Amendment to the Executive Retention and Severance Agreement with Lorna Borenstein
Exhibit 10.34
MOVE,
INC.
Amendment to the Executive Retention and Severance
Agreement
with Xxxxx Xxxxxxxxxx
with Xxxxx Xxxxxxxxxx
This Amendment to the Employment Agreement dated as of
May 29, 2007, (the “Agreement”) between Move,
Inc. (the “Company”) and Xxxxx Xxxxxxxxxx
(“Executive”) is made this 19th day of December,
2008.
The Company and Executive have determined that it is in their
best interests to amend the Agreement to include special
provisions intended to ensure compliance with Internal Revenue
Code Section 409A relating to deferred compensation. In
consideration of the mutual covenants contained herein and the
continued employment of Executive by the Company, the parties
agree as follows:
1. Section 4.4 of the Agreement is deleted in its
entirety and replaced with the following:
“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 thirty
(30) days after notice by Executive specifying the
condition (which notice must be given no later than 90 days
after the initial occurrence of such event):: (a) a
material reduction by the Company of Executive’s duties,
responsibilities, authority or reporting relationship;
(b) a material reduction in Executive’s base salary or
the percentage of his or her base salary on which his or her
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 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, her home office,
or the office space the Company intends to lease in
San Francisco Bay Area; or (e) a material breach by
the Company of the terms of this Agreement or the Letter from W.
Xxxxxxx Xxxx dated April 26, 2007 to Executive (the
“Letter”).”
2. Section 4.7(b) of the Agreement is amended by
deleting the words “ninety (90)” and replacing them
with the words “one hundred and eighty (180)”.
3. Section 4.8(b) of the Agreement is amended by
deleting the words “ninety (90)” and replacing them
with the words “one hundred and eighty (180)”.
4. The first sentence of Section 5.3 of the Agreement
is deleted and replaced with the following:
“In the event that the Company or the Executive gives
notice to the other party of its intention to terminate
Executive’s employment with the Company under circumstances
that would constitute a Termination Upon a Change of Control or
Termination in Absence of a Change of Control (the
“Termination Notice”), the Company shall have the
right, exercisable by notice to Executive given at any time
prior to ten (10) days after its receipt or delivery of the
Termination Notice, to request that Executive remain employed by
the Company for such period as the Company may elect, but in no
event longer than ninety (90) days following its receipt or
delivery of the Termination Notice.”
5. The last sentence of Section 9.1 is deleted and
replaced with the following:
“Amounts due shall be paid within 10 days after demand
by Executive, and no later than December 31 of the year
following the year in which the related taxes are remitted to
the applicable taxing authorities.”
6. Section 9.8 of the Agreement is deleted in its
entirety and replaced with the following:
“9.8. Code Section 409A.
(a) This Agreement shall be interpreted and administered in
a manner so that any amount or benefit payable hereunder shall
be paid or provided in a manner that is either exempt from or
compliant with the requirements Section 409A of the Code
and applicable Internal Revenue Service guidance and Treasury
Regulations issued thereunder (and any applicable transition
relief under Section 409A of the Code).
(b) Notwithstanding anything in this Agreement to the
contrary, to the extent that any amount or benefit that would
constitute non-exempt “deferred compensation” for
purposes of Section 409A of the Code would otherwise be
payable or distributable hereunder, or a different form of
payment would be effected, by reason of your termination of
employment, such amount or benefit will not be payable or
distributable to you,
and/or such
different form of payment will not be effected, by reason of
such circumstance unless the circumstances giving rise to your
termination of employment meet the description or definition of
“separation from service” in Section 409A of the
Code and applicable regulations, or (ii) the payment or
distribution of such amount or benefit would be exempt from the
application of Section 409A of the Code by reason of the
short-term deferral exemption or otherwise. This provision does
not prohibit the vesting of any amount upon a termination
of employment, however defined. If this provision prevents the
payment or distribution of any amount or benefit, such payment
or distribution shall be made on the date, if any, on which an
event occurs that constitutes a
Section 409A-compliant
“separation from service” occurs, or such later date
as may be required by subsection (c) below.
(c) Notwithstanding anything in this Agreement to the
contrary, if any amount or benefit that would constitute
non-exempt “deferred compensation” for purposes of
Section 409A of the Code would otherwise be payable or
distributable under this Agreement by reason of your separation
from service during a period in which you are a Specified
Employee (as defined below), then, subject to any permissible
acceleration of payment by Homestore under Treas. Reg. Section
1.409A-3(j)(4)(ii) (domestic relations order), (j)(4)(iii)
(conflicts of interest), or (j)(4)(vi) (payment of employment
taxes):
(i) if the payment or distribution is payable in a lump
sum, your right to receive payment or distribution of such
non-exempt deferred compensation will be delayed until the
earlier of your death or the first day of the seventh month
following your separation from service; and
(ii) if the payment or distribution is payable over time,
the amount of such non-exempt deferred compensation that would
otherwise be payable during the six-month period immediately
following your separation from service will be accumulated and
your right to receive payment or distribution of such
accumulated amount will be delayed until the earlier of your
death or the first day of the seventh month following your
separation from service, whereupon the accumulated amount will
be paid or distributed to you on such date and the normal
payment or distribution schedule for any remaining payments or
distributions will resume.
For purposes of this Agreement, the term “Specified
Employee” has the meaning given such term in Code
Section 409A and the final regulations thereunder.”
Except as expressly amended hereby, the terms of the Agreement
shall be and remain unchanged and the Agreement as amended
hereby shall remain in full force and effect.
IN WITNESS WHEREOF, the Company and Executive have caused this
Amendment to be executed on the day and year first above written.
MOVE, INC.
| By: |
/s/ W.
Xxxxxxx Xxxx
|
EXECUTIVE
/s/ Xxxxx
Xxxxxxxxxx
Xxxxx Xxxxxxxxxx
