UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 4)*
Move, Inc. |
(Name of Issuer)
Common Stock, par value $0.001 per share |
(Title of Class of Securities)
62458M108 |
(CUSIP Number)
Fred Anderson Elevation Partners, L.P. 2800 Sand Hill Road, Suite 160 Menlo Park, CA 94025 (650) 687-6700
Copy to:
Kirsten J Jensen, Esq. Simpson Thacher & Bartlett LLP 2550 Hanover Street Palo Alto, California 94304 (650) 251-5000 |
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
March 23, 2012 |
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ¨
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.
* | The remainder of this cover page shall be filled out for a Reporting Persons initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. |
The information required on the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 (Act) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
CUSIP No. 62458M108 |
1. |
Names of Reporting Persons.
Elevation Partners, L.P. | |||||
2. | Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b)
| |||||
3. | SEC Use Only
| |||||
4. | Source of Funds (See Instructions)
Not Applicable | |||||
5. | Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
| |||||
6. | Citizenship or Place of Organization
Delaware | |||||
Number of Shares Beneficially Owned by Each Reporting Person With |
7. | Sole Voting Power
2,918,646.45 | ||||
8. | Shared Voting Power
0 | |||||
9. | Sole Dispositive Power
2,918,646.45 | |||||
10. | Shared Dispositive Power
0 | |||||
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person
2,918,646.45 | |||||
12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
| |||||
13. |
Percent of Class Represented by Amount in Row (11)
6.9% | |||||
14. |
Type of Reporting Persons (See Instructions)
PN |
2
CUSIP No. 62458M108 |
1. |
Names of Reporting Persons.
Elevation Associates, L.P. | |||||
2. | Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b)
| |||||
3. | SEC Use Only
| |||||
4. | Source of Funds (See Instructions)
Not Applicable | |||||
5. | Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
| |||||
6. | Citizenship or Place of Organization
Delaware | |||||
Number of Shares Beneficially Owned by Each Reporting Person With |
7. | Sole Voting Power
2,918,646.45* | ||||
8. | Shared Voting Power
0 | |||||
9. | Sole Dispositive Power
2,918,646.45* | |||||
10. | Shared Dispositive Power
0 | |||||
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person
2,918,646.45* | |||||
12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
| |||||
13. |
Percent of Class Represented by Amount in Row (11)
6.9% | |||||
14. |
Type of Reporting Persons (See Instructions)
PN |
* | The Reporting Person disclaims beneficial ownership as described under Item 5. |
3
CUSIP No. 62458M108 |
1. |
Names of Reporting Persons.
Elevation Associates, LLC | |||||
2. | Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b)
| |||||
3. | SEC Use Only
| |||||
4. | Source of Funds (See Instructions)
Not Applicable | |||||
5. | Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
| |||||
6. | Citizenship or Place of Organization
Delaware | |||||
Number of Shares Beneficially Owned by Each Reporting Person With |
7. | Sole Voting Power
2,918,646.45* | ||||
8. | Shared Voting Power
0 | |||||
9. | Sole Dispositive Power
2,918,646.45* | |||||
10. | Shared Dispositive Power
0 | |||||
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person
2,918,646.45* | |||||
12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
| |||||
13. |
Percent of Class Represented by Amount in Row (11)
6.9% | |||||
14. |
Type of Reporting Persons (See Instructions)
OO |
* | The Reporting Person disclaims beneficial ownership as described under Item 5. |
4
CUSIP No. 62458M108 |
1. |
Names of Reporting Persons.
Elevation Employee Side Fund, LLC | |||||
2. | Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b)
| |||||
3. | SEC Use Only
| |||||
4. | Source of Funds (See Instructions)
Not Applicable | |||||
5. | Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
| |||||
6. | Citizenship or Place of Organization
Delaware | |||||
Number of Shares Beneficially Owned by Each Reporting Person With |
7. | Sole Voting Power
642.24 | ||||
8. | Shared Voting Power
0 | |||||
9. | Sole Dispositive Power
642.24 | |||||
10. | Shared Dispositive Power
0 | |||||
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person
642.24 | |||||
12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
| |||||
13. |
Percent of Class Represented by Amount in Row (11)
Less than 0.1% | |||||
14. |
Type of Reporting Persons (See Instructions)
OO |
5
CUSIP No. 62458M108 |
1. |
Names of Reporting Persons.
Elevation Management, LLC | |||||
2. | Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b)
| |||||
3. | SEC Use Only
| |||||
4. | Source of Funds (See Instructions)
Not Applicable | |||||
5. | Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
| |||||
6. | Citizenship or Place of Organization
Delaware | |||||
Number of Shares Beneficially Owned by Each Reporting Person With |
7. | Sole Voting Power
642.24* | ||||
8. | Shared Voting Power
0 | |||||
9. | Sole Dispositive Power
642.24* | |||||
10. | Shared Dispositive Power
0 | |||||
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person
642.24* | |||||
12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
| |||||
13. |
Percent of Class Represented by Amount in Row (11)
Less than 0.1% | |||||
14. |
Type of Reporting Persons (See Instructions)
OO |
* | The Reporting Person disclaims beneficial ownership as described under Item 5. |
6
CUSIP No. 62458M108 |
1. |
Names of Reporting Persons.
Fred Anderson | |||||
2. | Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b)
| |||||
3. | SEC Use Only
| |||||
4. | Source of Funds (See Instructions)
Not Applicable | |||||
5. | Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
| |||||
6. | Citizenship or Place of Organization
United States | |||||
Number of Shares Beneficially Owned by Each Reporting Person With |
7. | Sole Voting Power
0 | ||||
8. | Shared Voting Power
2,919,288.69* | |||||
9. | Sole Dispositive Power
0 | |||||
10. | Shared Dispositive Power
2,919,288.69* | |||||
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person
2,919,288.69* | |||||
12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
| |||||
13. |
Percent of Class Represented by Amount in Row (11)
6.9% | |||||
14. |
Type of Reporting Persons (See Instructions)
IN |
* | The Reporting Person disclaims beneficial ownership as described under Item 5. |
7
CUSIP No. 62458M108 |
1. |
Names of Reporting Persons.
Paul Hewson | |||||
2. | Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b)
| |||||
3. | SEC Use Only
| |||||
4. | Source of Funds (See Instructions)
Not Applicable | |||||
5. | Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
| |||||
6. | Citizenship or Place of Organization
Ireland | |||||
Number of Shares Beneficially Owned by Each Reporting Person With |
7. | Sole Voting Power
0 | ||||
8. | Shared Voting Power
2,919,288.69* | |||||
9. | Sole Dispositive Power
0 | |||||
10. | Shared Dispositive Power
2,919,288.69* | |||||
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person
2,919,288.69* | |||||
12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
| |||||
13. |
Percent of Class Represented by Amount in Row (11)
6.9% | |||||
14. |
Type of Reporting Person (See Instructions)
IN |
* | The Reporting Person disclaims beneficial ownership as described under Item 5. |
8
CUSIP No. 62458M108 |
1. |
Names of Reporting Persons.
Roger McNamee | |||||
2. | Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b)
| |||||
3. | SEC Use Only
| |||||
4. | Source of Funds (See Instructions)
Not Applicable | |||||
5. | Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
| |||||
6. | Citizenship or Place of Organization
United States | |||||
Number of Shares Beneficially Owned by Each Reporting Person With |
7. | Sole Voting Power
0 | ||||
8. | Shared Voting Power
2,922,558.95* | |||||
9. | Sole Dispositive Power
0 | |||||
10. | Shared Dispositive Power
2,922,558.95* | |||||
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person
2,922,558.95* | |||||
12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
| |||||
13. |
Percent of Class Represented by Amount in Row (11)
6.9% | |||||
14. |
Type of Reporting Persons (See Instructions)
IN |
* | The Reporting Person disclaims beneficial ownership of 2,919,288.69 of such shares as described under Item 5. |
9
CUSIP No. 62458M108 |
1. |
Names of Reporting Persons.
Bret Pearlman | |||||
2. | Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b)
| |||||
3. | SEC Use Only
| |||||
4. | Source of Funds (See Instructions)
Not Applicable | |||||
5. | Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
| |||||
6. | Citizenship or Place of Organization
United States | |||||
Number of Shares Beneficially Owned by Each Reporting Person With |
7. | Sole Voting Power
0 | ||||
8. | Shared Voting Power
2,919,288.69* | |||||
9. | Sole Dispositive Power
0 | |||||
10. | Shared Dispositive Power
2,919,288.69* | |||||
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person
2,919,288.69* | |||||
12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
| |||||
13. |
Percent of Class Represented by Amount in Row (11)
6.9% | |||||
14. |
Type of Reporting Persons (See Instructions)
IN |
* | The Reporting Person disclaims beneficial ownership as described under Item 5. |
10
This Amendment No. 4 supplements and amends the statement on Schedule 13D filed on December 9, 2005, as amended by Amendment No. 1 filed on December 16, 2008, Amendment No. 2 filed on February 10, 2011 and Amendment No. 3 filed on February 23, 2011 (as amended, the Schedule 13D). Each Item below amends and supplements the information disclosed under the corresponding Item of the Schedule 13D. Capitalized terms used but not defined herein shall have the meanings attributed to them in the Schedule 13D.
Item 4. | Purpose of Transaction |
Item 4 of the Schedule 13D is hereby supplemented by adding inserting the following paragraphs immediately prior to the last two paragraphs of Item 4:
Agreement, Waiver and Consent
On March 23, 2012, the Purchasers executed an Agreement, Waiver and Consent with the Issuer (the Second Waiver) pursuant to which the Purchasers agreed to waive, effective as of March 21, 2012, certain provisions of the Certificate of Designation to permit the redemption by the Issuer of all remaining shares of the Series B Preferred Stock owned by the Purchasers on April 6, 2012 as further set forth in the Second Waiver. In the absence of the Second Waiver, under the terms of the Certificate of Designation, the Issuer currently has the right to elect to redeem Series B Preferred Stock on prior notice of not less than thirty days.
The description of the terms of the Second Waiver set forth herein does not purport to be complete and is qualified in its entirety by reference to the full text of the Second Waiver attached hereto as Exhibit 7, which is incorporated by reference.
Item 5. | Interest in Securities of the Issuer |
Item 5 of the Schedule 13D is hereby amended and supplemented by replacing the first three paragraphs thereof with the following three paragraphs:
(a), (b) The following disclosure assumes that there are 39,437,719 shares of Issuer Common Stock outstanding as of February 10, 2012, which figure is based on Issuers Annual Report on Form 10-K filed with the Securities and Exchange Commission on February 17, 2012.
Pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the Exchange Act), as a result of the acquisition of Series B Preferred Stock at the Closing and the payment of in-kind dividends thereafter, Elevation may be deemed to beneficially own 2,918,646.45 shares of Issuer Common Stock, which is subject to issuance upon conversion of the Series B Preferred Stock. The 2,918,646.45 shares of Issuer Common Stock would constitute approximately 6.9% of the Issuer Common Stock outstanding upon such conversion.
Pursuant to Rule 13d-3 under the Exchange Act, Side Fund may be deemed to beneficially own 642.24 shares of Issuer Common Stock, which is subject to issuance upon conversion of the Series B Preferred Stock acquired. The 642.24 shares of Issuer Common Stock would constitute less than 0.1% of the Issuer Common Stock outstanding upon such conversion.
Item 7. | Exhibits |
Item 7 of the Schedule 13D is hereby amended and supplemented by adding an additional exhibit as follows:
7. | Agreement, Waiver and Consent among Move, Inc., Elevation Partners, L.P. and Elevation Employee Side Fund, LLC (attached to Notice of Redemption) (filed herewith). |
11
Signatures
After reasonable inquiry and to the best of its knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
Date: March 23, 2012
ELEVATION PARTNERS, L.P. | ||
By: | Elevation Associates, L.P., | |
as General Partner | ||
By: | Elevation Associates, LLC, | |
as General Partner | ||
By: | * | |
Name: Fred Anderson | ||
Title: Manager | ||
ELEVATION ASSOCIATES, L.P. | ||
By: | Elevation Associates, LLC, | |
as General Partner | ||
By: | * | |
Name: Fred Anderson | ||
Title: Manager | ||
ELEVATION ASSOCIATES, LLC | ||
By: | * | |
Name: Fred Anderson | ||
Title: Manager | ||
ELEVATION EMPLOYEE SIDE FUND, LLC | ||
By: | Elevation Management, LLC, | |
as Managing Member | ||
By: | * | |
Name: Fred Anderson | ||
Title: Manager |
12
ELEVATION MANAGEMENT, LLC | ||
By: | * | |
Name: Fred Anderson | ||
Title: Manager |
* |
Fred Anderson |
* |
Paul Hewson |
* |
Roger McNamee |
* |
Bret Pearlman |
* /s/ Tracy Hogan |
Attorney-in-fact for Reporting Persons pursuant to Power of Attorney |
13
Exhibit 7
MOVE, INC.
NOTICE OF REDEMPTION
Series B Convertible Participating Preferred Stock
March 21, 2012
TO: | ||
Elevation Partners, L.P. | Elevation Employee Side Fund, LLC | |
2800 Sandhill Road | 2800 Sandhill Road | |
Menlo Park, CA 94025 | Menlo Park, CA 94025 |
NOTICE IS HEREBY GIVEN by Move, Inc., a Delaware corporation formerly known as Homestore, Inc. (the Corporation), the issuer of certain shares of Series B Convertible Participating Preferred Stock (the Series B Preferred Stock), issued pursuant to that certain Certificate of Designation of Series B Convertible Participating Preferred Stock of Homestore, Inc. (the Certificate of Designation), executed by the Corporation on November 29, 2005, that, pursuant to Section 6(b) of the Certificate of Designation, the Corporation has elected to redeem, on April 6, 2012 (the Redemption Date), all of the outstanding shares of the Series B Preferred Stock (the Redemption Shares), such transaction to be referred to herein as the Redemption. All capitalized terms used but not otherwise defined in this notice have the respective meanings ascribed in the Certificate of Designation.
Pursuant to the Agreement, Waiver and Consent provided for below (the Agreement, Waiver and Consent) among Elevation Partners, L.P. (Elevation), Elevation Side Fund, LLC (Side Fund, and together with Elevation, the Stockholders), and the Corporation, among other things, each Stockholder is waiving (i) the provisions of Section 6(b)(ii) of the Certificate of Designation (requiring no less than thirty (30) days notice prior to the Redemption Date for the Redemption), so long as no less than fifteen (15) days prior notice are provided with respect to such Redemption Date, and (ii) the provisions of Section 6(c)(i) of the Certificate of Designation (requiring the deposit of the Redemption Price with a redemption agent in trust).
This notice is being given to the holders of record of the Series B Preferred Stock as they appear in the records of the Corporation as of March 21, 2012 (the Record Date). All Redemption Shares are to be redeemed on the Redemption Date. Set forth below with respect to each holder of Series B Preferred Stock as of the Record Date is (i) the number of shares of Series B Preferred Stock held on the Record Date by such person, (ii) the number of Redemption Shares held by such person to be redeemed on the Redemption Date and (iii) the number of shares of Series B Preferred Stock to be held by such person immediately after giving effect to the Redemption.
Stockholder of Record |
Number of Shares of Series B Preferred Stock Held on the Record Date |
Number of Redemption Shares to be Redeemed on the Redemption Date |
Number of Shares of Series B Preferred Stock Held Immediately After the Redemption | |||
Elevation |
49,033.26 | 49,033.26 | 0.00 | |||
Side Fund |
10.79 | 10.79 | 0.00 | |||
Total |
49,044.05 | 49,044.05 | 0.00 |
Pursuant to Section 6(b)(i) of the Certificate of Designation, the redemption price payable in respect of each share of Series B Preferred Stock to be redeemed in an optional redemption is the greater of (x) the Regular Liquidation Preference and (y) the value of the number of shares of Common Stock issuable upon conversion of such share of Series B Preferred Stock if converted as of the Redemption Date. As of the date first set forth above, the Corporation expects that the redemption price payable with respect to each share of Series B Preferred Stock to be redeemed on the Redemption Date (i.e., the Redemption Shares) will be the Regular Liquidation Preference, and, accordingly, will be an amount equal to the Original Purchase Price plus all accrued but unpaid dividends on such share, for an aggregate per share redemption price as of the Redemption Date of $1,000 (the Redemption Price) (subject to final determination as of the Redemption Date in accordance with the Certificate of Designation), and an aggregate Redemption Price for all outstanding shares of Series B Preferred Stock of $49,497,026.35, computed as follows:
Original Purchase Price per Share |
$ | 1,000.00 | ||
Multiplied by: Redemption Shares |
49,044.05 | |||
|
|
|||
Subtotal |
$ | 49,044,050 | ||
Dividends accrued and unpaid on such outstanding shares through the date immediately prior to the Redemption Date includes dividend accrued and unpaid as of March 31, 2012 ($429,135.49) and further dividend accrued and unpaid from April 1, 2012 through the date immediately prior to the Redemption Date ($23,840.86) |
$ | 452,976.35 | ||
|
|
|||
Aggregate Redemption Price |
$ | 49,497,026.35 | ||
|
|
Pursuant to the Agreement, Waiver and Consent, the Stockholders are waiving the provisions of Section 6(c)(i) of the Certificate of Designation that would require the deposit of the Redemption Price with a redemption agent in trust, and agreed that in lieu thereof, the Redemption Price with respect to the 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 Corporation.
Dividends on the Redemption Shares will cease to accrue on the Redemption Date; the Redemption Shares will no longer be deemed to be outstanding; and all powers, designations, preferences and other rights of each holder thereof as a holder of shares of Series B Preferred Stock that constitute Redemption Shares (except the right to receive the Redemption Price) shall cease and terminate with respect to such shares; provided that in the event that a Redemption Share is not redeemed due to a default in payment by the Corporation or because the Corporation is otherwise unable to pay the Redemption Price in cash in full, (i) such Redemption Share will remain outstanding and will be entitled to all of the powers, designations, preferences and other rights (including but not limited to the accrual and payment of dividends and the conversion rights) as provided in the Certificate of Designation and (ii) notwithstanding anything to the contrary in this notice, from and after the date hereof, the Corporation shall retain all rights held by the Corporation under the Certificate of Designation with respect to such Redemption Share, including, but not limited to, the right to redeem, at its option and election, any outstanding shares of Series B Preferred Stock at a redemption price determined in accordance with the Certificate of Designation.
DELIVERY OF SHARE CERTIFICATES REPRESENTING REDEMPTION SHARES TO AN ADDRESS OTHER THAN TO THE CORPORATION AT 910 E. HAMILTON AVE., 6TH FLOOR, CAMPBELL, CA 95008 WILL NOT CONSTITUTE A VALID DELIVERY.
DATED as of the 21st day of March, 2012
MOVE, INC.
By: |
/s/ James S. Caulfield | |
Name: |
James S. Caulfield | |
Title: |
Executive Vice President, General Counsel & Secretary |
AGREEMENT, WAIVER & CONSENT BY STOCKHOLDERS
This Agreement, Waiver and Consent is entered into as a part of the above Notice of Redemption and upon execution by the parties hereto shall be effective of even date with such Notice of Redemption. All capitalized terms used in this Agreement, Waiver and Consent but not otherwise defined in this Agreement, Waiver and Consent have the respective meanings ascribed in such notice or, if none, in the Certificate of Designation.
The Stockholders are collectively the holders of record of all of the outstanding shares of Series B Preferred Stock as of the date hereof and have agreed to provide the following representations, warranties, covenants and waivers with respect to the contemplated Redemption. Accordingly, in consideration of the premises contained herein and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, each Stockholder, by its execution below, hereby:
(i) | represents and warrants to the Corporation, solely on behalf of itself, that such Stockholder is the record and beneficial owner of: (a) in the case of Elevation, 49,033.26 shares of Series B Preferred Stock (the Elevation Partners Shares) and no additional shares of Series B Preferred Stock; and (b) in the case of Side Fund, 10.79 shares of Series B Preferred Stock (the Side Fund Shares) and no additional shares of Series B Preferred Stock, in each case, free and clear of any liens, claims, encumbrances, security interests, options, charges or restrictions of any kind (collectively, Encumbrances), and, on the Redemption Date, such Stockholder shall deliver to the Corporation good and valid title to the Redemption Shares held by such Stockholder, free and clear of any Encumbrances; |
(ii) | covenants that such Stockholder shall, at least three (3) Business Days prior to the Redemption Date, designate by written notice to the Corporation the account or accounts to which the Redemption Price payable to such Stockholder in exchange for the Redemption Shares held by such Stockholder shall be paid by wire transfer; |
(iii) | covenants that such Stockholder shall, on the Redemption Date, deliver to the Corporation certificates representing the Redemption Shares held by such Stockholder, duly endorsed (or accompanied by duly executed stock powers); |
(iv) | covenants that such Stockholder shall, upon request, execute and deliver any additional documents deemed by the Corporation (or its successor) to be necessary or desirable to complete the surrender of the certificate(s) representing the Redemption Shares; |
(v) | acknowledges and agrees that immediately after giving effect to the Redemption Elevation shall no longer hold any shares of Series B Preferred Stock, and Side Fund shall no longer hold any shares of Series B Preferred Stock; |
(vi) | acknowledges and agrees to the provisions of this notice, including, without limitation, the provisions with respect to the Redemption, the Redemption Date and the Redemption Price; |
(vii) | acknowledges and agrees that, to the extent Redemption is not permitted under the Delaware General Corporation Law, the Certificate of Designation, the Stockholders Agreement or any of the Corporations organizational documents, the Redemption shall be deemed for all purposes to be, and shall be treated for all purposes as, a stock purchase transaction rather than a redemption of the Redemption Shares effected pursuant to the Certificate of Designation, and this notice shall be deemed for all purposes to be, and shall be treated for all purposes as, a stock purchase agreement; |
(viii) | to the extent (and in each case only to the extent) required to effect the Redemption, hereby 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 Redemption, so long as no less than fifteen (15) days prior notice is provided with respect to such Redemption Date, and each Stockholder hereby acknowledges its timely receipt of such prior notice and the validity of such notice; |
(ix) | to extent (and in each case only to the extent) required to effect the Redemption, hereby waives the provisions of Section 6(c)(i) of the Certificate of Designation that would require 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 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 Corporation; |
(x) | agrees to provide the Corporation with prompt written notice of any transfer of any of its shares of Series B Preferred Stock prior to the Redemption Date except in connection with the Redemption; |
(xi) | agrees to take such further action as may be reasonably requested by the Corporation to implement this Agreement, Waiver and Consent, including voting its shares of Series B Preferred Stock to amend the Certificate of Designation in a manner consistent with this Agreement, Waiver and Consent if such amendment is determined by the Corporation to be necessary or desirable; and |
(xii) | agrees, and the Corporation also agrees, that this Agreement, Waiver and Consent shall be governed by and construed in accordance with the internal laws of the State of Delaware, that this Agreement, Waiver and Consent shall be binding on any respective successors and permitted transferees of each Stockholder and the of the Corporation, that this Agreement, Waiver and Consent 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 and that delivery of an executed signature page of this Agreement, Waiver and Consent by facsimile or electronic transmission shall be effective as delivery of a manually executed counterpart hereof. |
Except as expressly waived hereby with respect to the 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 Redemption does not occur on or before April 6, 2012, the waivers contained in this Agreement, Waiver and Consent shall terminate in their entirety and the Certificate of Designation shall continue in full force and effect in accordance with the provisions thereof.
DATED as of the 21st day of March, 2012
ELEVATION: | SIDE FUND: | |||||||||
Elevation Partners, L.P. | Elevation Employee Side Fund, LLC | |||||||||
By: Elevation Associates, L.P., as General Partner | By: Elevation Management, LLC, as Managing Member | |||||||||
By: Elevation Associates, LLC, as General Partner | ||||||||||
By: | /s/ Fred Anderson |
By: | /s/ Fred Anderson | |||||||
Name: | Fred Anderson |
Name: | Fred Anderson | |||||||
Title: | Manager |
Title: | Manager |
MOVE, INC. | ||
By: | /s/ James S. Caulfield | |
Name: | James S. Caulfield | |
Title: | Executive Vice President, General Counsel & Secretary |
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