Exhibit 6.01(a)
[HOMESTORE LETTERHEAD]
March 6, 2002
W. Xxxxxxx Xxxx
0 Xxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Employment Agreement
Dear Xxxx:
On behalf of the Board of Directors of xxxxxxxxx.xxx, Inc. ("Homestore"), I am
pleased to offer you the position of Chief Executive Officer of Homestore on the
terms set forth below.
1. Position. You will be employed by Homestore as its Chief Executive Officer
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effective January 7, 2002 (the "Commencement Date") and continuing
thereafter until termination of your employment. You will have
responsibility for overall management of Homestore and will report directly
to the Board of Directors of Homestore (the "Board"). During your term of
employment, you will also be appointed to the Board. During the term of
your employment, you will be expected to be a full time employee of
Homestore, and you will not engage or participate in any business that is
competitive with the business of Homestore. You will also be expected to
comply with and be bound by Homestore's operating policies, procedures and
practices adopted by Homestore and in effect from time to time during the
term of your employment.
2. Salary. Your initial annual base salary retroactive to the Commencement
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Date will be $500,000. Your annual base salary will be payable in
accordance with Homestore's normal payroll practices with such payroll
deductions and withholdings as are required by law. Your base salary will
be reviewed on an annual basis by the Compensation Committee of the Board
and may be increased (but not decreased) from time to time, in the
discretion of the Compensation Committee of the Board.
3. Bonus. You will receive a sign-on bonus of $500,000, earned as of the
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Commencement Date, to be paid as follows: (a) 25% of the sign-on bonus will
be paid on April 30, 2002, (b) 25% of the sign-on bonus will be paid on
July 31, 2002, (c) 25% of the sign-on bonus will be paid on October 31,
2002, and (d) 25% of the sign-on bonus will be paid on January 31, 2003. In
addition, for 2002, you will be eligible to receive a performance bonus of
up to $500,000 upon satisfaction of performance objectives agreed to by you
and the Compensation Committee of the Board following your Commencement
Date. For 2003, you will be eligible to receive a performance bonus of up
to twice your current annual base salary upon satisfaction of performance
objectives agreed to by you and the Compensation Committee of the Board.
Any performance bonuses payable hereunder
may be payable, at the discretion of Homestore and with your prior consent,
using Homestore common stock having a fair market value equal to the amount
of the bonus, provided that such shares are registered on a Form S-8
registration statement and eligible for immediate resale under the federal
securities laws and Homestore's applicable xxxxxxx xxxxxxx policy.
4. Other Benefits:
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(a) Homestore has made available, and will continue to make available
during your employment, to you and your management team, at
Homestore's expense for up to two years, the equivalent of two
single-family residences selected by you and within reasonable
commuting distance of Homestore's offices with costs not to exceed in
the aggregate a monthly cost of $15,000.
(b) Homestore will make a rental automobile available to you, at
Homestore's expense, during the employment term.
(c) You will be eligible for four (4) weeks of vacation annually.
(d) You will be eligible for the normal health insurance, 401(k), employee
stock purchase plan and other benefits offered to Homestore senior
executives.
(e) Homestore will reimburse the actual and reasonable fixed operating
costs of your Falcon 20 Jet, including all routine or required
maintenance or mechanical replacement of parts or equipment, and the
Homestore business related (including reimbursement of operating costs
between your principal office in Austin, Texas, and Homestore's
Westlake Village, California offices) actual and reasonable variable
operating costs of your Falcon 20 Jet, estimated to currently be
approximately $1,165 per hour.
If all or any portion of the amounts payable to you or on your behalf
under this Section 4 become or otherwise are subject to federal or state
income taxes, Homestore shall pay to you an amount necessary to place you
in the same after-tax position as you would have been in had no such taxes
been imposed. The determination of the amount of any such tax indemnity
shall be made by the independent accounting firm employed by Homestore,
which amount shall be increased or decreased to reflect the results of any
final determination by taxing authorities in any administrative or judicial
action, and shall include any expenses reasonably incurred by you in
defending same. The amount payable pursuant to this paragraph shall be
increased to the extent necessary to pay any interest and penalties
determined to be due, and shall be grossed up for the income tax due on the
aggregate reimbursement. Amounts due shall be paid within 10 days after
demand by you.
5. Stock Options. The Compensation Committee of the Board has granted to you
on January 24, 2002 (the "Date of Grant") a non-qualified stock option to
purchase 1,300,000 shares of Homestore common stock (the "Sign-On Option")
and a non-qualified stock option to purchase 3,900,000 shares of Homestore
common stock (the
"Principal Option") (collectively, the "Options") at an exercise price
equal to $1.76 per share.
(a) The Sign-On Option is 100% vested and exercisable on the Date of
Grant. The Principal Option will vest and become exercisable as to
1/48 of the total Principal Option shares on the first day of each
calendar month following the Date of Grant, i.e., beginning February
1, 2002.
(b) Except as otherwise indicated in this agreement, the vested portion of
the Options may be exercised at any time until the earlier of (i)(A)
ninety (90) days after your Termination for Cause, (B) one (1) year
after your Voluntary Termination prior to a Change in Control or (C)
three (3) years after your termination for any other reason (including
Voluntary Termination after a Change of Control, Involuntary
Termination, Termination Without Cause or Termination for Death or
Disability) or (ii) ten years after the Date of Grant of such Options.
The unvested portion of the Principal Option may be exercised early
provided you enter into a repurchase agreement with repurchase
provisions similar to your vesting schedule.
(c) Notwithstanding any other provision of this letter agreement or any
option agreement or plan to the contrary, (i) the entire unvested
portion of your Principal Option will accelerate and become fully
vested and immediately exercisable in the event of your Involuntary
Termination or Termination without Cause and (ii) that amount of the
unvested options equal to 12/48 of the entire Principal Option will
accelerate and become vested and immediately exercisable in the event
of your Termination for Death or Disability within one year of the
Effective Date and the entire unvested portion of your Principal
Option will accelerate and become fully vested and immediately
exercisable in the event of your Termination for Death or Disability
(each as defined below) on or after one year from the Effective Date.
(d) Homestore will register the shares issuable under the Option on a Form
S-8 registration statement as soon as reasonably possible and will use
its reasonable best efforts to keep such registration statement in
effect for the entire exercise period of the Option.
(e) The Options shall be transferable, upon notice to Homestore, to your
spouse, ancestors, lineal descendants, and the spouses of those
persons and trusts and entities for the benefit of or owned by any of
them, or transferable by gift to any person as permitted by the
Securities Act of 1933, as amended, under a Form S-8 registration
statement.
6. Employment and Termination. Your employment with Homestore will be at-will
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and may be terminated by you or by Homestore at any time for any reason as
follows:
(a) You may terminate your employment upon written notice to the Board at
any time following an event constituting "Good Reason" (as defined
below), if following such event, the event constituting Good Reason is
not cured by Homestore within
10 days after your notice to the Board requesting that such event be
cured (an "Involuntary Termination");
(b) You may terminate your employment upon written notice to the Board at
any time in your discretion without Good Reason ("Voluntary
Termination");
(c) Homestore may terminate your employment upon written notice to you at
any time following a determination by the Board that there is "Cause"
(as defined below) for such termination ("Termination for Cause");
(d) Homestore may terminate your employment upon written notice to you at
any time in the sole discretion of the Board without a determination
that there is Cause for such termination ("Termination without
Cause");
(e) Your employment will automatically terminate upon your death or upon
your disability as determined by the Board ("Termination for Death or
Disability"); provided that "disability" will mean your complete
inability to perform your job responsibilities for a period of 120
consecutive days or 120 days in the aggregate in any 12-month period.
7. Definitions. As used in this agreement, the following terms have the
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following meanings:
(a) "Good Reason" means the occurrence of any of the following conditions,
without your written consent: (i) your no longer serving as chief
executive officer of Homestore or its ultimate parent corporation and
reporting only to the board of directors of Homestore or such ultimate
parent, as the case may be; (ii) any material breach of this letter
agreement by Homestore, including any reduction in your cash
compensation or reimbursements; or (iii) Homestore's requiring you to
be based at any office or location more than 50 miles from Austin,
Texas or Homestore's current headquarters in Westlake Village,
California.
(b) "Cause" means:
(i) your willful and continued failure to perform substantially your
duties with Homestore (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), after a written demand for substantial
performance is delivered to you by the Board of Homestore which
specifically identifies the manner in which the Board believes
that you have not substantially performed your duties, or
(ii) the willful engaging by you in illegal conduct or gross
misconduct which is materially and demonstrably injurious to
Homestore.
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 Homestore.
Any act, or failure to act, based upon authority given pursuant to a
resolution duly adopted by the Board or based upon the advice of counsel
for Homestore shall be conclusively presumed to be done, or omitted to be
done, by you in good faith and in the best interests of Homestore. The
cessation of employment of you shall not be deemed to be for Cause unless
and until there shall have been delivered to you a copy of a resolution
duly adopted by the affirmative vote of (i) all but one of the
disinterested directors if the Board consists of five or fewer directors,
(ii) all but two of the disinterested directors if the Board consists of at
least six and less than nine directors, (iii) all but three of the
disinterested directors if the Board consists of at least nine and less
than twelve directors, and (iv) seventy-five percent (75%) of the
disinterested directors if the Board consists of twelve or more directors,
at a meeting of such Board called and held for such purpose (after
reasonable notice is provided to you and you are given an opportunity,
together with counsel, to be heard before such Board), finding that, in the
good faith opinion of such Board, you are guilty of the conduct described
in subparagraphs (i) or (ii) above, and specifying the particulars thereof
in detail.
(c) "Change in Control" means (i) 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 Homestore under an employee benefit plan of
Homestore, becomes the "beneficial owner" (as defined in Rule 13d-3
promulgated under the Exchange Act), directly or indirectly, of
securities of Homestore representing 50% or more of (A) the
outstanding shares of common stock of Homestore or (B) the combined
voting power of Homestore's then-outstanding securities; (ii)
Homestore is party to a merger or consolidation, or series of related
transactions, which results in the voting securities of Homestore
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) more than fifty (50%)
percent of the combined voting power of the voting securities of
Homestore or such surviving or other entity outstanding immediately
after such merger or consolidation; (iii) the sale or disposition of
all or substantially all of Homestore's assets (or consummation of any
transaction, or series of related transactions, having similar
effect); (iv) the dissolution or liquidation of Homestore; or (v) any
transaction or series of related transactions that has the substantial
effect of any one or more of the foregoing.
8. Separation Benefits. Upon termination of your employment with Homestore for
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any reason, you will receive payment for all unpaid salary and vacation
accrued to the date of your termination of employment; any remaining unpaid
balance of your sign-on bonus; any performance bonus that has been earned
but not paid; and your benefits will be continued under Homestore's then
existing benefit plans and policies for so long as provided under the terms
of such plans and policies or as required by applicable law. In addition,
the following provisions will apply depending on the basis of your
termination of employment:
(a) In the event of your Voluntary Termination or Termination for Cause,
you will not be entitled to any cash severance benefits (except the
amounts as set forth above) or additional vesting of your Principal
Option.
(b) In the event of your Involuntary Termination, Termination for Death or
Disability, or Termination without Cause, subject to your execution
(or the execution by your executor or personal representative in the
case of your death) of the acknowledgement and release attached as
Exhibit A, you will be entitled to a severance payment equal to the
sum of (i) 12 months of your then current annual base salary and (ii)
100% of the target bonus that would otherwise be payable to you for
the fiscal year in which your termination occurs (whether or not you
have satisfied the applicable performance objectives) (the "Cash
Severance"). The Cash Severance will be payable in equal installments
over 12 months in accordance with Homestore's normal payroll practices
with such payroll deductions and withholdings as are required by law.
(c) Regardless of the basis of your termination and regardless of whether
you agree to execute the acknowledgement and release, if all or any
portion of the amounts payable to you or on your behalf under this
agreement or otherwise from Homestore become or otherwise are subject
to the excise tax imposed by Section 4999 of the Internal Revenue Code
of 1986, as amended, or similar state tax and/or assessment, Homestore
shall pay to you an amount necessary to place you in the same
after-tax position as you would have been in had no such excise tax
been imposed. The amount payable pursuant to the preceding sentence
shall be increased to the extent necessary to pay income and excise
taxes due on such amount. The determination of the amount of any such
tax indemnity shall be made by the independent accounting firm
employed by Homestore, which amount shall be increased or decreased to
reflect the results of any final determination by taxing authorities
in any administrative or judicial action and shall include any
expenses reasonably incurred by you in defending same. The amount
payable pursuant to this paragraph shall be sufficient to pay any
interest and penalties determined to be due, and shall be grossed up
for the income tax due on the aggregate reimbursement. Amounts due
shall be paid within 10 days after demand by you.
(d) No payments due you under this letter agreement will be subject to
mitigation or offset.
9. Indemnification Agreement. Upon your commencement of employment with
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Homestore, Homestore will enter into its standard form of indemnification
agreement for officers and directors (attached hereto as Exhibit B) to
indemnify you against certain liabilities you may incur as an officer or
director of Homestore. In addition, attached as Exhibit B-1 are resolutions
duly adopted by the Board providing additional indemnification as set forth
therein (the "Indemnification Resolutions"). Such resolutions are in full
force and effect, and except as otherwise required by law, shall not be
amended or repealed or modified without the express written consent of the
Executive (which shall not include any vote or failure to vote by the
Executive as a member of the board or as a shareholder), and shall
constitute the legally enforceable and binding obligation of Homestore and
its successors and assigns as if the same were set forth herein as
contractual obligations of Homestore. As soon as reasonably possible after
the date hereof, but in any event within 30 days from execution of this
letter agreement, Homestore shall use its commercially reasonable best
efforts to obtain an additional policy of directors and officers liability
insurance providing customary coverage for acts and omissions with respect
to your service as a director, officer, employee, agent or representative
of Homestore with limits of liability of no less than $50,000,000
(unreduced by defense costs) or such lesser amount as is available as
determined by the Board and as agreed to by you, and at all times
thereafter, Homestore shall use its best efforts to maintain in force such
coverage or similar coverage; provided that if the cost of such coverage
exceeds 21/2times the premium for the coverage previously obtained pursuant
to this sentence, Homestore shall not be required to spend more than
21/2times such previous premium amount to continue such coverage.
10. Confidential Information and Invention Assignment Agreement. Upon your
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commencement of employment with Homestore, you will be required to sign a
confidentiality agreement to protect Homestore's confidential information
and intellectual property.
11. Non-Solicitation. During the term of your employment with Homestore and for
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one year thereafter, you will not, on behalf of yourself or any third
party, solicit or induce any employee of Homestore (other than Xxxx
Xxxxxxxx and Xxx Xxxxxx) to terminate his or her employment with Homestore.
12. Arbitration. The parties agree that any dispute regarding the
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interpretation or enforcement of this agreement will be decided by
confidential, final and binding arbitration conducted by Judicial
Arbitration and Mediation Services ("JAMS") under the then existing JAMS
rules rather than by litigation in court, trial by jury, administrative
proceeding or in any other forum. The filing fees and arbitrator's fees and
costs in such arbitration will be borne by Homestore. The parties will be
entitled to reasonable discovery of essential matters as determined by the
arbitrator. In the arbitration, the parties will be entitled to all
remedies that would have been available if the matter were litigated in a
court of law.
13. Miscellaneous.
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(a) Absence of Conflicts. You represent that upon the Commencement Date
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your performance of your duties under this agreement will not breach
any other agreement as to which you are a party.
(b) Attorneys Fees. If a legal action or other proceeding is brought for
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enforcement of this agreement, the prevailing party will be entitled
to recover reasonable attorneys' fees and costs incurred, both before
and after judgment, in addition to any other relief to which they may
be entitled.
(c) Successors. This agreement is binding on and may be enforced by
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Homestore and its successors and assigns and is binding on and may be
enforced by you and your
heirs and legal representatives. Any successor to Homestore or
substantially all of its business (whether by purchase, merger,
consolidation or otherwise) will in advance assume in writing and be
bound by all of Homestore's obligations under this agreement.
(d) Notices. Notices under this agreement must be in writing and will be
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deemed to have been given when personally delivered or three days
after mailed by U.S. registered or certified mail, return receipt
requested and postage prepaid. Mailed notices to you will be addressed
to you at the home address that you have most recently communicated to
Homestore in writing. Notices to Homestore will be addressed to its
General Counsel at Homestore's corporate headquarters.
(e) Waiver. No provision of this agreement will be modified or waived
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except in writing signed by you and an officer of Homestore duly
authorized by the Board. No waiver by either party of any breach of
this agreement by the other party will be considered a waiver of any
other breach of this agreement.
(f) Entire Agreement. This agreement represents the entire agreement
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between us concerning the subject matter of your employment by
Homestore.
(g) Governing Law. This agreement will be governed by the laws of the
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State of California without reference to conflict of laws provisions.
We are very pleased to extend this offer of employment to you and look
forward to your joining Homestore. Please indicate your acceptance of the terms
of this agreement by signing in the place indicated below.
Very truly yours,
March , 2002
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Xxx Xxxxxxx
Chairman of the Board
xxxxxxxxx.xxx, Inc.
Accepted:
March , 2002
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W. Xxxxxxx Xxxx
EXHIBIT A
ACKNOWLEDGEMENT AND RELEASE OF CLAIMS
THIS ACKNOWLEDGEMENT AND RELEASE OF CLAIMS ("Release") is between W. Xxxxxxx
Xxxx ("Employee") and xxxxxxxxx.xxx, Inc. ("Homestore"), a Delaware corporation.
1. Payment of Separation Benefits.
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I understand that my employment with Homestore has terminated. Homestore
has agreed that if I choose to sign this Release on or after my last day of
employment, Homestore will pay me severance pursuant to Section 8(b) of my
Employment Agreement (the "Employment Agreement") with Homestore dated March 6,
2002 (the "Severance Benefits"). I understand that I am not entitled to these
Severance Benefits unless I sign this Release. I understand that in addition to
the Severance Benefits and regardless of whether I sign this Release, Homestore
will pay me all of my accrued salary and vacation earned through my date of
termination and any remaining unpaid balance of my sign-on bonus, as well as all
other amounts due to me now or in the future under my Employment Agreement or
under any other arrangement or agreement with Homestore and Employee may
exercise any option pursuant to the terms of the Employment Agreement.
2. Acknowledgement.
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Employee and Homestore acknowledge that Employee's termination as an
employee of Homestore was (i) as a result of an Involuntary Termination,
Termination for Death or Disability or Termination without Cause (each as
defined in the Employment Agreement), and for no other reason and under no other
circumstances, (ii) permitted under the Employment Agreement and (iii) not
illegal, wrongful or prohibited under any applicable statute or common law
(collectively, the "Acknowledged Basis of Termination").
3. Release.
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Employee and Homestore and their respective heirs, executors, successors
and assigns, hereby fully and forever release each other and their respective
heirs, executors, successors, agents, officers and directors from and agree not
to xxx concerning, any and all claims, actions, obligations, duties, causes of
action that they may possess based upon or arising out of the following:
(i) any contention that Employee's termination was as a result of anything
or any cause or any basis other than the Acknowledged Basis of
Termination;
(ii) any and all claims relating to or arising from Employee's termination
of his employment with Homestore and any and all claims relating to,
or arising from, Employee's right to purchase, or actual purchase of,
shares of stock of Homestore;
(iii) any and all claims for wrongful discharge of employment; termination
in violation of public policy or discrimination;
(iv) any and all claims that such termination was in violation of any
federal, state or municipal statute, including, but not limited to,
Title VII of the Civil Rights Act of 1964, the Civil rights Act of
1991, the Age Discrimination in Employment Act of 1967, the Americans
with Disabilities Act of 1990, the Fair Labor Standards Act, the
Worker Adjustment and Retraining Notification Act, Older Workers
Benefit Protection Act and the California Fair Employment and Housing
Act;
(v) any and all claims that such termination violated the federal, or any
state, constitution;
(vi) any and all claims that such termination violated any other laws and
regulations relating to employment or employment discrimination; and
(vii) any and all claims that such termination has entitled Employee to
attorneys' fees and costs, except to the extent set forth in the
Employment Agreement.
This Release does not extend to, and does not result in, a waiver or release of
any of the following: (a) any claim by Employee for workers' compensation or
unemployment benefits; (b) Employee's rights to indemnity under the Indemnity
Agreement signed by the parties, as well as under Labor Code section 2802; (c)
Employee's right to exercise his stock options under any and all stock option
grants made to him by Homestore pursuant to Section 5 of the Employment
Agreement; (d) all rights and benefits to which Employee is entitled under the
Employment Agreement, the Indemnity Agreement, the Indemnification Resolutions,
and any employee or welfare benefit plan of Homestore or any other agreement,
whether oral or written, between the Employee and Homestore; and (e) any other
rights and benefits not expressly released hereunder.
Employee and Homestore acknowledge that they have been advised by legal counsel
and are familiar with Section 1542 of the Civil Code of the State of California,
which states:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS SET FORTH IN (i) THROUGH
(vii) ABOVE WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN
HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Employee expressly waives any right or benefit that he has or may have under
Section 1542 of the California Civil Code or any similar provision of the
statutory or non-statutory law of any other jurisdiction, including Delaware.
4. Acknowledgment of Waiver of Claims under ADEA.
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Employee acknowledges that Employee is waiving and releasing any rights
Employee may have under the Age Discrimination in Employment Act of 1967
("ADEA") and that this waiver and release is knowing and voluntary. Employee and
Homestore agree that this waiver and release does not apply to any rights or
claims that may arise under ADEA after the Effective Date (defined below) of
this Release; Employee acknowledges that the consideration given for this
Release in addition to anything of value to which Employee was already entitled.
Employee further acknowledges that Employee has been advised by this writing
that:
(a) Employee should consult with an attorney prior to executing this Release;
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(b) Employee has at least twenty-one (21) days within which to consider this
Release, although Employee may accept the terms of this Release at any time
within those 21 days;
(c) Employee has at least seven (7) days following the execution of this
Release by the parties to revoke this Release; and
(d) This Release will not be effective until the revocation period has expired
(the "Effective Date").
5. Indemnity and Employee Invention Agreement.
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Employee and Homestore agree that all rights and obligations of the parties
under the Indemnity Agreement between the parties (including the Indemnification
Resolutions) and under the Confidentiality Agreement will continue in effect.
6. Voluntary Execution of Agreement.
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This Release is executed voluntarily and without any duress or undue
influence on the part or behalf of the parties hereto, with the full intent of
releasing all claims. The parties acknowledge that:
(a) they have read this Release;
(b) they have been represented in the preparation, negotiation, and execution
of this Release by legal counsel of their own choice or that they have
voluntarily declined to seek such counsel;
(c) they understand the terms and consequences of this Release and of the
releases it contains;
(d) they are fully aware of the legal and binding effect of this Release.
EMPLOYEE HAS CONSULTED WITH AN ATTORNEY BEFORE SIGNING THIS RELEASE AND
UNDERSTANDS THAT, BY SIGNING THIS RELEASE, EMPLOYEE IS GIVING UP THOSE LEGAL
CLAIMS EMPLOYEE HAS AGAINST HOMESTORE AS EXPRESSLY SET FORTH HEREIN (AND NO
OTHERS). EMPLOYEE FURTHER ACKNOWLEDGES THAT EMPLOYEE DOES SO KNOWINGLY,
WILLINGLY AND VOLUNTARILY IN EXCHANGE FOR THE BENEFITS DESCRIBED IN THE
EMPLOYMENT AGREEMENT.
Employee: xxxxxxxxx.xxx, Inc.
W. Xxxxxxx Xxxx
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By:
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Title:
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Signature
Date: Date:
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EXHIBIT B
INDEMNITY AGREEMENT
This INDEMNITY AGREEMENT (the "Agreement") is dated as of March 6, 2002 and is
made by and between Xxxxxxxxx.xxx, Inc., a Delaware corporation (the "Company"),
and W. Xxxxxxx Xxxx, a director and/or officer of the Company (the
"Indemnitee").
RECITALS
A. The Company is aware that competent and experienced persons are increasingly
reluctant to serve as directors or officers of corporations unless they are
protected by comprehensive liability insurance and/or indemnification, due to
increased exposure to litigation costs and risks resulting from their service to
such corporations, and due to the fact that the exposure frequently bears no
reasonable relationship to the compensation of such directors and officers;
B. Based on their experience as business managers, the Board of Directors of the
Company (the "Board") has concluded that, to retain and attract talented and
experienced individuals to serve as officers and directors of the Company, and
to encourage such individuals to take the business risks necessary for the
success of the Company, it is necessary for the Company contractually to
indemnify officers and directors and to assume for itself maximum liability for
expenses and damages in connection with claims against such officers and
directors in connection with their service to the Company;
C. Section 145 of the General Corporation Law of Delaware, under which the
Company is organized (the "Law"), empowers the Company to indemnify by agreement
its officers, directors, employees and agents, and persons who serve, at the
request of the Company, as directors, officers, employees or agents of other
corporations or enterprises, and expressly provides that the indemnification
provided by the Law is not exclusive; and
D. The Company desires and has requested the Indemnitee to serve or continue to
serve as a director or officer of the Company. As an inducement to serve and in
consideration for such service, the Company has agreed to indemnify the
Indemnitee for claims for damages arising out of or related to the performance
of such services to the Company in accordance with the terms and conditions set
forth in this Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree
as follows:
1. Definitions.
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1.1 Agent. For the purposes of this Agreement, "agent" of the Company means
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any person who is or at any time was a director or officer of the Company or a
subsidiary of the Company; or is or at any time was serving at the request of,
for the convenience of, or to represent the interest of the Company or a
subsidiary of the Company as a director or officer of another foreign or
domestic corporation, partnership, joint venture, trust or other enterprise or
an affiliate of the Company; or was a director or officer of a foreign or
domestic corporation which was a predecessor corporation of the Company,
including, without limitation, NetSelect, Inc., a Delaware corporation, or was a
director or officer of another enterprise or affiliate of the
Company at the request of, for the convenience of, or to represent the interests
of such predecessor corporation. The term "enterprise" includes any employee
benefit plan of the Company, its subsidiaries, affiliates and predecessor
corporations.
1.2 Expenses. For purposes of this Agreement, "expenses" includes all
--------
direct and indirect costs of any type or nature whatsoever (including, without
limitation, all attorneys' fees and related disbursements and other
out-of-pocket costs) actually and reasonably incurred by the Indemnitee in
connection with the investigation, defense or appeal of a proceeding or
establishing or enforcing a right to indemnification or advancement of expenses
under this Agreement, Section 145 or otherwise.
1.3 Proceeding. For the purposes of this Agreement, "proceeding" means any
----------
threatened, pending or completed action, suit or other proceeding, whether
civil, criminal, administrative, investigative or any other type whatsoever.
1.4 Subsidiary. For purposes of this Agreement, "subsidiary" means any
----------
corporation of which more than fifty percent (50%) of the outstanding voting
securities is owned directly or indirectly by the Company, by the Company and
one or more of its subsidiaries or by one or more of the Company's subsidiaries.
2. Agreement to Serve. The Indemnitee agrees to serve and/or continue to serve
------------------
as an agent of the Company, at the will of the Company (or under separate
agreement, if such agreement exists), in the capacity the Indemnitee currently
serves as an agent of the Company, faithfully and to the best of his ability, so
long as he is duly appointed or elected and qualified in accordance with the
applicable provisions of the charter documents of the Company or any subsidiary
of the Company; provided, however, that the Indemnitee may at any time and for
any reason resign from such position (subject to any contractual obligation that
the Indemnitee may have assumed apart from this Agreement), and the Company or
any subsidiary shall have no obligation under this Agreement to continue the
Indemnitee in any such position. For the avoidance of doubt, the Company and
Indemnitee each acknowledge and agree that the resignation or other termination
of Indemnitee as an agent of the Company under this paragraph 2 shall not impair
any right that Indemnitee may otherwise have to be indemnified under the terms
of this Agreement.
3. Directors' and Officers' Insurance. The Company shall, to the extent that the
----------------------------------
Board determines it to be economically reasonable, maintain a policy of
directors' and officers' liability insurance ("D&O Insurance"), on such terms
and conditions as may be approved by the Board.
4. Mandatory Indemnification. Subject to Section 9 below, the Company shall
-------------------------
indemnify and hold the Indemnitee harmless to the fullest extent permitted by
the law. Without limiting the generality of the foregoing, the company shall
indemnify and hold harmless the Indemnitee:
4.1 Third Party Actions. If the Indemnitee is a person who was or is a
-------------------
party or is threatened to be made a party to any proceeding (other than an
action by or in the right of the Company) by reason of the fact that he is or at
any time was an agent of the Company, or by reason of anything done or not done
by him in any such capacity, against any and all expenses and liabilities of any
type whatsoever (including, but not limited to, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement) actually and
reasonably incurred by him in connection with the investigation, defense,
settlement or appeal of such proceeding if he acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, the best interests of
the Company and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful; and
4.2 Derivative Actions. If the Indemnitee is a person who was or is a party
------------------
or is threatened to be made a party to any proceeding by or in the right of the
Company to procure a judgment in its favor by reason of the fact that he is or
at any time was an agent of the Company, or by reason of anything done or not
done by him in any such capacity, against any amounts paid in settlement of any
such proceeding and all expenses actually and reasonably incurred by him in
connection with the investigation, defense, settlement or appeal of such
proceeding if he acted in good faith and in a manner he reasonably believed to
be in, or not opposed to, the best interests of the Company; except that no
indemnification under this subsection shall be made in respect of any claim,
issue or matter as to which such person shall have been finally adjudged, in a
judgment not subject to appeal, to be liable to the Company by a court of
competent jurisdiction due to willful misconduct of a culpable nature in the
performance of his duty to the Company, unless and only to the extent that the
Court of Chancery or the court in which such proceeding was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such amounts which the Court of Chancery or such other
court shall deem proper; and
4.3 Exception for Amounts Covered by Insurance. Notwithstanding the
------------------------------------------
foregoing, the Company shall not be obligated to indemnify the Indemnitee for
expenses or liabilities of any type whatsoever (including, but not limited to,
judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) to the extent such have been paid directly to the Indemnitee by D&O
Insurance.
5. Partial Indemnification and Contribution.
----------------------------------------
5.1 Partial Indemnification. If the Indemnitee is entitled under any
-----------------------
provision of this Agreement to indemnification by the Company for some or a
portion of any expenses or liabilities of any type whatsoever (including, but
not limited to, judgments, fines, ERISA excise taxes or penalties and amounts
paid in settlement) incurred by him in the investigation, defense, settlement or
appeal of a proceeding but is not entitled, however, to indemnification for all
of the total amount thereof, then the Company shall nevertheless indemnify the
Indemnitee for such total amount except as to the portion thereof to which the
Indemnitee is not entitled to indemnification.
5.2 Contribution. If the Indemnitee is not entitled to the indemnification
------------
provided in Section 4 for any reason other than the statutory limitations set
forth in the Law, then in respect of any threatened, pending or completed
proceeding in which the Company is jointly liable with the Indemnitee (or would
be if joined in such proceeding), the Company shall contribute to the amount of
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred and paid or payable by the
Indemnitee in such proportion as is appropriate to reflect (i) the relative
benefits received by the Company on the one hand and the
Indemnitee on the other hand from the transaction from which such proceeding
arose and (ii) the relative fault of the Company on the one hand and of the
Indemnitee on the other hand in connection with the events which resulted in
such expenses, judgments, fines or settlement amounts, as well as any other
relevant equitable considerations. The relative fault of the Company on the one
hand and of the Indemnitee on the other hand shall be determined by reference
to, among other things, the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent the circumstances resulting in
such expenses, judgments, fines or settlement amounts. The Company agrees that
it would not be just and equitable if contribution pursuant to this Section 5
were determined by pro rata allocation or any other method of allocation, which
does not take account of the foregoing equitable considerations.
6. Mandatory Advancement of Expenses.
---------------------------------
6.1 Advancement. Subject to Section 9 below, the Company shall advance all
-----------
expenses incurred by the Indemnitee in connection with the investigation,
defense, settlement or appeal of any proceeding to which the Indemnitee is a
party or is threatened to be made a party by reason of the fact that the
Indemnitee is or at any time was an agent of the Company or by reason of
anything done or not done by him in any such capacity. The Indemnitee hereby
undertakes to promptly repay such amounts advanced only if, and to the extent
that, it shall ultimately be determined that the Indemnitee is not entitled to
be indemnified by the Company under the provisions of this Agreement, the
Certificate of Incorporation or Bylaws of the Company, the Law or otherwise. The
advances to be made hereunder shall be paid by the Company to the Indemnitee
within thirty (30) days following delivery of a written request therefor by the
Indemnitee to the Company.
6.2 Exception. Notwithstanding the foregoing provisions of this Section 6,
---------
the Company shall not be obligated to advance any expenses to the Indemnitee
arising from a lawsuit filed directly by the Company against the Indemnitee if
an absolute majority of the members of the Board reasonably determines in good
faith, within thirty (30) days of the Indemnitee's request to be advanced
expenses, that the facts known to them at the time such determination is made
demonstrate clearly and convincingly that the Indemnitee acted in bad faith. If
such a determination is made, the Indemnitee may have such decision reviewed by
another forum, in the manner set forth in Sections 8.3, 8.4 and 8.5 hereof, with
all references therein to "indemnification" being deemed to refer to
"advancement of expenses," and the burden of proof shall be on the Company to
demonstrate clearly and convincingly that, based on the facts known at the time,
the Indemnitee acted in bad faith. The Company may not avail itself of this
Section 6.2 as to a given lawsuit if, at any time after the occurrence of the
activities or omissions that are the primary focus of the lawsuit, the Company
has undergone a change in control. For this purpose, a change in control shall
mean a given person or group of affiliated persons or groups increasing their
beneficial ownership interest in the Company by at least twenty (20) percentage
points without advance Board approval.
7. Notice and Other Indemnification Procedures.
-------------------------------------------
7.1 Promptly after receipt by the Indemnitee of notice of the commencement
of or the threat of commencement of any proceeding, the Indemnitee shall, if the
Indemnitee believes that
indemnification with respect thereto may be sought from the Company under this
Agreement, notify the Company of the commencement or threat of commencement
thereof.
7.2 If, at the time of the receipt of a notice of the commencement of a
proceeding pursuant to Section 7.1 hereof, the Company has D&O Insurance in
effect, the Company shall give prompt notice of the commencement of such
proceeding to the insurers in accordance with the procedures set forth in the
respective policies. The Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of the Indemnitee, all
amounts payable as a result of such proceeding in accordance with the terms of
such D&O Insurance policies.
7.3 In the event the Company shall be obligated to advance the expenses for
any proceeding against the Indemnitee, the Company, if appropriate, shall be
entitled to assume the defense of such proceeding, with counsel approved by the
Indemnitee (which approval shall not be unreasonably withheld), upon the
delivery to the Indemnitee of written notice of its election to do so. After
delivery of such notice, approval of such counsel by the Indemnitee and the
retention of such counsel by the Company, the Company will not be liable to the
Indemnitee under this Agreement for any fees of counsel subsequently incurred by
the Indemnitee with respect to the same proceeding, provided that: (a) the
Indemnitee shall have the right to employ his own counsel in any such proceeding
at the Indemnitee's expense; (b) the Indemnitee shall have the right to employ
his own counsel in connection with any such proceeding, at the expense of the
Company, if such counsel serves in a review, observer, advice and counseling
capacity and does not otherwise materially control or participate in the defense
of such proceeding; and (c) if (i) the employment of counsel by the Indemnitee
has been previously authorized by the Company, (ii) the Indemnitee shall have
reasonably concluded that there may be a conflict of interest between the
Company and the Indemnitee in the conduct of any such defense or (iii) the
Company shall not, in fact, have employed counsel to assume the defense of such
proceeding, then the fees and expenses of the Indemnitee's counsel shall be at
the expense of the Company.
8. Determination of Right to Indemnification.
-----------------------------------------
8.1 To the extent the Indemnitee has been successful on the merits or
otherwise in defense of any proceeding referred to in Section 4.1 or 4.2 of this
Agreement or in the defense of any claim, issue or matter described therein, the
Company shall indemnify the Indemnitee against expenses actually and reasonably
incurred by him in connection with the investigation, defense or appeal of such
proceeding, or such claim, issue or matter, as the case may be.
8.2 In the event that Section 8.1 is inapplicable, or does not apply to the
entire proceeding, the Company shall nonetheless indemnify the Indemnitee unless
the Company shall prove by clear and convincing evidence to a forum listed in
Section 8.3 below that the Indemnitee has not met the applicable standard of
conduct required to entitle the Indemnitee to such indemnification.
8.3 The Indemnitee shall be entitled to select the forum in which the
validity of the Company's claim under Section 8.2 hereof that the Indemnitee is
not entitled to indemnification will be heard from among the following:
(a) A quorum of the Board consisting of directors who are not parties
to the proceeding for which indemnification is being sought;
(b) The stockholders of the Company, provided however that the
Indemnitee can select a forum consisting of the stockholders of the Company only
with the approval of the Company;
(c) Legal counsel mutually agreed upon by the Indemnitee and the
Board, which counsel shall make such determination in a written opinion;
(d) A panel of three arbitrators, one of whom is selected by the
Company, another of whom is selected by the Indemnitee and the last of whom is
selected by the first two arbitrators so selected; or
(e) The Court of Chancery of Delaware or other court having
jurisdiction of subject matter and the parties.
8.4 As soon as practicable, and in no event later than thirty (30) days
after the forum has been selected pursuant to Section 8.3 above, the Company
shall, at its own expense, submit to the selected forum its claim that the
Indemnitee is not entitled to indemnification, and the Company shall act in the
utmost good faith to assure the Indemnitee a complete opportunity to defend
against such claim.
8.5 If the forum selected in accordance with Section 8.3 hereof is not a
court, then after the final decision of such forum is rendered, the Company or
the Indemnitee shall have the right to apply to the Court of Chancery of
Delaware, the court in which the proceeding giving rise to the Indemnitee's
claim for indemnification is or was pending or any other court having
jurisdiction of subject matter and the parties, for the purpose of appealing the
decision of such forum, provided that such right is executed within sixty (60)
days after the final decision of such forum is rendered. If the forum selected
in accordance with Section 8.3 hereof is a court, then the rights of the Company
or the Indemnitee to appeal any decision of such court shall be governed by the
applicable laws and rules governing appeals of the decision of such court.
8.6 Notwithstanding any other provision in this Agreement to the contrary,
the Company shall indemnify the Indemnitee against all expenses incurred by the
Indemnitee in connection with any hearing or proceeding under this Section 8
involving the Indemnitee and against all expenses incurred by the Indemnitee in
connection with any other proceeding between the Company and the Indemnitee
involving the interpretation or enforcement of the rights of the Indemnitee
under this Agreement unless a court of competent jurisdiction finds that each of
the material claims and/or defenses of the Indemnitee in any such proceeding was
frivolous or not made in good faith.
9. Exceptions. Any other provision herein to the contrary notwithstanding, the
----------
Company shall not be obligated pursuant to the terms of this Agreement:
9.1 Claims Initiated by Indemnitee. To indemnify or advance expenses to the
------------------------------
Indemnitee with respect to proceedings or claims initiated or brought
voluntarily by the Indemnitee and not by way of defense, except with respect to
proceedings specifically authorized by the Board or
brought to establish or enforce a right to indemnification and/or advancement of
expenses arising under this Agreement, the charter documents of the Company or
any subsidiary or any statute or law or otherwise, but such indemnification or
advancement of expenses may be provided by the Company in specific cases if the
Board finds it to be appropriate; or
9.2 Unauthorized Settlements. To indemnify the Indemnitee hereunder for any
------------------------
amounts paid in settlement of a proceeding unless the Company consents in
advance in writing to such settlement, which consent shall not be unreasonably
withheld; or
9.3 Securities Law Actions. To indemnify the Indemnitee on account of any
----------------------
suit in which judgment is rendered against the Indemnitee for an accounting of
profits made from the purchase or sale by the Indemnitee of securities of the
Company pursuant to the provisions of Section l6(b) of the Securities Exchange
Act of 1934 and amendments thereto or similar provisions of any federal, state
or local statutory law; or
9.4 Unlawful Indemnification. To indemnify the Indemnitee if a final
------------------------
decision by a court having jurisdiction in the matter, in a judgment not subject
to appeal, shall determine that such indemnification is not lawful. In this
respect, the Company and the Indemnitee have been advised that the Securities
and Exchange Commission takes the position that indemnification for liabilities
arising under the federal securities laws is against public policy and is,
therefore, unenforceable and that claims for indemnification should be submitted
to appropriate courts for adjudication.
10. Non-Exclusivity. The provisions for indemnification and advancement of
---------------
expenses set forth in this Agreement shall not be deemed exclusive of any other
rights which the Indemnitee may have under any provision of law, the Company's
Certificate of Incorporation or Bylaws, the vote of the Company's stockholders
or disinterested directors, other agreements or otherwise, both as to action in
the Indemnitee's official capacity and to action in another capacity while
occupying his position as an agent of the Company, and the Indemnitee's rights
hereunder shall continue after the Indemnitee has ceased acting as an agent of
the Company and shall inure to the benefit of the heirs, executors and
administrators of the Indemnitee.
11. General Provisions.
------------------
11.1 Interpretation of Agreement. It is understood that the parties hereto
---------------------------
intend this Agreement to be interpreted and enforced so as to provide
indemnification and advancement of expenses to the Indemnitee to the fullest
extent now or hereafter permitted by law, except as expressly limited herein.
11.2 Severability. If any provision or provisions of this Agreement shall
------------
be held to be invalid, illegal or unenforceable for any reason whatsoever, then:
(a) the validity, legality and enforceability of the remaining provisions of
this Agreement (including, without limitation, all portions of any paragraphs of
this Agreement containing any such provision held to be invalid, illegal or
unenforceable that are not themselves invalid, illegal or unenforceable) shall
not in any way be affected or impaired thereby; and (b) to the fullest extent
possible, the provisions of this Agreement (including, without limitation, all
portions of any paragraphs of this Agreement containing any such provision held
to be invalid, illegal or unenforceable, that are not themselves
invalid, illegal or unenforceable) shall be construed so as to give effect to
the intent manifested by the provision held invalid, illegal or unenforceable
and to give effect to Section 11.1 hereof.
11.3 Modification and Waiver. No supplement, modification or amendment of
-----------------------
this Agreement shall be binding unless executed in writing by both of the
parties hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provision hereof (whether or
not similar), nor shall such waiver constitute a continuing waiver.
11.4 Subrogation. In the event of full payment under this Agreement, the
-----------
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of the Indemnitee, who shall execute all documents required and
shall do all acts that may be necessary or desirable to secure such rights and
to enable the Company effectively to bring suit to enforce such rights.
11.5 Counterparts. This Agreement may be executed in one or more
------------
counter-parts, which shall together constitute one agreement.
11.6 Successors and Assigns. The terms of this Agreement shall bind, and
----------------------
shall inure to the benefit of, the successors and assigns of the parties hereto.
11.7 Notice. All notices, requests, demands and other communications under
------
this Agreement shall be in writing and shall be deemed duly given: (a) if
delivered by hand and signed for by the party addressee; or (b) if mailed by
certified or registered mail, with postage prepaid, on the third business day
after the mailing date. Addresses for notices to either party are as shown on
the signature page of this Agreement or as subsequently modified by written
notice.
11.8 Governing Law. This Agreement shall be governed exclusively by and
-------------
construed according to the laws of the State of Delaware, as applied to
contracts between Delaware residents entered into and to be performed entirely
within Delaware.
11.9 Consent to Jurisdiction. The Company and the Indemnitee each hereby
-----------------------
irrevocably consent to the jurisdiction of the courts of the State of California
for all purposes in connection with any action or proceeding, which arises out
of or relates to this Agreement.
11.10 Attorneys' Fees. In the event Indemnitee is required to bring any
---------------
action to enforce rights under this Agreement (including, without limitation,
the payment or reimbursement of expenses of any Proceeding described in Section
4), the Indemnitee shall be entitled to all reasonable fees and expenses in
bringing and pursuing such action, unless a court of competent jurisdiction
finds each of the material claims of the Indemnitee in any such action was
frivolous and not made in good faith.
IN WITNESS WHEREOF, the parties hereto have entered into this Indemnity
Agreement effective as of the date first written above.
XXXXXXXXX.XXX, INC.: INDEMNITEE:
------------------------------ -------------------
Xxxxxx X. Xxxxx W. Xxxxxxx Xxxx
Senior Vice President/General Counsel
Addresses for notice:
Xxxxxxxxx.xxx, Inc.
--------------------------
00000 Xxxxxxx Xxxxx Xxxx
------------------------
Xxxxxxxx Xxxxxxx, XX 00000
----------------------
Attn: Chief Executive Officer
With a copy to:
Xxxxxxxxx.xxx, Inc.
00000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attn: General Counsel
EXHIBIT B-1
INDEMNIFICATION RESOLUTIONS TO BE ADOPTED
-----------------------------------------
BY THE BOARD OF DIRECTORS OF HOMESTORE
--------------------------------------
RESOLVED, that the indemnification and reimbursement provided by the existing
indemnity agreements entered into between the Corporation and its directors and
officers is intended to, and shall, apply in circumstances where the "agent" (as
defined in the agreement) is or is threatened to be a witness or otherwise is or
is preparing to be a participant in a proceeding;
FURTHER RESOLVED, that the scope of indemnification under the indemnity
agreements is intended to be to the maximum extent permitted by applicable law,
and if the law regarding the standards under Delaware law for entitlement to
indemnification (currently believed to be that the person acted in good faith
and in a manner he reasonably believed to be in, or not opposed to, the best
interests of the Corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful) shall
permit broader contractual indemnification, the agreements shall be deemed
amended to incorporate such broader indemnification; and
FURTHER RESOLVED, that for purposes of the indemnity agreements and subsequent
review of a determination that an agent is not entitled to indemnity, the
termination of any proceeding by judgment, order, settlement (whether with or
without court approval) or conviction, or upon a plea of nolo contendere, or its
equivalent, shall not create a presumption that an indemnitee did not meet any
particular standard of conduct or have any particular belief or that a court has
determined that indemnification is not permitted by the indemnity agreement or
applicable law; and neither the failure of any forum selected pursuant to the
procedures described in the indemnity agreement to have made a determination as
to whether the indemnitee has met any particular standard of conduct or had any
particular belief, nor an actual determination by any such selected forum (other
than a court with jurisdiction over the Indemnitee) that the indemnitee has not
met such standard of conduct or the judicial determination that the indemnitee
should be indemnified under the indemnity agreement or applicable law, shall be
a defense to the indemnitee's claim or create a presumption that the indemnitee
has not met any particular standard of conduct or did not have any particular
belief.
