Exhibit 10.7
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EMPLOYMENT AGREEMENT (this
“ Agreement ”) dated as of
April 10, 2007, between
REALOGY CORPORATION , a Delaware
corporation, (the “ Company
”) and BRUCE G.
ZIPF (“ 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
letter agreement dated as of November 7, 2006, as such letter
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 160,000 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 President and CEO, NRT Incorporated and
shall have such duties and responsibilities as shall be assigned to
Executive by the President of the Company (or, if the President of
the Company as of the Effective Date is no longer serving in such
position, the
Chief Executive Officer of the Company) (such
individual, the “ Reporting Person ”). In
performing his duties hereunder, Executive shall report directly to
the Reporting Person. 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 $500,000, 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
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 100% 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.
(iii) Benefits . 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
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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.
(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 600,000 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
160,000 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 Agreement (attached hereto as Appendix
[ ]). All of the Purchased Shares will be
fully vested at the Effective Date.
(viii) 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
”.
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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 9(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.
(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 the Reporting
Person and (B) is applied to all senior executives of the
Company in a relatively proportionate matter); (iv) the
relocation of
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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 for Good Reason or without Good Reason, shall be
communicated by Notice of Termination to the other party hereto
given in accordance with Section 9(h). For purposes of this
Agreement, a “ Notice of Termination ” means a
written notice that (i) indicates the specific termination
provision in this Agreement relied upon, (ii) to the extent
applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of
Executive’s employment under the provision so indicated and
(iii) if the Date of Termination (as defined below) is other
than the date of receipt of such notice, specifies the termination
date. The failure by Executive or the Company to set forth in the
Notice of Termination any fact or circumstance that contributes to
a showing of Good Reason or Cause shall not waive any right of
Executive or the Company hereunder or preclude Executive or the
Company from asserting such fact or circumstance in enforcing
Executive’s or the Company’s rights
hereunder.
(f) Date of Termination .
“ Date of Termination ” means (i) if
Executive’s employment is terminated by the Company for
Cause, without Cause or by reason of Disability, or by Executive
for Good Reason or without Good Reason, the date of receipt of the
Notice of Termination (in the case of a termination with or without
Good Reason, provided such notice is in accordance with
Section 3(d)) or any later date specified therein pursuant to
Section 3(e), as the case may be and (ii) if
Executive’s employment is terminated by reason of death, the
date of death.
Section 4. Obligations of
the Company upon Termination .
(a) With Good Reason; Without
Cause . If during the Employment Period, the Company shall
terminate Executive’s employment without Cause or Executive
shall terminate his employment for Good Reason, then the Company
will provide Executive with the following severance payments and/or
benefits:
(i) Prior to the thirtieth day
following the Date of Termination, the Company shall pay to
Executive in a lump sum, to the extent not previously paid,
(i) the Annual Base Salary through the Date of Termination,
and (ii) the Bonus earned for any Bonus Year ended prior to
the year in which the Date of Termination occurs, provided that
Executive was employed on the last day of such Bonus Year (the
“ Accrued Obligations ”); and
(ii) The Company will pay Executive
an aggregate sum of 100% of Executive’s Annual Base Salary
and Target Bonus (such amount, the “ Cash Severance
”) as
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follows: (i) one-half of the Cash Severance
shall be payable to Executive in a lump sum, within 30 business
days of the Date of Termination and (ii) 1/12 of the Cash
Severance will be payable to Executive in twelve (12) equal
monthly installments commencing as of the first day of the calendar
month following the month in which the Date of Termination
occurs.
Notwithstanding the foregoing
provisions of this Section 4(a), to the extent required in
order to comply with Section 409A of the Internal Revenue Code
of 1986, as amended (the “ Code ”), amounts to
be paid under this Section 4(a) shall be paid to Executive on
the first business day after the date that is six months following
Executive’s “separation from service” within the
meaning of Section 409A of the Code.
(