set forth herein. | |||
| 5. | No Assignment of Claims: You represent and agree that You have not assigned or transferred any Claim against any of the Released Parties, or any portion or interest of any Claim, and You agree to indemnify, defend and hold harmless the Released Parties against any and all Claims based on, arising out of or in connection with, any such transfer or assignment of any Claim. The Company represents and agrees that it has not assigned or transferred any claim against You, and agrees to indemnify, defend You and hold You harmless against any and all claims based on, arising out of or in connection with, any such transfer or assignment of any claim. This Agreement |
| shall be binding upon the Company’s successors and assigns, and Your heirs, estate, personal representatives, executors and administrators. | |||
| 6. | No Other Payment or Monies Owed: You agree that on signing this Agreement, You have been compensated by the Company in full for all wages and vacation pay earned and accrued by You through the Termination Date and that, except for the Severance Pay described in Paragraph 2 and all other benefits set forth in Paragraph 2 above, no other wages, or compensation of any kind whatsoever are owed to You or will be paid to You. You understand and agree that except for the Severance Pay and such other benefits in Paragraph 2, You are not eligible and shall not receive any other separation payment from the Company in connection with Your employment, termination or executing this Agreement. | ||
| 7. | Company Benefits: Except as set forth in Paragraph 2 and as mandated by applicable law, all Company-sponsored employee benefits provided to You ceased or will cease as of the close of business on the Termination Date. | ||
| 8. | Return of Company Property: You represent and agree that You have returned to the Company any and all company property in Your possession, custody or control, and/or in the possession, custody or control of Your agents or representatives, including all originals and all copies of documents, computer disks, files, contact lists, and all the Company’s equipment, including telephones, and computers. | ||
| 9. | No Admission of Liability: This Agreement shall not be construed as an admission that either party has acted wrongfully or unlawfully. The parties each disclaim any liability to or wrongful acts or omissions against the other party or any person. Neither this Agreement nor anything in it shall be admissible in any proceeding as evidence of any unlawful or wrongful conduct by either party or any Released Parties. | ||
| 10. | Confidentiality: You acknowledge that as a result of Your employment with the Company, You have had access to the Company’s “confidential information,” as that term is defined in the Company’s Code of Conduct and Business Ethics in effect during your employment with the Company (the “Code”). You understand and agree that You continue to be bound by the terms and obligations of the Code, that You will hold all confidential information in the strictest confidence, and that You will not make use of such confidential information on behalf of anyone. Any breach of this paragraph by You shall be a material breach of this Agreement. | ||
| 11. | Non-disparagement: You and the Company agree to refrain from making any statements or taking any actions to disparage the other party, directly or indirectly, that harm the other party’s business interests, reputation or goodwill. | ||
| 12. | Severability: Should any part, term or provision of this Agreement, with the exception of the releases embodied in Paragraph 3 be determined by any Court or other tribunal of competent jurisdiction to be invalid or unenforceable, such invalid or unenforceable part, term or provision shall be deemed stricken and severed from this |
| Agreement and any and all of the other terms of this Agreement shall remain in full force and effect to the fullest extent permitted by law. The releases embodied in Paragraph 3 are of the essence of this Agreement and should You take any action to have any part of Paragraph 3 deemed to be invalid or unenforceable, or should any part of Paragraph 3 be deemed to be invalid or unenforceable, the Company may, in its sole discretion, declare this Agreement to be null and void, and any Severance Pay and bonus amount (if any) received by You shall be returned to the Company. | |||
| 13. | Enforcement of this Agreement and Arbitration: This Agreement shall be governed and construed in accordance with the laws of the State of California, without regard to principles of conflict of laws. Any controversy or claim arising out of or relating to this Agreement, its enforcement or interpretation, or arising out of or relating in any way to your employment or termination, shall be submitted to arbitration by the Judicial and Mediation Service (“JAMS”), to be held in Santa ▇▇▇▇▇ County, California, in accordance with the rules of JAMS then in effect and applicable to employment disputes. If any arbitration or action at law or in equity is brought to enforce, interpret, or rescind this Agreement, the prevailing party shall be entitled to all of its costs in bringing the arbitration or action, including attorneys’ fees. | ||
| 14. | Entire Agreement: You acknowledge that in entering this Agreement You have not relied on any oral or written promises, statements, or representations, made to You by any Company representative, except as expressly stated in this Agreement. This Agreement contains the full and complete understanding and agreement between You and the Company with respect to the within subject matters and supersedes all prior agreements between You and the Company regarding the same. This Agreement may not be modified or amended except by a written instrument executed by both parties hereto. | ||
| 15. | Counterpart Execution and Use of Photocopies: This Agreement may be executed in counterparts and transmitted by facsimile, and each counterpart, when executed, shall have the efficacy of a signed original. Photographic copies of such signed counterparts may be used in lieu of the originals. | ||
| 16. | Effect of, Waiver of Breach: No waiver of any breach of any term or provision of this Agreement shall be construed to be a waiver of any other breach of this Agreement. No waiver shall be binding unless in writing and signed by the party waiving the breach. | ||
| 17. | Consultation With Counsel: You acknowledge that You have carefully read and fully understand this Agreement, and that You have had the opportunity to raise with the Company any questions, concerns or issues You may have in connection with this Agreement, or its terms. You further acknowledge that You have had the opportunity, and taken it to the extent You deemed appropriate and necessary, to consult legal counsel of Your choice in connection with this Agreement and consent to all of the terms and provisions contained herein knowingly, voluntarily and without any reservation whatsoever. |
PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES A MUTUAL RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||||||
| Dated: | |||||||
| MOVE, INC. |
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By:
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Dated: | ||||||
Its: |
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