Executive Retention and Severance
Agreement
This Executive
Retention and Severance Agreement (the
“Agreement” ) is made and entered
into as of October 5, 2006 (the “Effective
Date” ), by and between Move, Inc. and James
S. Caulfield (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 remain in the employ of the Company (as
defined in Section 4.3) and to continue 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, 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 Accrued
Salary and Vacation, and Benefits . 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, the Company shall pay 100% of the Executive’s COBRA
premiums for the same or reasonably equivalent medical coverage he
had on the date of his termination for a period not to exceed the
earlier of one (1) year following termination or until
Executive becomes eligible for medical insurance coverage at a new
employer.
2.2 Cash
Severance Payment . Executive shall receive a lump sum payment
in an amount equal to twelve (12) months of Executive’s
base salary (less applicable withholding), paid within five
(5) business days after the conclusion of the transition
period (or after the termination date if there is no transition
period requested by the Company).
2.3 Stock Award
Acceleration . Immediately prior to the effective date of the
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, and the options described in the letter
from W. Michael Long dated October 5, 2006 (the “
Letter ”), (collectively the “
Outstanding Options ”), shall vest. In
addition, all Outstanding Options, including the accelerated
options described above, shall be exercisable by Executive for a
period of one year following the end of such transition period (if
any) or one (1) year following termination if the Company
requests no transition period.
2.4 Cash Bonus
Payment . Executive shall receive a payment in an amount (the
“ Minimum Bonus Payment ”) equal to fifty
percent (50%) of Executive’s “Target Bonus” for
the year in which Executive’s termination date occurs. In
addition, if Executive’s termination date occurs in the
second half of the year (i.e., after June 30th), and all
financial performance criteria established in Executive’s
bonus plan are achieved by the Company for the full year in which
Executive’s termination date occurs, then the Company will
pay Executive an additional amount
(the “
Contingent Bonus Payment ”) equal to (i) a
pro rata portion of Executive’s Target Bonus prorated based
on the number of days Executive is employed by the Company during
such year, less (ii) the Minimum Bonus Payment. “
Target Bonus ” means the total bonus amount
Executive would be entitled to receive for the entire year assuming
achievement of 100% of the financial and non-financial objectives
established in Executive’s bonus plan (but not including any
additional bonus amount payable for over achievement of
objectives). The Minimum Bonus Payment shall be paid in a lump sum
within five (5) business days after the conclusion of the
transition period (or after the termination date if there is no
transition period requested by the Company) without regard to the
actual satisfaction of any performance criteria. The Contingent
Bonus Payment, if any, shall be paid in a lump sum within ninety
(90) days after the end of the year in which Executive’s
termination date occurs. Payments under this section shall be less
applicable withholding.
3.
Termination in Absence of Change of Control . In the event
of Executive’s Termination in Absence of a Change of Control,
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 Basic
Severance Compensation . 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,
the Company shall pay 100% of the Executive’s COBRA premiums
for the same or reasonably equivalent medical coverage he had on
the date of his termination for a period not to exceed the earlier
of one (1) year following termination or until Executive
becomes eligible for medical insurance coverage at a new
employer.
3.2 Cash
Severance Payment. Executive shall receive an amount equal to
twelve (12) months of Executive’s base salary (less
applicable withholding), paid within five (5) business days
after the conclusion of the transition period (or termination date
if there is no transition period requested by the
Company.)
3.3 Stock Award
Acceleration . Upon Executive’s termination date, 100% of
all outstanding stock options granted and restricted stock issued
by the Company to Executive prior to the date of this Agreement,
including the options described in the letter from W. Michael Long
dated October 5, 2006 (the “ Letter
”), (collectively the “ Outstanding
Options ”), shall vest. In addition, all Outstanding
Options, including the accelerated options described above, shall
be exercisable by Executive for a period of one (1) year
following the end of such transition period (if any) or one year
following termination if the Company requests no transition
period.
3.4 Cash Bonus
Payment . Executive shall receive a payment in an amount (the
“ Minimum Bonus Payment ”) equal to fifty
percent (50%) of Executive’s “Target Bonus” for
the year in which Executive’s termination date occurs. In
addition, if Executive’s termination date occurs in the
second half of the year (i.e., after June 30th), and all
financial performance criteria established in Executive’s
bonus plan are achieved by the Company for the full year in which
Executive’s termination date occurs, then the Company will
pay Executive an additional amount
(the “
Contingent Bonus Payment ”) equal to (i) a
pro rata portion of Executive’s Target Bonus prorated based
on the number of days Executive is employed by the Company during
such year, less (ii) the Minimum Bonus Payment. “
Target Bonus ” means the total bonus amount
Executive would be entitled to receive for the entire year assuming
achievement of 100% of the financial and non-financial objectives
established in Executive’s bonus plan (but not including any
additional bonus amount payable for over achievement of
objectives). The Minimum Bonus Payment shall be paid in a lump sum
within five (5) business days after the conclusion of the
transition period (or after the termination date if there is no
transition period requested by the Company) without regard to the
actual satisfaction of any performance criteria. The Contingent
Bonus Payment, if any, shall be paid in a lump sum within ninety
(90) days after the end of the year in which Executive’s
termination date occurs. Payments under this section shall be less
applicable withholding.
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) your willful and
continued failure to perform substantially your duties with the
Company (other than any such failure resulting from incapacity due
to physical or mental illness, and specifically excluding any
failure by you, after reasonable efforts, to meet performance
expectations), for thirty (30) days after a written demand for
substantial performance is delivered to you by the Chief Executive
Officer of Move which specifically identifies the manner in which
the Chief Executive Officer believes that you have not
substantially performed your duties, or (b) your 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 you,
shall be considered “willful” unless it is done, or
omitted to be done, by you in bad faith without reasonable belief
that your 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 survivin
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