Exhibit 10.4
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EMPLOYMENT AGREEMENT (this
“ Agreement ”) dated as of
April 10, 2007, between
REALOGY CORPORATION , a Delaware
corporation, (the “ Company
”) and RICHARD A.
SMITH (“ Executive ”).
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WHEREAS, pursuant to the Agreement and Plan of Merger,
made and entered into as of the 15th day of December, 2006, by and
among Domus Holdings Corp. (the “ Parent ”), the
Company and Domus Acquisition Corp. (the “ Merger
Agreement ”), Domus Acquisition Corp. will be merged with
and into the Company (the “ Transaction ”), and
the Company will be the surviving corporation in the
Transaction;
WHEREAS, in connection with the Transaction, the Company
desires to employ Executive and Executive desires to be employed by
the Company;
WHEREAS, the Company and Executive are parties to that
certain employment agreement dated as of the effective date of the
spin-off of the Company from Cendant Corporation, a Delaware
corporation, as such employment agreement has been amended or
supplemented through the Effective Date (as defined in
Section 1) (the “ Prior Agreement ”);
and
WHEREAS, Executive, as a condition of his employment,
will make a substantial investment in the Parent concurrently with
the closing of the Transaction by purchasing 830,000 shares of
common stock of the Parent, par value $0.01 (“ Common
Stock ”), at a price of $10.00 per share;
NOW THEREFORE,
in consideration of the mutual
covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Employment
Period .
The initial term of
Executive’s employment hereunder shall be for a period of
five (5) years (the “ Initial Term ”)
commencing on the closing of the Transaction (the “
Effective Date ”) and ending on the fifth anniversary
of the Effective Date, unless terminated earlier pursuant to
Section 3 (the “ Employment Period ”);
provided , however , that the Employment Period shall
automatically be renewed for an additional period of one
(1) year upon the expiration of the Initial Term unless either
party gives at least ninety (90) days’ written notice of
its intention not to renew the Employment Period. Upon
Executive’s termination of employment with the Company for
any reason, he shall immediately resign all positions with the
Company or any of its subsidiaries or affiliates, including any
position as a member of the Parent’s Board of Directors and a
member of the Company’s Board of Directors (the “
Board ”).
Section 2. Terms of
Employment .
(a) Position . During the
term of Executive’s employment under this Agreement,
Executive shall serve as Vice Chairman and President of the Company
and, effective as of January 1, 2008 (or such earlier date as
the Company’s current Chief Executive Officer
ceases serving in such position), Chief
Executive Officer of the Company and shall have such duties and
responsibilities as shall be assigned to Executive by the Board. In
performing his duties hereunder, Executive shall report directly to
the Board. Executive shall also serve as a member of the Board
during the Employment Period. At the request of the Company,
Executive shall also serve as an officer of any of its subsidiaries
or affiliates without additional compensation.
(b) Duties . During the
Employment Period, Executive agrees to devote all of his business
time to the business and affairs of the Company and to use
Executive’s reasonable best efforts to perform faithfully,
effectively and efficiently his responsibilities and obligations
hereunder. Notwithstanding the foregoing, nothing herein shall
prohibit Executive from (i) serving on civic or charitable
boards or committees and (ii) managing personal investments,
so long as such activities do not materially interfere with the
performance of Executive’s responsibilities
hereunder.
(c) Compensation .
(i) Base Salary . During the
Employment Period, Executive shall receive an initial annual base
salary in an amount equal to $1,000,000.00, which shall be paid in
accordance with the customary payroll practices of the Company (the
“ Annual Base Salary ”). Executive’s
Annual Base Salary shall be reviewed at least annually by the Board
but may not be reduced.
(ii) Bonuses . The Company
shall establish a performance-based bonus plan (the “
Plan ”) to be applicable for each fiscal year of the
Company (a “ Fiscal Year ”) ending during the
Employment Period pursuant to which Executive will be eligible to
receive an annual bonus (the “ Bonus ”) with
respect to each Fiscal Year of the Company ending during the
Employment Period (each, a “ Bonus Year ”). The
Board or the Compensation Committee of the Board (the “
Compensation Committee ”) will administer the Plan
and, in consultation with Executive, shall establish performance
objectives for each Fiscal Year, which performance objectives shall
be reasonably related to the Company’s business objectives.
In the event that, with respect to the applicable Fiscal Year of
the Company ending during the Employment Period, the Company
achieves the pre-established target performance goals based on
actual performance, Executive shall be entitled to receive a Bonus
in an amount equal to 200% of Executive’s Annual Base Salary
(“ Target Bonus ”). Subject to Section 4,
Executive will be entitled to receive the Bonus only upon the
Company’s achievement of the specified performance objectives
and if Executive is employed on the last day of the applicable
Bonus Year. The Bonus shall become payable on March 15 of the
year following the end of the applicable Bonus Year, provided that
the Board or Compensation Committee finally determines
(x) that the Company has achieved the applicable performance
objectives and (y) the amount of the bonus that shall be paid
to each executive entitled to receive a bonus for the applicable
Bonus Year. If the Board or Compensation Committee has not made
such final determination by March 15 of such year, the Bonus
(if any) shall instead be paid as soon as practicable thereafter
during such year.
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(iii) Benefits .
(1) During the Employment Period,
Executive shall be entitled to participate in all incentive,
savings and retirement plans, practices, policies and programs
applicable generally to other senior executives of the Company and
shall be eligible for participation in, and shall receive all
benefits under, welfare benefit plans, practices, policies and
programs provided by the Company to the extent applicable generally
to other senior executives of the Company (“ Benefit
Plans ”). The benefits provided to Executive shall be, in
the aggregate, comparable to those benefits that Executive was
receiving at the Company immediately prior to the Effective Date,
but excluding those benefits under any nonqualified deferred
compensation plans that are being amended or terminated in
connection with the Transaction or that relate to or provide
benefits or compensation measured with respect to the
Company’s common stock. In addition to the foregoing, the
Company shall continue to maintain the life insurance policy
arrangement (pursuant to which the Company issues Executive a bonus
payment, the net- after-tax proceeds of which are sufficient to pay
the amount of the premiums due on such policy) on the same terms
and conditions under which the Company maintains this arrangement
prior to the Effective Date.
(2) The Company (and any successor
to the business of the Company) acknowledges and agrees to provide
Executive the following benefits notwithstanding anything in this
Agreement to the contrary, and further acknowledges and agrees that
this provision shall survive any termination of Executive’s
employment or any termination of this Agreement. In addition to any
payments or benefits under the applicable provisions of
Section 4 of this Agreement, upon Executive’s
termination of employment from the Company and its subsidiaries for
any reason, including, without limitation, due to or following any
non-renewal of this Agreement, resignation, or termination by the
Company with or without Cause, Executive and each person who is his
covered dependent at such time under each applicable Welfare
Benefit Plan (defined below), shall remain eligible to continue to
participate in all of such plans (as they may be modified from time
to time with respect to all senior executive officers), or such
other welfare benefit plans subsequently made available to senior
executive officers of the Company or any successor Company (the
“ Post-Employment Plans ”) until the end of the
plan year in which Executive reaches, or would have reached, age
seventy-five (75) (such benefits, the “
Post-Employment Benefits ”). Executive is currently
eligible to participate in the following plans: Executive Physical
Exams, Medical Expense Reimbursement Plan (MERP), Medical
Insurance, Dental Insurance, Group Life Insurance (up to $1 million
coverage on Executive’s life), Vision Service Plan
(collectively, the “ Welfare Benefit Plans ”).
Coverage under such Post-Employment Plans shall be subject to
Executive and/or such dependents, as applicable, continuing to pay
the applicable employee portion of any premiums, co-payments,
deductibles and similar costs (as if Executive was still an
employee of the Company). Solely with respect to Executive’s
dependents, such coverage shall terminate upon such earlier date if
and when they become ineligible for any such benefits under the
terms of such Welfare Benefit Plans or Post-Employment Plans, as
applicable, and provided , that once Executive or his
dependents become eligible for Medicare or any other
government-sponsored medical insurance plan, or if Executive is
eligible to participate in any other company’s medical
insurance plan as an employee after the termination of his
employment, Executive or his dependents shall utilize such
government plan or other company plan, and the Company’s
insurance obligations as part of the Post-Employment Benefits
hereunder shall become secondary to such government plan or other
company plan. Notwithstanding the foregoing, the Company may meet
any of its foregoing obligations under the Post-Employment Plans by
paying for, or providing for the payment of, such benefits
directly
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or through alternative plans or individual
policies which are no less favorable in all material respects (with
respect to both coverage and cost to Executive) to the
Post-Employment Plans, provided that the Company shall use its best
efforts to assure that provision of the Post-Employments Benefits
complies with Section 409A of the Internal Revenue Code of
1986, as amended (the “ Code ”).
(iv) Expenses . During the
term of Executive’s employment, Executive shall be entitled
to receive reimbursement for all reasonable business expenses
incurred by Executive in performance of his duties hereunder,
provided that Executive provides all necessary documentation in
accordance with Company policy.
(v) Stock Options .
Concurrent with the closing of the Transaction, the Company shall
cause the Parent to grant Executive a stock option (the “
Option Grant ”) to purchase 3,112,500 shares of Common
Stock, at an exercise price of $10.00 per share. The Option Grant
will be pursuant and subject to the terms and conditions set forth
in the Parent’s 2007 Stock Incentive Plan (the “
Stock Incentive Plan ”) and Executive’s option
agreement associated with the Option Grant (the “ Option
Agreement ”, which is attached hereto as Appendix
[ ]), and Executive’s purchase of the
Purchased Shares as provided in Section 2(c)(vii)
below.
(vi) Restricted Stock .
Concurrent with the closing of the Transaction, the Company shall
cause the Parent to grant Executive a grant (the “
Restricted Stock Grant ”) of restricted shares of
Common Stock (“ Restricted Shares ”). The
Restricted Stock Grant will be pursuant and subject to the terms
and conditions set forth in the Stock Incentive Plan and the
restricted stock agreement evidencing such grant (the “
Restricted Stock Agreement ”, which is attached hereto
as Appendix [ ]). The Restricted Stock Grant
will be comprised of 100,000 Restricted Shares and shall be subject
to the vesting, termination and other terms set forth in the
Restricted Stock Agreement.
(vii) Investment . Concurrent
with the closing of the Transaction, Executive shall purchase
830,000 shares of Common Stock, at a price of $10.00 per share (the
“ Purchased Shares ”). The Purchased Shares
shall be subject to the terms of the Stock Incentive Plan and
Executive’s Subscription Agreement (attached hereto as
Appendix [ ]) and Executive’s
Contribution Agreements (attached hereto as Appendix
[ ]). All of the Purchased Shares will be
fully vested at the Effective Date.
(viii) Investment Bonus . The
Company acknowledges that, in connection with the consummation of
the Transaction, Executive is entitled to receive a one-time bonus
in an amount equal to (i) $5 million, less
(ii) applicable withholding taxes (such amount, less such
taxes, the “ Investment Bonus ”). Executive
hereby elects to receive the Investment Bonus in the form of fully
vested shares of Common Stock (using a per share price equal to
$10.00 for purposes of determining the number of such shares),
which the Company will deliver to Executive no later than five days
after the Effective Date. Executive acknowledges and agrees that
the Common Stock that Executive receives pursuant to the Investment
Bonus is in addition to any other purchase of Common Stock that
Executive has agreed to make, including without limitation, any
such purchase pursuant to the Subscription Agreement; provided
however that the amount invested pursuant to the Investment Bonus
shall offset the amounts that Executive is
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otherwise required to invest. The Investment
Bonus shall not be taken into account in computing any benefits or
entitlements under any benefit or incentive plan of the Company or
its affiliates or agreement between the Company or any of its
affiliates and Executive, including, without limitation, this
Agreement, and shall not be subject to deferral.
(ix) Management Investor Rights
Agreement . All Purchased Shares, shares purchased pursuant to
the Investment Bonus, Restricted Shares, the Option Grant and
Common Stock held by Executive pursuant to the vesting of
Restricted Shares and the exercise of the Option Grant will be
subject to the terms and conditions of the Management Investor
Rights Agreement by and among the Parent, Executive, and other
signatories thereto (the “ Management Investor Rights
Agreement ”), including the restrictive covenants
contained in Annex I to Section 8 thereof. The Option
Agreement, Stock Incentive Plan, Restricted Stock Agreement,
Management Investor Rights Agreement, Subscription Agreement and
any other stock or stock-based award agreement entered into by and
between the Company and Executive after the date hereof,
collectively, (the “ Equity Documents
”).
Section 3. Termination of
Employment .
(a) Death or Disability .
Executive’s employment hereunder shall terminate
automatically upon Executive’s death. If Executive becomes
subject to a Disability during the Employment Period (pursuant to
the definition of Disability set forth below), the Company may give
Executive written notice in accordance with Sections 3(e) and 10(h)
of its intention to terminate Executive’s employment. For
purposes of this Agreement, “ Disability ” means
(i) Executive’s inability to engage in any substantial
gainful activity by reason of any medically determinable physical
or mental impairment that can be expected to result in death or can
be expected to last for a continuous period of not less than 12
months, or (ii) Executive is, by reason of any medically
determinable physical of mental impairment that can be expected to
result in death or can be expected to last for a continuous period
of not less than 12 months, receiving income replacement benefits
for a period of not less than three months under an accident or
health plan covering employees of the Company. Whether Executive
has incurred a “Disability” shall be determined by a
physician selected by the Company or its insurers.
(b) Cause . Executive’s
employment may be terminated at any time by the Company for Cause.
For purposes of this Agreement, “ Cause ” shall
mean (i) Executive’s willful failure to substantially
perform his duties as an employee of the Company or any subsidiary
(other than any such failure resulting from incapacity due to
physical or mental illness), (ii) any act of fraud,
misappropriation, dishonesty, embezzlement or similar conduct
against the Company or any subsidiary, (iii) Executive’s
conviction of, or plea of guilty or nolo contendere to a
charge of commission of, a felony or crime involving moral
turpitude, (iv) Executive’s indictment for a charge of
commission of a felony or any crime involving moral turpitude,
provided that the Board determines in good faith that such
indictment would result in a material adverse impact to the
business or reputation of the Company, (v) Executive’s
gross negligence in the performance of his duties, or
(vi) Executive purposefully or negligently makes (or has been
found to have made) a false certification to the Company pertaining
to its financial statements; a termination will not be for
“Cause” pursuant to clause (i), (ii) or (v), to
the extent such conduct is curable, unless the Company shall have
notified Executive in writing describing such conduct and Executive
shall have failed to cure such conduct within ten
(10) business days after his receipt of such written
notice.
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(c) Termination Without Cause
. The Company may terminate Executive’s employment hereunder
without Cause at any time.
(d) Good Reason .
Executive’s employment may be terminated at any time by
Executive for Good Reason or without Good Reason upon 90
days’ prior written notice, provided, in the case of a
termination for Good Reason, that Executive provides such notice
within 60 days after the occurrence of the event giving rise to the
termination for Good Reason. For purposes of this Agreement,
“ Good Reason ” means voluntary resignation
after any of the following actions taken by the Company or any of
its subsidiaries without Executive’s consent:
(i) removal from, or failure to be elected or re-elected to,
the Board; (ii) a material reduction of Executive’s
duties and responsibilities to the Company, (iii) a reduction
in Executive’s Annual Base Salary or Target Bonus (not
including any diminution related to a broader compensation
reduction that (A) is made in consultation with Executive and
(B) is applied to all senior executives of the Company in a
relatively proportionate matter); (iv) the relocation of
Executive’s primary office to a location more than 30 miles
from the prior location; (v) delivery of notice of non-renewal
of the Employment Period by the Company (other than non-renewal by
the Company due to Executive’s Disability, termination for
Cause or termination by Executive); or (vi) a material breach
by the Company of a material provision of this Agreement (which for
the avoidance of doubt includes Section 2(a) of this
Agreement); a termination shall not be for “Good
Reason” pursuant to clause (i), (ii), (iii) or (iv),
unless Executive shall have given written notice of his intention
to resign for Good Reason and the Company shall have failed to cure
the event giving rise to Good Reason within ten (10 ) business days
after the Company’s receipt of such written
notice.
(e) Notice of Termination .
Any termination by the Company for Cause or without Cause, or by
Executive f