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EMPLOYMENT AGREEMENT

Employment Agreement

EMPLOYMENT AGREEMENT | Document Parties: Cendant Corporation | Domus Acquisition Corp | Domus Holdings Corp | Realogy Corporation You are currently viewing:
This Employment Agreement involves

Cendant Corporation | Domus Acquisition Corp | Domus Holdings Corp | Realogy Corporation

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Title: EMPLOYMENT AGREEMENT
Governing Law: Delaware     Date: 8/11/2009
Industry: Real Estate Operations     Law Firm: Wachtell Lipton;Simpson Thacher     Sector: Services

EMPLOYMENT AGREEMENT, Parties: cendant corporation , domus acquisition corp , domus holdings corp , realogy corporation
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Exhibit 10.4

 

  

EMPLOYMENT AGREEMENT (this

Agreement ”) dated as of April 10, 2007, between

REALOGY CORPORATION , a Delaware

corporation, (the “ Company ”) and RICHARD A.

SMITH (“ Executive ”).

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


 
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