Waiver and Consent agreement dated February 9, 2011, between Move, Inc. and both Elevation Partners, L.P. and Elevation Side Fund, LLC WAIVER AND CONSENT (“Waiver and Consent Letter”)
Exhibit 10.1
Waiver and Consent agreement dated
February 9,
2011,
between Move, Inc. and both Elevation
Partners, L.P. and Elevation Side Fund, LLC
WAIVER
AND CONSENT
(“Waiver and Consent
Letter”)
February
9, 2011
Move,
Inc.
00000
Xxxxxxx Xxxxx Xxxx
Xxxxxxxx
Xxxxxxx, XX 00000
Dear
Sirs:
Reference
is made to the Certificate of Designation of Series B Convertible Participating
Preferred Stock (“Series B Preferred”)
of Move, Inc., a Delaware corporation (f/k/a Homestore, Inc.) (the “Company”), as filed
with the Secretary of State of the State of Delaware on November 29, 2005 and as
in effect on the date hereof (the “Certificate of
Designation”) and the Stockholders Agreement, dated as of November 29,
2005 (the “Stockholders
Agreement”) among the Company, Elevation Partners, L.P., a Delaware
limited partnership (“Elevation”) and
Elevation Employee Side Fund, LLC (“Side Fund”, and
together with Elevation, the “Stockholders”).
All capitalized terms used but not defined herein shall have the
respective meanings set forth in the Certificate of Designation.
The
Stockholders are collectively the holders of record of all of the outstanding
shares of Series B Preferred as of the date hereof and have agreed to provide
this waiver of certain provisions of the Certificate of Designation so as to
permit a partial redemption of the Series B Preferred. Accordingly,
in consideration of the premises contained herein and other good and valuable
consideration, the sufficiency and receipt of which are hereby acknowledged, the
parties hereto agree as follows:
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1.
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Each
of the Stockholders hereby agrees to the optional redemption by the
Company of the Redemption Shares (as defined below), in each case at the
Redemption Price as determined in accordance with the Certificate of
Designation and on a Redemption Date on or prior to February 28, 2011 (the
“Partial
Redemption”), and to the extent (and in each case only to the
extent) required to effect the Partial Redemption, each of the
Stockholders hereby:
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a.
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waives
the provisions of Section 6(b)(i) of the Certificate of Designation that
would require any optional redemption pursuant to such section include all
of the outstanding shares of Series B
Preferred;
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b.
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waives
the provisions of Section 6(b)(ii) of the Certificate of Designation that
would require no less than thirty (30) days notice prior to the Redemption
Date for the Partial Redemption, so long as no less than ten (10) days
prior notice is provided with respect to such Redemption Date;
and
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c.
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waives
the provisions of Section 6(c)(i) of the Certificate of Designation that
would required the deposit of the Redemption Price with a redemption agent
in trust, and agrees that in lieu thereof, the Redemption Price with
respect to the Partial Redemption may be paid to the Stockholders on the
Redemption Date by wire transfer of immediately available funds to the
account or accounts designated by each Stockholder in a written notice to
the Company.
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2.
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The
“Redemption Shares” are an aggregate of 70,000.00 shares of the Series B
Preferred, which shall consist for all purposes (including without
limitation the Certificate of Designation and the Stockholders Agreement)
of the following:
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a.
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19,039.86
shares of Series B Preferred paid to Elevation prior to the Redemption
Date as Regular Dividends and currently held of record by
Elevation,
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b.
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4.19
shares of Series B Preferred paid to Side Fund prior to the Redemption
Date as Regular Dividends and currently held of record by Side
Fund,
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c.
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50,944.74
shares of Series B Preferred issued to Elevation on the Original Issue
Date and currently held of record by Elevation,
and
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d.
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11.21
shares of Series B Preferred issued to Side Fund on the Original Issue
Date, and currently held of record by Side
Fund.
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Upon
consummation of the Partial Redemption, the Stockholders will hold in the
aggregate (i) for purposes of the Certificate of Designation, 49.04% of the
shares of Series B Preferred Stock that were issued to the Stockholders on the
Original Issuance Date (as adjusted for stock dividends, splits, combinations
and similar events, but not for conversion or Regular Dividends) and (ii) for
purposes of the Certificate of Designation, 49.04% of the “Purchased Shares”
issued on the “Closing Date” (as such terms are defined in the Stockholders
Agreement) (as adjusted for stock splits, combinations, reclassifications and
similar transactions but not conversion).
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3.
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Except
as expressly waived hereby with respect to the Partial Redemption, the
Certificate of Designation shall continue to be, and shall remain, in full
force and effect in accordance with the provisions thereof. To
the extent the Redemption Date with respect to the Partial Redemption does
not occur on or before February 28, 2011, the waivers contained in this
Waiver and Consent Letter shall terminate in their entirety and the
Certificate of Designation shall continue in full force and effect in
accordance with the provisions thereof. All redemptions of
Series B Preferred other than the Partial Redemption shall remain subject
to the provisions of the Certificate of Designation and the waivers
contained in this Waiver and Consent Letter shall not apply to and shall
have no effect on any redemption other than the Partial Redemption. This
Waiver and Consent Letter shall not be deemed to be a waiver of, or
consent to, any other term or condition of the Certificate of Designation
or to prejudice any other rights or rights which the Company, the
Stockholders or any holder of Series B Preferred other than the
Stockholders may now have or may have in the future under or in connection
with the Certificate of Designation or any of the instruments or
agreements referred to therein, as the same may be amended from time to
time.
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4.
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This
Waiver and Consent Letter shall be governed by and construed in accordance
with the internal laws of the State of
Delaware.
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5.
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The
Stockholders shall provide the Company with prompt written notice of any
transfer of any of the Redemption Shares prior to March 1, 2011 other than
in connection with the Partial Redemption. This Waiver and
Consent Letter shall be binding on any successors and permitted
transferees of the Stockholders. The Stockholders and the
Company each agree to take such further action as may be reasonably
requested by the other to implement this Waiver and Consent Letter,
including without limitation (a) in the case of the Stockholders, voting
their shares of Series B Preferred to amend the Certificate of Designation
in a manner consistent with this Waiver and Consent Letter if such
amendment is determined by the Company to be necessary or desirable or (b)
effecting the Partial Redemption through an alternative structure that is
tax-neutral to all parties.
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6.
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This
Waiver and Consent Letter may be executed by one or more of the parties
hereto in any number of separate counterparts and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
Delivery of an executed signature page of this Waiver and Consent
Letter by facsimile or electronic transmission shall be effective as
delivery of a manually executed counterpart hereof.
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blank]
IN
WITNESS WHEREOF, the parties have executed this Waiver and Consent Letter as of
the day and year first above written.
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MOVE, INC.
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| By: | /s/ Xxxxxx X. Xxxxxxxxx | ||
| Name: | |||
| Title: | |||
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ELEVATION
PARTNERS, L.P.
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| By: | Elevation Associates, L.P., as General Partner | ||
| By: | Elevation Associates, L.P., as General Partner | ||
| By: | /s/ Xxxx X. Xxxxxxxx | ||
| Name: | Xxxx X. Xxxxxxxx | ||
| Title: | Managing Director |
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ELEVATION
SIDE FUND, LLC
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| By: | Elevation Management, LLC, as Managing Member | ||
| By: | /s/ Xxxx X. Xxxxxxxx | ||
| Name: | Xxxx X. Xxxxxxxx | ||
| Title: | naging Director | ||
