{"id":39911,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/executive-retention-and-severance-agreement-homestore-com-inc6.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"executive-retention-and-severance-agreement-homestore-com-inc6","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/executive-retention-and-severance-agreement-homestore-com-inc6.html","title":{"rendered":"Executive Retention and Severance Agreement &#8211; Homestore.com Inc. and Walter Lowry"},"content":{"rendered":"<pre>                   Executive Retention and Severance Agreement\n\nThis Executive Retention and Severance Agreement (the \"Agreement\") is made and\nentered into as of March   , 2002 (the \"Effective Date\"), by and between\n                         --\nHomestore.com, Inc. and Walter Lowry (the \"Executive\"). Capitalized terms used\nin this Agreement shall have the meanings set forth in Section 4, below.\n\n1. Purpose. The purpose of this Agreement is (i) to encourage Executive to\n   -------\nremain in the employ of the Company and to continue to devote Executive's full\nattention to the success of the Company and (ii) to provide specified benefits\nto Executive in the event of a Termination Upon Change of Control or a\nTermination in Absence of Change of Control, as such terms are defined in\nSection 4 of this Agreement.\n\n2. Termination Upon Change of Control. In the event of Executive's Termination\n   ----------------------------------\nUpon a Change of Control, provided that Executive complies with Section 6.2\nbelow and that Executive continues in the employment of the Company for such\nperiod, if any, as Executive's service is requested, with such period being no\nlonger than six (6) months, Executive shall receive the following payments and\nbenefits:\n\n     2.1 Accrued Salary and Vacation, and Benefits. Executive shall receive all\n         -----------------------------------------\nsalary and accrued vacation (less applicable withholding) earned through\nExecutive's termination date, and the benefits, if any, under Company benefit\nplans to which Executive may be entitled pursuant to the terms of such plans.\n\n     2.2 Cash Severance Payment. Executive shall receive a lump sum payment in\n         ----------------------\nan amount equal to twelve (12) months of Executive's base salary (less\napplicable withholding), paid within five (5) business days of Executive's\ntermination date.\n\n     2.3 Stock Award Acceleration. Immediately prior to the effective date of\n         ------------------------\nthe Change of Control, all outstanding stock options granted and restricted\nstock issued by the Company to Executive prior to the Change of Control shall\nhave their vesting accelerated by a number of months equal to twenty-four (24)\nmonths.\n\n     2.4 Cash Bonus Payment. Executive shall receive a payment in an amount\n         ------------------\nequal to a portion of Executive's target bonus for the year in which Executive's\ntermination date occurs prorated based on achievement of objectives and the\nnumber of days Executive is employed by the Company during such year (less\napplicable withholding).\n\n\n\n3. Termination in Absence of Change of Control. In the event of Executive's\n   -------------------------------------------\nTermination in Absence of a Change of Control, provided that Executive complies\nwith Section 6.2 below and that Executive continues in the employment of the\nCompany for such period, if any, as Executive's service is requested, with such\nperiod being no longer than six (6) months, Executive shall receive the\nfollowing payments and benefits:\n\n     3.1 Basic Severance Compensation. Executive shall receive all salary and\n         ----------------------------\naccrued vacation (less applicable withholding) earned through Executive's\ntermination date, and the benefits, if any, under Company benefit plans to which\nExecutive may be entitled pursuant to the terms of such plans.\n\n     3.2 Cash Severance Payment. Executive shall receive an amount equal to\n         ----------------------\ntwelve (12) months of Executive's base salary (less applicable withholding),\npayable over the twelve months following Executive's termination date on the\nCompany's regularly scheduled payroll dates.\n\n     3.3 Stock Award Acceleration. Upon Executive's termination date, all\n         ------------------------\noutstanding stock options granted and restricted stock issued by the Company to\nExecutive prior to Executive's Termination in Absence of Change of Control shall\nhave their vesting accelerated by a number of months equal to eighteen (18)\nmonths.\n\n     3.4 Cash Bonus Payment. Executive shall receive a payment in an amount\n         ------------------\nequal to a portion of Executive's target bonus for the year in which Executive's\ntermination date occurs prorated based on achievement of objectives and the\nnumber of days Executive is employed by the Company during such year (less\napplicable withholding).\n\n4. Certain Events Within 6 Months of Effective Date.\n   ------------------------------------------------\n\n     4.1 Voluntary Termination of Employment by Executive. In the event of the\n         ------------------------------------------------\nvoluntary termination of employment by Executive within six months of the\nEffective Date, other than pursuant to Section 2 or 3 above, provided that\nExecutive complies with Section 6.2 below and that Executive continues in the\nemployment of the Company for such period, if any, as Executive's service is\nrequested, with such period being no longer than the greater of (i) six (6)\nmonths from the Effective Date or (ii) if Executive gives notice of his intent\nto terminate his employment on or after the first 90 days following the\nEffective Date, 90 days, Executive shall receive the following payments and\nbenefits:\n\n          (a)  Basic Severance Compensation. Executive shall receive all salary\n               ----------------------------\n               and accrued vacation (less applicable withholding) earned through\n               Executive's termination date, and the benefits, if any, under\n               Company benefit plans to which Executive may be entitled pursuant\n               to the terms of such plans.\n\n          (b)  Cash Severance Payment. Executive shall receive a lump sum\n               ----------------------\n               payment in an amount equal to six (6) months of Executive's base\n               salary (less applicable withholding).\n\n          (c)  Stock Award Acceleration. Upon Executive's termination date, all\n               ------------------------\n               outstanding stock options granted and restricted stock issued by\n               the Company to Executive prior to Executive's Termination in\n               Absence of Change of\n\n                                      -2-\n\n\n\n               Control shall have their vesting accelerated by a number of\n               months equal to twelve (12) months; provided, however, that, for\n               purposes of this Section 4.1 (c), the number of stock options\n               granted to Executive shall be deemed to be 500,000 (i.e., vesting\n               of 125,000 options will be accelerated).\n\n          (d)  Cash Bonus Payment. Executive shall receive a payment in an\n               ------------------\n               amount equal to a portion of Executive's target bonus for the\n               year in which Executive's termination date occurs prorated based\n               on achievement of objectives and the number of days Executive is\n               employed by the Company during such year (less applicable\n               withholding).\n\n     4.2 Termination Without Cause. In the event of the termination of\n         -------------------------\nemployment of Executive by the Company without Cause within six months of the\nEffective Date, other than pursuant to Section 2 above, provided that Executive\ncomplies with Section 6.2 below and that Executive continues in the employment\nof the Company for such period, if any, as Executive's service is requested,\nwith such period being no longer than six (6) months, Executive shall receive\nthe following payments and benefits:\n\n          (a)  Basic Severance Compensation. Executive shall receive all salary\n               ----------------------------\n               and accrued vacation (less applicable withholding) earned through\n               Executive's termination date, and the benefits, if any, under\n               Company benefit plans to which Executive may be entitled pursuant\n               to the terms of such plans.\n\n          (b)  Cash Severance Payment. Executive shall receive a lump sum\n               ----------------------\n               payment in an amount equal to twelve (12) months of Executive's\n               base salary (less applicable withholding).\n\n          (c)  Stock Award Acceleration. Upon Executive's termination date, all\n               ------------------------\n               outstanding stock options granted and restricted stock issued by\n               the Company to Executive prior to Executive's Termination in\n               Absence of Change of Control shall have their vesting accelerated\n               by a number of months equal to twenty-four (24) months, provided,\n               however, that, for purposes of this Section 4.1 (c), the number\n               of stock options granted to Executive shall be deemed to be\n               500,000 (i.e., vesting of 250,000 options will be accelerated).\n\n          (d)  Cash Bonus Payment. Executive shall receive a payment in an\n               ------------------\n               amount equal to a portion of Executive's target bonus for the\n               year in which Executive's termination date occurs prorated based\n               on achievement of objectives and the number of days Executive is\n               employed by the Company during such year (less applicable\n               withholding).\n\n     4.3 Death or Disability of Executive. In the event of the death or\n         --------------------------------\ndisability of Executive that occurs within six months of the Effective Date,\nupon the occurrence of such event, all outstanding stock options granted and\nrestricted stock issued by the Company to Executive prior to such event shall\nhave their vesting accelerated by a number of months equal to six (6) months.\n\n                                      -3-\n\n\n\n5. Definitions. Capitalized terms used in this Agreement shall have the meanings\n   -----------\nset forth in this Section\n\n     5.1 \"Cause\" means Executive's (a) willful failure to follow the lawful\n          -----\nwritten directions of the Chief Executive Officer or the Board of Directors; (b)\nconviction of a felony; (c) engagement in misconduct which is materially\ndetrimental to the Company; (d) failure or refusal to comply in any material\nrespect to the Company's new hire confidentiality agreement, the Company's\ninsider trading policy, or any other reasonable policies of the Company where\nnon-compliance would be detrimental to the Company; or (e) willful and continued\nfailure to perform substantially the duties and responsibilities of the position\nthat Executive holds with the Company after a written demand for substantial\nperformance is delivered to Executive by the Chief Executive Officer of the\nCompany which specifically identifies the manner in which the Chief Executive\nOfficer believes that Executive has not substantially performed his duties.\n\n     5.2 \"Change of Control\" means (a) any \"person\" (as such term is used in\n          -----------------\nSections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the\n\"Exchange Act\")), other than a trustee or other fiduciary holding securities of\nthe Company under an employee benefit plan of the Company, becomes the\n\"beneficial owner\" (as defined in Rule 13d-3 promulgated under the Exchange\nAct), directly or indirectly, of securities of the Company representing 50% or\nmore of (A) the outstanding shares of common stock of the Company or (B) the\ncombined voting power of the Company's then-outstanding securities; (b) the\nCompany is party to a merger or consolidation, or series of related\ntransactions, which results in the voting securities of the Company outstanding\nimmediately prior thereto failing to continue to represent (either by remaining\noutstanding or by being converted into voting securities of the surviving or\nanother entity) at least fifty (50%) percent of the combined voting power of the\nvoting securities of the Company or such surviving or other entity outstanding\nimmediately after such merger or consolidation; (c) the sale or disposition of\nall or substantially all of the Company's assets (or consummation of any\ntransaction, or series of related transactions, having similar effect); (d)\nthere occurs a change in the composition of the Board of Directors of the\nCompany within a two-year period, as a result of which fewer than a majority of\nthe directors are Incumbent Directors; (e) the dissolution or liquidation of the\nCompany; or (f) any transaction or series of related transactions that has the\nsubstantial effect of any one or more of the foregoing.\n\n     5.3 \"Company\" means Homestore.com, Inc., any successor thereto and,\n          -------\nfollowing a Change of Control, any successor or assign to substantially all the\nbusiness and\/or assets of Homestore.com, Inc.\n\n     5.4 \"Diminution of Responsibilities\" means the occurrence of any of the\n          ------------------------------\nfollowing conditions, without Executive's consent: (a) Executive's no longer\nserving as an executive officer of the company or any successor thereto; (b) a\nreduction in Executive's base salary, provided that a reduction in base salary\nthat is the result of a general reduction in salary in an amount similar to\nreductions for other similarly situated Company executives shall not constitute\na \"Diminution of Responsibilities\"; (c) the Company's requiring Executive to be\nbased at any office or location more than 50 miles from the Company's\nheadquarters in Westlake Village, California; or (d) Executive's no longer\nholding the position of General Counsel reporting to the Chief Executive Officer\nof the Company or, if the Company is a subsidiary of another entity, the Chief\nExecutive Officer of the Company's ultimate parent corporation.\n\n                                      -4-\n\n\n\n     5.5 \"Disability\" means the inability to engage in the performance of\n          ----------\nExecutive's duties by reason of a physical or mental impairment which\nconstitutes a permanent and total disability in the opinion of a qualified\nphysician.\n\n     5.6 \"Incumbent Director\" means a director who either (1) is a director of\n          ------------------\nthe Company as of the Effective Date, or (2) is elected, or nominated for\nelection, to the Board of Directors of the Company with the affirmative votes of\nat least a majority of the Incumbent Directors at the time of such election or\nnomination, but (3) was not elected or nominated in connection with an actual or\nthreatened proxy contest relating to the election of directors to the Company.\n\n     5.7 \"Termination in Absence of Change of Control\" means:\n          -------------------------------------------\n\n          a) any termination of employment of Executive by the Company without\n          Cause (i) that occurs prior to the date that the Company first\n          publicly announces it has reached a definitive agreement that would\n          result in a Change of Control (even though still subject to approval\n          by the Company's stockholders and other conditions and contingencies),\n          (ii) that occurs after the Company announces that it has terminated\n          any such definitive agreement and does not thereafter enter into\n          discussions that lead to such a definitive agreement, or (iii) that\n          occurs more than twelve (12) months following a Change of Control; or\n\n          (b) any resignation by Executive based on a Diminution of\n          Responsibilities that occurs within one-hundred and twenty (120) days\n          following the occurrence of one of the conditions that constitutes a\n          Diminution of Responsibilities, but only where such Diminution of\n          Responsibilities occurs: (i) prior to the date that the Company first\n          publicly announces it has reached a definitive agreement that would\n          result in a Change of Control (even though still subject to approval\n          by the Company's stockholders and other conditions and contingencies),\n          (ii) after the Company announces that it has terminated any such\n          definitive agreement and does not thereafter enter into discussions\n          that lead to such a definitive agreement, or (iii) more than twelve\n          (12) months following a Change of Control.\n\n     The term \"Termination in Absence of Change of Control\" shall not include\nany other termination, including a termination of the employment of Executive\n(1) by the Company for Cause; (2) by the Company as a result of the Disability\nof Executive; (3) except as set forth in Section 4.3 above, as a result of the\ndeath of Executive; or (4) as a result of the voluntary termination of\nemployment by Executive for reasons other than a Diminution of Responsibilities.\n\n     5.8 \"Termination Upon Change of Control\" means:\n          ----------------------------------\n\n          (a) any termination of the employment of Executive by the Company\n          without Cause during the period commencing on or after the date that\n          the Company first publicly announces a definitive agreement that would\n          result in a Change of Control (even though still subject to approval\n          by the Company's stockholders and other conditions and contingencies)\n          and ending on the date which is twelve (12) months following a Change\n          of Control; or\n\n                                      -5-\n\n\n\n          (b) any resignation by Executive based on a Diminution of\n          Responsibilities where (i) such Diminution of Responsibilities occurs\n          during the period commencing on or after the date that the Company\n          first publicly announces a definitive agreement that would result in a\n          Change of Control (even though still subject to approval by the\n          Company's stockholders and other conditions and contingencies) and\n          ending on the date which is twelve (12) months following the Change of\n          Control, and (ii) such resignation occurs within one-hundred and\n          twenty (120) days following such Diminution of Responsibilities.\n\n     The term \"Termination Upon Change of Control\" shall not include any other\ntermination, including a termination of the employment of Executive (1) by the\nCompany for Cause; (2) by the Company as a result of the Disability of\nExecutive; (3) as a result of the death of Executive; or (4) as a result of the\nvoluntary termination of employment by Executive for reasons other than a\nDiminution of Responsibilities.\n\n6. Exclusive Remedy.\n   ----------------\n\n     6.1 No Other Benefits Payable. Executive shall be entitled to no other\n         -------------------------\ncompensation, benefits, or other payments from the Company as a result of any\ntermination of employment with respect to which the payments and\/or benefits\ndescribed in Sections 2 or 3 have been provided to Executive.\n\n     6.2 Release of Claims. The Company may condition payment of the cash\n         -----------------\nseverance and accelerated vesting of stock awards in Sections 2 or 3 of this\nAgreement upon the delivery by Executive of a signed mutual release of claims in\na form satisfactory to the Company.\n\n7. Agreement Not to Solicit. If Company performs its obligations to deliver the\n   ------------------------\nseverance payments and benefits set forth in Sections 2, 3 or 4 of this\nAgreement, then for a period of one (1) year after Executive's termination of\nemployment, Executive will not solicit the services or business of any employee,\ndistributor, vendor, representative or customer of the Company to discontinue\nthat person's or entity's relationship with or to the Company.\n\n8. Arbitration. Any claim, dispute or controversy arising out of this Agreement,\n   -----------\nthe interpretation, validity or enforceability of this Agreement or the alleged\nbreach thereof shall be submitted by the parties to binding arbitration by the\nAmerican Arbitration Association. The site of the arbitration proceeding shall\nbe in Los Angeles County, California, or another location mutually agreed to by\nthe parties.\n\n9. Conflict in Benefits; Noncumulation of Benefits.\n   -----------------------------------------------\n\n     9.1 Effect of Agreement. This Agreement shall supersede all prior\n         -------------------\narrangements, whether written or oral, and understandings regarding the subject\nmatter of this Agreement and shall be the exclusive agreement for the\ndetermination of any payments and accelerated stock award vesting due upon\nExecutive's termination of employment, except as provided in Section 9.2.\n\n     9.2 Noncumulation of Benefits. Executive may not cumulate cash severance\n         -------------------------\npayments or acceleration of stock award vesting under this Agreement and another\nagreement. If\n\n                                      -6-\n\n\n\nExecutive has any other binding written agreement with the Company which\nprovides that upon a Change of Control or termination of employment Executive\nshall receive one or more of the benefits described in Sections 2, 3 or 4 of\nthis Agreement, then with respect to each such benefit the amount payable under\nthis Agreement shall be reduced by the corresponding amount paid or payable\nunder such other agreements.\n\n10. Miscellaneous.\n    -------------\n\n     10.1 Successors of the Company. The Company will require any successor or\n          -------------------------\nassign (whether direct or indirect, by purchase, merger, consolidation or\notherwise) to all or substantially all of the business and\/or assets of the\nCompany, expressly, absolutely and unconditionally to assume and agree to\nperform this Agreement in the same manner and to the same extent that the\nCompany would be required to perform it if no such succession or assignment had\ntaken place.\n\n     10.2 Modification of Agreement.This Agreement may be modified, amended or\n          -------------------------\nsuperceded only by a written agreement signed by Executive and the Chief\nExecutive Officer or an authorized member of the Board of Directors of the\nCompany.\n\n     10.3 Governing Law. This Agreement shall be interpreted in accordance with\n          -------------\nand governed by the laws of the State of California.\n\n     10.4 No Employment Agreement. This Agreement does not alter Executive's\n          -----------------------\nat-will employment status or obligate the Company to continue to employ\nExecutive for any specific period of time, or in any specific role or geographic\nlocation.\n\nEXECUTIVE                                         HOMESTORE.COM, INC.\n\n\n----------------------------                      By:\nWalter Lowry                                          --------------------------\n                                                      Name:\n                                                      Title:\n\n                                      -7-\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7788],"corporate_contracts_industries":[9486],"corporate_contracts_types":[9539,9551],"class_list":["post-39911","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-homestorecom-inc","corporate_contracts_industries-real__agents","corporate_contracts_types-compensation","corporate_contracts_types-compensation__severance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39911","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39911"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39911"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39911"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39911"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}