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Published: 2008-03-26

Executive Retention and Severance Agreement - Homestore.com Inc. and Patrick R. Whelan



                   Executive Retention and Severance Agreement

This Executive Retention and Severance Agreement (the "Agreement") is made and
entered into as of April 24, 2002 (the "Effective Date"), by and between
Homestore.com, Inc. (the "Company") and Patrick R. Whelan (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
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remain in the employ of the Company 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
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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 exceeds the earlier of one 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
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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, including the options described in the Memorandum from Jack Dennison
dated March 29, 2002, together with any options issued in a tender offer in
exchange for such outstanding options (collectively the "Outstanding Options"),
shall vest. In addition, all vested 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
year following termination if the Company requests no transition period.

     2.4 Cash Bonus Payment. Executive shall receive a payment in an amount (the
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"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 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 exceeds the earlier of one 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 Memorandum from Jack Dennison dated March 29, 2002, together
with any options issued in a tender offer in exchange for such outstanding
options (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 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

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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 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 in this Agreement shall have the meanings
   -----------
set forth in this Section

     4.1 "Cause" means (a) your willful and continued failure to perform
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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 or the Chief
Operating Officer of Homestore which specifically identifies the manner in which
the Chief Executive Officer or the Chief Operating Officer believes that you
have not substantially performed your duties, or (b) the willful engaging by you
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 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

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acquiring those assets is held by persons who held the voting securities of the
Company immediate 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 any one or more of the
foregoing.

     4.3 "Company" means Homestore.com, Inc., any successor thereto and,
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following a Change of Control, any successor or owner of substantially all the
business and/or assets of Homestore.com, 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 ten (10) days after notice by Executive specifying
the condition: (a) a reduction by the Company of Executive's duties,
responsibilities, authority or reporting relationship such that Executive no
longer serves in a substantive, senior executive role for the Company comparable
in stature to Executive's current role, or no longer reports to the chief
executive officer or chief operating officer of the Company; (b) a 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 (e) a material breach by the Company of the
terms of this Agreement (or the Memorandum to you from Jack Dennison dated March
29, 2002).

     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 either (1) is a director of
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the Company as of the Effective Date, or (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, but (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

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          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 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 twenty (120) 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 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

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          (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 twenty (120) 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. 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 awards 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 a form satisfactory to the
Company.

     5.3 Transition Period. In the event of Executive's Termination Upon a
         -----------------
Change of Control or Termination in Absence of a Change of Control, the Company
shall have the right exercisable by notice to Executive given at any time prior
to ten (10) days after the effective date of such termination to request that
Executive remain employed by the Company for such period following such
termination as the Company may elect, but in no event longer than 180 days
following the effective date of such termination. 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.

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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 restricted stock (if any), 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
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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, distributor, vendor,
representative or customer of the Company to discontinue that person's or
entity's relationship with or to the Company.

7. Arbitration. Any claim, dispute or controversy arising out of this Agreement,
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the interpretation, validity or enforceability of this Agreement or the alleged
breach thereof shall be submitted by the parties to binding arbitration by the
American Arbitration Association. The site of the arbitration proceeding shall
be in Los Angeles County, California, or another location mutually agreed to by
the parties.

8. Conflict in Benefits.
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     8.1 Effect of Agreement. This Agreement, together with the Memorandum to
         -------------------
you from Jack Dennison dated March 29, 2002, a copy of which is attached hereto
and incorporated herein by reference, the option agreements by which the option
grants referred to in the Memorandum are evidenced, and the confidentiality and
invention assignment agreement executed by you, 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 Memorandum shall control the option agreements.

9. Miscellaneous.
   -------------

     9.1 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

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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 in 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 in Control, all options granted by the
Company to Executive shall vest and become exercisable prior to such Change in
Control, and Company shall allow Executive a reasonable opportunity to exercise
such options prior to such Change in Control.

     9.2 Modification of Agreement.This Agreement and the Memorandum referred to
         -------------------------
in Section 8.1 above may be modified, amended or superceded only by a written
agreement signed by Executive and the Chief Executive Officer or an authorized
member of the Board of Directors of the Company.

     9.3 Governing Law. This Agreement shall be interpreted in accordance with
         -------------
and governed by the laws of the State of California.

     9.4 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.

EXECUTIVE                                  HOMESTORE.COM, INC.


                                           By:
----------------------------                   ---------------------------------
Patrick R. Whelan                              Name:
                                               Title:

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