UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of Earliest Event Reported): February 11, 2015

 

 

ZILLOW GROUP, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Washington   333-198695   47-1645716

(State or other jurisdiction

of incorporation or organization)

 

(Commission

File Number)

 

(I.R.S. Employer

Identification Number)

1301 Second Avenue, Floor 31, Seattle, Washington   98101
(Address of principal executive offices)   (Zip Code)

(206) 470-7000

https://twitter.com/zillowgroup

(Registrant’s telephone number, including area code)

ZEBRA HOLDCO, INC.

(Former name or former address, if changed since last report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


Introductory Note

Effective February 17, 2015, pursuant to the Agreement and Plan of Merger dated as of July 28, 2014 (the “Merger Agreement”) by and among Zillow, Inc. (“Zillow”), Zillow Group, Inc., f/k/a Zebra Holdco, Inc. (the “Company”), and Trulia, Inc. (“Trulia”), following the consummation of the mergers contemplated by the Merger Agreement (the “Mergers”), each of Zillow and Trulia became wholly owned subsidiaries of the Company.

Upon completion of the Mergers, each share of Class A common stock of Zillow (other than shares held by Zillow, the Company, Trulia, or any direct or indirect wholly owned subsidiary of Zillow or Trulia) was converted into the right to receive one share of fully paid and nonassessable Class A common stock of the Company (“Company Class A Common Stock”), each share of Class B common stock of Zillow was converted into the right to receive one share of fully paid and nonassessable Class B common stock of the Company, and each share of Trulia common stock was converted into the right to receive 0.444 of a share of fully paid and nonassessable Company Class A Common Stock.

 

Item 1.01 Entry into a Material Definitive Agreement.

Pursuant to and in accordance with the Merger Agreement, the Company entered into a supplemental indenture (the “Supplemental Indenture”), dated as of February 17, 2015, with Wells Fargo Bank, National Association, as trustee, and Trulia, pursuant to which the Company agreed to guarantee the obligations of Trulia under the Indenture dated as of December 17, 2013 (the “Indenture”) governing Trulia’s 2.75% Convertible Senior Notes due 2020 (each a “Note” and together the “Notes”).

Pursuant to the Supplemental Indenture, the Holder (as defined in the Indenture) of each Note that was outstanding as of the effective time of the Trulia merger has the right to convert each $1,000 principal amount of such Note into the number of shares of Company Class A Common Stock that a Holder of a number of shares of Trulia common stock equal to the Conversion Rate (as defined in the Indenture) immediately prior to the effective time of the Trulia merger would have been entitled to receive upon the effective time of the Trulia merger, and the Company fully and unconditionally guarantees all of the payment obligations of Trulia under the Notes and the Indenture. The Notes bear interest at a rate of 2.75% per annum, payable semiannually in arrears in cash on June 15 and December 15 of each year. The Notes mature on December 15, 2020, subject to earlier repurchase, conversion or redemption. The indebtedness evidenced by the Notes may be accelerated upon the occurrence of events of default under the Indenture, which are customary for securities of this nature. Holders may convert their Notes at any time prior to the close of business on the business day immediately preceding December 15, 2020.

The conversion rate for the Notes as of immediately prior to the effective time of the Trulia merger was 27.8303 shares of Trulia common stock per $1,000 principal amount of Notes. Upon the effective time of the Trulia merger, the conversion rate was, and remains as of the date of this report, a number of shares of Company Class A Common Stock per $1,000 principal amount of the Notes equal to 27.8303 times 0.444. Such conversion rate is subject to adjustment in certain events. As of February 13, 2015, there were outstanding $230 million principal amount of Notes.

A copy of the Indenture (including a form of the Notes) is filed as Exhibit 4.1 to this Current Report on Form 8-K and is incorporated herein by reference. The descriptions of the Indenture and the Notes do not purport to be a complete description and are qualified in their entirety by reference to the full text of the Indenture and Notes. A copy of the Supplemental Indenture is filed as Exhibit 4.2 to this Current Report on Form 8-K and is incorporated herein by reference. The description of the Supplemental Indenture does not purport to be a complete description and is qualified in its entirety by reference to the full text of the Supplemental Indenture.

 

Item 2.01 Completion of Acquisition or Disposition of Assets.

The information set forth above under the heading “Introductory Note” is incorporated herein by reference.

The Zillow Class A common stock will be delisted from the NASDAQ Global Select Market and the Trulia common stock will be delisted from the New York Stock Exchange. Trading on the NASDAQ Global Select Market in shares of Zillow Class A common stock and trading on the New York Stock Exchange in shares of Trulia common stock will be halted as of the close of trading on February 17, 2015.


The issuance of Company Class A Common Stock in connection with the Mergers, as described above, was registered under the Securities Act of 1933, as amended (the “Securities Act”), pursuant to a registration statement on Form S–4 (File No. 333–198695), as amended, filed with the Securities and Exchange Commission (the “SEC”) and declared effective on November 17, 2014 (the “Form S-4”). The joint proxy statement/prospectus (the “Joint Proxy Statement/Prospectus”) included in the registration statement contains additional information about the Mergers and the related transactions. Additional information about the Mergers is also contained in Current Reports on Form 8–K filed by Zillow and Trulia and incorporated by reference into the Joint Proxy Statement/Prospectus.

Pursuant to Rule 12g-3(c) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Company Class A Common Stock is deemed to be registered under Section 12(b) of the Exchange Act. The Company Class A Common Stock will trade on the NASDAQ Global Select Market under the ticker symbol “Z” beginning on February 18, 2015.

The Company hereby incorporates by reference the description of Company Class A Common Stock, par value $0.0001 per share, contained under the heading “Description of Holdco’s Capital Stock” in the Form S-4 and Joint Proxy Statement/Prospectus.

The Merger Agreement, which is filed as Exhibit 2.1 to this Current Report on Form 8-K and is incorporated herein by reference, and this summary are not intended to modify or supplement any factual disclosures about the Company, Zillow or Trulia, and should not be relied upon as disclosure about the Company, Zillow or Trulia without consideration of the periodic and current reports and statements that the Company, Zillow and Trulia file with the SEC. The terms of the Merger Agreement govern the contractual rights and relationships, and allocate risks, among the parties in relation to the transactions contemplated by the Merger Agreement. In particular, the representations and warranties made by the parties to each other in the Merger Agreement reflect negotiations between, and are solely for the benefit of, the parties thereto and may be limited or modified by a variety of factors, including: subsequent events, information included in public filings, disclosures made during negotiations, correspondence between the parties and disclosure schedules to the Merger Agreement. Accordingly, the representations and warranties may not describe the actual state of affairs at the date they were made or at any other time and you should not rely on them as statements of fact. The Company acknowledges that, notwithstanding the inclusion of the foregoing cautionary statements, it is responsible for considering whether additional specific disclosures of material information regarding material contractual provisions are required to make the statements in this Form 8-K not misleading.

 

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information set forth above in Item 1.01 with respect to the Supplemental Indenture is incorporated herein by reference.

 

Item 2.05 Costs Associated with Exit or Disposal Activities.

On February 17, 2015, in connection with the Mergers, Trulia undertook a restructuring plan that will result in a total workforce reduction of approximately 342 employees, or approximately 32% of Trulia’s workforce, at its Bellevue, Denver, New York and San Francisco locations, primarily in the sales and marketing functions. The restructuring plan is a result of the integration of Trulia’s business and operations with and into Zillow’s business. Employees directly affected by the restructuring plan will be provided with severance payments, vesting acceleration, and outplacement assistance. Trulia expects to complete the restructuring by the end of 2015.

As a result of the restructuring plan, Trulia plans to record a one-time restructuring charge of between approximately $21.5 million and $24.5 million in 2015, primarily representing cash payments for severance and other personnel related expenses, and non-cash expenses relating to stock vesting acceleration. Severance payments will be paid out by the end of 2015. The restructuring charge that Trulia expects to incur in connection with the restructuring is subject to a number of assumptions, and actual results may materially differ. Trulia may also incur other material charges not currently contemplated due to events that may occur as a result of, or associated with, the restructuring plan.


Item 3.02 Unregistered Sales of Equity Securities.

The information set forth in Item 5.02 with respect to the issuance of a share of Company Class A Common Stock to Zillow is hereby incorporated by reference.

 

Item 5.01 Changes in Control of Registrant.

As a result of the Mergers, shares of Company Class A Common Stock are now owned by the former holders of Zillow Class A common stock and the former holders of Trulia common stock, and shares of Company Class B common stock are now owned by the former holders of Zillow Class B common stock. The information set forth above in Item 2.01 is incorporated herein by reference.

 

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

In connection with the closing of the Mergers, each of Chad M. Cohen and Kathleen Philips, members of the Company’s board of directors (the “Board”) prior to the Mergers, tendered his or her resignation from the Board effective upon consummation of the Zillow merger.

In connection with the Mergers, the Board appointed as executive officers of the Company those individuals who were not yet officers of the Company. The names and ages of the executive officers of the Company after the Mergers and their respective positions are indicated below.

 

Name

  

Age

    

Position

Spencer M. Rascoff

     39       Chief Executive Officer

Richard N. Barton

     47       Executive Chairman

Lloyd D. Frink

     50       Vice Chairman, President

David A. Beitel

     45       Chief Technology Officer

Amy C. Bohutinsky

     40       Chief Marketing Officer

Chad M. Cohen

     40       Chief Financial Officer and Treasurer

Paul Levine

     44       President, Trulia, Inc.

Kathleen Philips

     48       Chief Operating Officer, Chief Legal Officer and Secretary

Errol G. Samuelson

     48       Chief Industry Development Officer

Greg M. Schwartz

     42       Chief Revenue Officer

Biographical information for each of the Company’s executive officers is set forth below.

Spencer M. Rascoff has served as Zillow’s Chief Executive Officer since September 2010 and has served as a member of Zillow’s board of directors since July 2011. Mr. Rascoff joined Zillow as one of its founding employees in 2005 as Vice President of Marketing and Chief Financial Officer and served as Zillow’s Chief Operating Officer from December 2008 until he was promoted to Chief Executive Officer. From 2003 to 2005, Mr. Rascoff served as Vice President of Lodging for Expedia, Inc. In 1999, Mr. Rascoff co-founded Hotwire, Inc., an online travel company, and managed several of Hotwire’s product lines before Hotwire was acquired in 2003 by IAC/InterActiveCorp, Expedia, Inc.’s parent company at the time. Mr. Rascoff served in the mergers and acquisitions group at Goldman, Sachs & Co., an investment banking and securities firm. Mr. Rascoff serves on the


board of directors of TripAdvisor, Inc., a publicly traded travel services company, zulily, inc., a publicly traded e-commerce company, and Julep Beauty, Inc., a privately held beauty products company. Mr. Rascoff also serves on the advisory board at Seattle Children’s Research Institute. Mr. Rascoff graduated cum laude with a B.A. in Government from Harvard University.

Richard N. Barton is Zillow’s co-founder and has served as its Executive Chairman since September 2010. Mr. Barton has been a member of Zillow’s board of directors since its inception in December 2004 and served as Zillow’s Chief Executive Officer from Zillow’s inception until September 2010. Mr. Barton has served as a venture partner at Benchmark Capital, a venture capital firm, since February 2005. Prior to co-founding Zillow, Mr. Barton founded Expedia as a group within Microsoft Corporation in 1994, which Microsoft spun out as Expedia, Inc. in 1999, and Mr. Barton served as Expedia’s President, Chief Executive Officer and as a member of its board of directors from 1999 to 2003. Mr. Barton also co-founded and has served as Non-Executive Chairman of Glassdoor.com, a salaries and reviews website for companies, since January 2008 and Trover, a mobile discovery network, since March 2010, and serves on the boards of directors of several other privately held companies. Mr. Barton also serves on the board of directors of Netflix, Inc. Mr. Barton holds a B.S. in General Engineering: Industrial Economics from Stanford University.

Lloyd D. Frink is Zillow’s co-founder and has served as its Vice Chairman since March 2011, as a member of its board of directors since its inception in December 2004, and as Zillow’s President since February 2005. Mr. Frink previously served as Zillow’s Vice President from December 2004 to February 2005, as its Treasurer from December 2009 to March 2011 and as its Chief Strategy Officer from September 2010 to March 2011. From 1999 to 2004, Mr. Frink was at Expedia, Inc., where he held many leadership positions, including Senior Vice President, Supplier Relations, in which position he managed the air, hotel, car, destination services, content, merchandising and partner marketing groups from 2003 to 2004. From 1988 to 1999, Mr. Frink was at Microsoft Corporation, where he worked in many leadership roles, including as part of the original Expedia team and as a Group Program Manager from 1991 to 1995 and 1997 to 1999. Mr. Frink serves on the board of directors of GrubHub Inc., an online and mobile food-ordering company. Mr. Frink holds an A.B. in Economics from Stanford University.

David A. Beitel has served as Zillow’s Chief Technology Officer since February 2005. From 1999 to 2005, Mr. Beitel was at Expedia, Inc., where he held many leadership positions, including Chief Technology Officer from 2003 to 2005 and Vice President of Product Development from 1999 to 2003. From 1992 to 1999, Mr. Beitel held many leadership positions at Microsoft Corporation, including Development Lead in the handheld computing group and as a member of the original Expedia team. Mr. Beitel holds a B.S. and an M.E. in Computer Science, both from Cornell University.

Amy C. Bohutinsky has served as Zillow’s Chief Marketing Officer since March 2011. Since joining Zillow in 2005, Ms. Bohutinsky has held many leadership positions, including Vice President of Marketing and Communications from September 2010 to March 2011, Vice President of Communications between August 2008 and September 2010, and Director of Communications between August 2005 and August 2008. From 2001 to 2005, Ms. Bohutinsky held many leadership positions at Hotwire, Inc., including Director of Corporate Communications. Ms. Bohutinsky previously worked for Blanc & Otus, a technology public relations firm, from 2000 to 2001 and was formerly a broadcast journalist with various local network affiliates. Ms. Bohutinsky serves on the board of directors of Avvo, Inc., a privately held online legal marketplace, and Hotel Tonight, Inc., a privately held mobile-based hotel booking service. Ms. Bohutinsky holds a B.A. in Journalism and Mass Communications from Washington & Lee University.

Chad M. Cohen has served as Zillow’s Chief Financial Officer and Treasurer since March 2011. Mr. Cohen served as Zillow’s Controller from June 2006 to March 2011 and as its Vice President of Finance from September 2010 to March 2011. Mr. Cohen served as Assistant Controller and Financial Integrity Manager for Ticketmaster Entertainment, Inc., a vendor of live event tickets, from 2003 to 2006. Mr. Cohen served as Vice President and Assistant Controller for Countrywide Financial Corporation, a mortgage lender, in 2002. Prior to Mr. Cohen’s employment at Countrywide, he served as Supervising Senior Auditor at Ernst & Young LLP, a provider of assurance, tax, transaction and advisory services, where he worked in their Technology, Communications and Entertainment practice between 1998 and 2002. Mr. Cohen worked as a Financial Planning Analyst for Novellus Systems, a provider of advanced process equipment for the semiconductor industry, from 1997 to 1998. Mr. Cohen holds a B.S. in Business Administration from Boston University and is licensed as a Certified Public Accountant in the State of California (inactive).


Paul Levine served as Trulia’s Chief Operating Officer since February 2011. Prior to joining Trulia, Mr. Levine served as President of Digital at Current Media LLC, a broadcast media company, from February 2009 to February 2011. Prior to Current Media, Mr. Levine was Vice President of Marketing at AdBrite, Inc., an online advertising network, from August 2007 to October 2008. Prior to AdBrite, Mr. Levine served as Vice President and General Manager of Local at Yahoo! Inc., from April 2003 to July 2007. Mr. Levine has also held management positions at E*TRADE Financial Services Corporation. Mr. Levine earned his B.A. from Amherst College and a Master of Business Administration degree from Stanford University.

Kathleen Philips has served as Zillow’s Chief Operating Officer since August 2013 and its Chief Legal Officer since September 2014, and served as Zillow’s General Counsel from July 2010 to September 2014. Ms. Philips served as General Counsel at FanSnap, Inc., a search engine for live event tickets, from June 2008 to June 2010, as General Counsel at Pure Digital Technologies, Inc., the producer of Flip Video camcorders, from September 2007 to June 2008, and as General Counsel at StubHub, Inc., an online live event ticket marketplace, from May 2005 to April 2006. Ms. Philips served as General Counsel at Hotwire, Inc. from 2001 to 2004 and as its Corporate Counsel from 2000 to 2001. Ms. Philips was an attorney in private practice at Cooley Godward LLP from 1998 to 2000 and at Stoel Rives LLP from 1997 to 1998. Ms. Philips holds a B.A. in Political Science from the University of California, Berkeley, and a J.D. from the University of Chicago.

Errol G. Samuelson has served as Chief Industry Development Officer of Zillow since March 2014. Prior to joining Zillow, Mr. Samuelson held various positions with Move, Inc., an online real estate company, and its owned and operated companies, including Chief Strategy Officer of Move, Inc. from April 2013 to March 2014, President of realtor.com ® , the real estate listing website of Move, Inc., from February 2007 to March 2014, Chief Revenue Officer of Move, Inc. from May 2009 until April 2013, and President of Top Producer, a software-as-a-service company of Move, Inc., from October 2003 to February 2007. Mr. Samuelson holds a B.A. Sc. in Electronics Engineering from Simon Fraser University.

Greg M. Schwartz has served as Zillow’s Chief Revenue Officer since September 2010. Prior to his promotion to Chief Revenue Officer, Mr. Schwartz served as Zillow’s Vice President of Sales from March 2007 to September 2010. Prior to joining Zillow, Mr. Schwartz was Vice President of Advertising Sales at CNNMoney.com, a financial media company, from July 2005 to March 2007. From August 2001 to July 2005, Mr. Schwartz served as National Accounts Director for the Automotive and Finance Properties of Yahoo!, Inc., an online search company. Mr. Schwartz held various positions at DoubleClick, Inc., an online advertising company, from 1998 to 2000, including Director of Business Development. Mr. Schwartz holds a B.A. in Political Science from Hamilton College.

At the effective time of the Zillow merger, and in accordance with the terms of the Merger Agreement, each of the following individuals was designated and elected to the Board, and the Board was divided into three classes as follows:

Class 1 (term expiring in 2015):

Erik Blachford

Spencer M. Rascoff

Gordon Stephenson

Class 2 (term expiring in 2016):

Richard N. Barton

Lloyd D. Frink

Greg Waldorf

Class 3 (term expiring in 2017):

J. William Gurley

Jay C. Hoag

Gregory B. Maffei

Peter Flint


The foregoing directors were elected into the classes set forth above by the sole shareholder of the Company, Zillow, by unanimous written consent in lieu of a meeting effective February 11, 2015, following the issuance of a share of Company Class A Common Stock to Zillow for a purchase price of $1 in a transaction exempt from registration under 4(a)(2) of the Securities Act (which share was cancelled upon the Zillow merger). In addition to the election of directors, Zillow also approved the indemnification provisions of the Company’s bylaws and the issuance of Class B common stock of the Company in the Merger.

In connection with the closing of the Mergers, the individuals identified below, who were members of the same committees at Zillow immediately prior to the closing of the Mergers, were designated and appointed to the Company’s Audit Committee, Compensation Committee and/or Nominating and Governance Committee, respectively, of the Board:

Audit Committee

Erik Blachford

J. William Gurley

Gregory B. Maffei (Chairman)

Compensation Committee

Erik Blachford

Jay C. Hoag (Chairman)

Gordon Stephenson

Nominating and Governance Committee

J. William Gurley (Chairman)

Gordon Stephenson

The nonemployee Board members named above will receive the standard compensation received by Zillow nonemployee directors, which consists of annual stock option grants pursuant to the stock option grant program for nonemployee directors that is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.

Pursuant to and in accordance with the Merger Agreement, the Company assumed all equity awards that were outstanding under the Zillow and Trulia equity plans immediately prior to the Mergers, and such awards were converted into awards to purchase or acquire, as applicable, Company Class A Common Stock. The number of shares and the per share exercise price of Trulia equity awards were adjusted such that each share of Trulia common stock under an award was converted into 0.444 of a share of Company Class A Common Stock with a corresponding adjustment to any exercise price applicable to an award. Each share of Class A common stock of Zillow under an award was converted into one share of Company Class A Common Stock with no adjustment required to any exercise price applicable to an award. The converted equity awards otherwise remain subject to the same terms, conditions and restrictions as the original equity awards. In connection with the Mergers, the Company assumed the Zillow, Inc. Amended and Restated 2011 Incentive Plan, as amended, and the Trulia, Inc. 2012 Equity Incentive Plan, as amended and restated, for purposes of future grants, with the number and type of shares issuable thereunder to be appropriately adjusted to reflect the Mergers, in accordance with applicable NASDAQ exchange listing requirements. The Zillow, Inc. Amended and Restated 2011 Incentive Plan and Amendment No. 1 thereto, the Zillow, Inc. Amended and Restated 2005 Equity Incentive Plan, the Trulia, Inc. 2012 Equity Incentive Plan, as amended and restated, the Trulia, Inc. 2005 Stock Incentive Plan, as amended, and the Market Leader, Inc. Amended and Restated 2004 Equity Incentive Plan are filed as Exhibits 10.2 through 10.7, respectively, to this Current Report on Form 8-K and incorporated herein by reference.

On February 17, 2015, the Company entered into an employment agreement (the “Levine Employment Agreement”) with Paul Levine, President of Trulia, which includes the following terms:

 

    Annual base salary of $400,000, subject to adjustment by the Board or the Compensation Committee.


    Subject to Board or Compensation Committee approval, two stock options to purchase shares of Company Class A Common Stock. One option is for the purchase of 50,000 shares that will vest over a total of seven years, subject to Mr. Levine’s continued employment through the applicable vesting date, and will have a maximum term of ten years. The second option will be for that number of shares equal to $1,333,333 divided by the closing price of Company Class A Common Stock on the later of the grant date and the first day of trading of such stock (the first day of trading is referred to as the “Initial Close Price”), will vest over four years, subject to Mr. Levine’s continued employment, and will have a maximum term of seven years.

 

    Subject to Board or Compensation Committee approval, two grants of restricted stock units (“RSUs”), each of which will vest over a total of four years, subject to Mr. Levine’s continued employment through the applicable vesting date. One grant of RSUs will be for that number of shares of Company Class A Common Stock equal to $2,100,000 divided by the Initial Close Price, and the second grant of RSUs will be for that number of shares of Company Class A Common Stock equal to $1,333,333 divided by the Initial Close Price.

 

    Continued participation in Trulia’s employee benefit programs through at least December 31, 2015, and eligibility to participate in the Company’s benefit programs thereafter.

 

    Accelerated vesting of equity awards granted by the Company that vest based on continued employment with respect to (i) 50% of then unvested equity awards if Mr. Levine’s employment is terminated by the Company without cause (as defined in the Levine Employment Agreement) or if he resigns for good reason (as defined in the Levine Employment Agreement) in connection with or within 12 months after a change of control (as defined in the Levine Employment Agreement) and (ii) 12 months of accelerated vesting in the event Mr. Levine’s employment is terminated without cause or Mr. Levine resigns for good reason other than in connection with a change in control. In such events, he is also entitled to six months’ severance pay.

A copy of the Levine Employment Agreement is filed as Exhibit 10.8 to this Current Report on Form 8-K and is incorporated herein by reference. The description of the Levine Employment Agreement does not purport to be a complete description and is qualified in its entirety by reference to the full text of the Levine Employment Agreement.

In connection with their appointments as directors and executive officers, the Company is entering into indemnification agreements providing for contractual rights to indemnification, expense advancement and reimbursement to the fullest extent permitted by the Washington Business Corporation Law with each member of the Company’s Board and the Company’s executive officers, substantially in the form filed as Exhibit 10.9 to this Current Report on Form 8-K and incorporated herein by reference.


Item 5.07 Submission of Matters to a Vote of Security Holders.

The information set forth in Item 5.02 with respect to the election of directors and other matters approved by the sole shareholder of the Company prior to the Mergers is hereby incorporated by reference.

 

Item 9.01 Financial Statements and Exhibits.

(a) Financial Statements of Business Acquired.

To be filed by amendment not later than 71 calendar days after the date this Current Report is required to be filed.

(b) Pro Forma Financial Information.

To be filed by amendment not later than 71 calendar days after the date this Current Report is required to be filed.

(d) Exhibits.

 

Exhibit

Number

  

Description

  2.1    Agreement and Plan of Merger dated as of July 28, 2014 by and among Zillow, Inc., Zillow Group, Inc., f/k/a Zebra Holdco, Inc., and Trulia, Inc. (incorporated by reference to Exhibit 2.1 to Zillow, Inc.’s Current Report on Form 8-K filed with the SEC on July 29, 2014 (File No. 001-35237)).†
  4.1    Indenture, dated as of December 17, 2013, between Trulia, Inc. and Wells Fargo Bank, National Association, as trustee (incorporated by reference to Exhibit 4.1 to Trulia, Inc.’s Current Report on Form 8-K filed with the SEC on December 17, 2013 (File No. 001-35650)).
  4.2    Supplemental Indenture, dated as of February 17, 2015, among Zillow Group, Inc., Trulia, Inc. and Wells Fargo Bank, National Association, as trustee.
10.1*    Stock Option Grant Program for Nonemployee Directors under the Zillow, Inc. 2011 Incentive Plan (incorporated by reference to Exhibit 10.19 to Zillow, Inc.’s Annual Report on Form 10-K filed with the SEC on February 18, 2014 (File No. 001-35237)).


Exhibit

Number

  

Description

10.2*    Zillow, Inc. Amended and Restated 2011 Incentive Plan (incorporated by reference to Appendix A to Zillow, Inc.’s Definitive Proxy Statement on Schedule 14A filed with the SEC on April 17, 2012 (File No. 001-35237)).
10.3*    Amendment No. 1 to the Zillow, Inc. Amended and Restated 2011 Incentive Plan (incorporated by reference to Appendix A to Zillow, Inc.’s Definitive Proxy Statement on Schedule 14A filed with the SEC on April 16, 2013 (File No. 001-35237)).
10.4*    Zillow, Inc. Amended and Restated 2005 Equity Incentive Plan (incorporated by reference to Exhibit 10.5 to Zillow, Inc.’s Amendment No. 3 to the Registration Statement on Form S-1 filed with the SEC on June 20, 2011 (File No. 001-173570)).
10.5*    Trulia, Inc. 2012 Equity Incentive Plan, as amended and restated (incorporated by reference to Exhibit 10.1 to Trulia, Inc.’s Form 10-Q filed with the SEC on August 12, 2013 (File No. 001-35650)).
10.6*    Trulia, Inc. 2005 Stock Incentive Plan, as amended (incorporated by reference to Exhibit 10.2 to Trulia, Inc.’s Registration Statement on Form S-1 filed with the SEC on August 17, 2012 (File No. 333-183364)).
10.7*    Market Leader, Inc. Amended and Restated 2004 Equity Incentive Plan (incorporated by reference to Appendix A to Market Leader, Inc.’s Definitive Proxy Statement on Schedule 14A filed with the SEC on April 10, 2009 (File No. 000-51032)).
10.8*    Executive Employment Agreement, dated February 17, 2015, between Paul Levine and Zillow Group, Inc.
10.9*    Form of Indemnification Agreement between Zillow Group, Inc. and each of its directors and executive officers.

 

* Indicates a management contract or compensatory plan or arrangement.
Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. Zillow Group, Inc. hereby undertakes to furnish supplementally copies of any of the omitted schedules upon request by the SEC; provided, however, that Zillow Group, Inc. may request confidential treatment pursuant to Rule 24b-2 of the Exchange Act for any schedule so furnished.

Forward-Looking Statements

This communication contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934 that involve risks and uncertainties, including, without limitation, statements regarding the costs of Trulia’s restructuring plan. Statements containing words such as “may,” “believe,” “anticipate,” “expect,” “intend,” “plan,” “project,” “will,” “projections,” “estimate,” or similar expressions constitute forward-looking statements. Such forward-looking statements are subject to significant risks and uncertainties and actual results may differ materially from the results anticipated in the forward-looking statements. Factors that may contribute to such differences include, but are not limited to, the Company’s ability to successfully integrate and realize the benefits of past or future strategic acquisitions or investments, including the acquisition of Trulia, Inc.; the Company’s ability to maintain and effectively manage an adequate rate of growth; its ability to maintain or establish relationships with listings and data providers; the impact of the real estate industry on the Company’s business; the Company’s ability to innovate and provide products and services that are attractive to its users and advertisers; its ability to increase awareness of the Company’s brands; its ability to attract consumers to the Company’s mobile applications and websites; the Company’s ability to compete successfully against existing or future competitors; the reliable performance of its network infrastructure and content delivery processes; and its ability to protect its intellectual property. The foregoing list of risks and uncertainties is illustrative, but is not exhaustive. Additional factors that could cause results to differ materially from those anticipated in forward-looking statements can be found under the caption “Risk Factors” in Zillow’s Annual Report on Form 10-K for the annual period ended December 31, 2014, under the caption “Risk Factors” in the Joint Proxy Statement/Prospectus, and in the Company’s other filings with the SEC. Except as may be required by law, the Company does not intend, nor undertake any duty, to update this information to reflect future events or circumstances.


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

Dated: February 17, 2015       ZILLOW GROUP, INC.
    By:  

/s/ Spencer M. Rascoff

    Name:   Spencer M. Rascoff
    Title:   Chief Executive Officer


EXHIBIT INDEX

 

Exhibit

Number

  

Description

  2.1    Agreement and Plan of Merger dated as of July 28, 2014 by and among Zillow, Inc., Zillow Group, Inc., f/k/a Zebra Holdco, Inc., and Trulia, Inc. (incorporated by reference to Exhibit 2.1 to Zillow, Inc.’s Current Report on Form 8-K filed with the SEC on July 29, 2014 (File No. 001-35237)). †
  4.1    Indenture, dated as of December 17, 2013, between Trulia, Inc. and Wells Fargo Bank, National Association, as trustee (incorporated by reference to Exhibit 4.1 to Trulia, Inc.’s Current Report on Form 8-K filed with the SEC on December 17, 2013 (File No. 001-35650)).
  4.2    Supplemental Indenture, dated as of February 17, 2015, among Zillow Group, Inc., Trulia, Inc. and Wells Fargo Bank, National Association, as trustee.
10.1*    Stock Option Grant Program for Nonemployee Directors under the Zillow, Inc. 2011 Incentive Plan (incorporated by reference to Exhibit 10.19 to Zillow, Inc.’s Annual Report on Form 10-K filed with the SEC on February 18, 2014 (File No. 001-35237)).
10.2*    Zillow, Inc. Amended and Restated 2011 Incentive Plan (incorporated by reference to Appendix A to Zillow, Inc.’s Definitive Proxy Statement on Schedule 14A filed with the SEC on April 17, 2012 (File No. 001-35237)).
10.3*    Amendment No. 1 to the Zillow, Inc. Amended and Restated 2011 Incentive Plan (incorporated by reference to Appendix A to Zillow, Inc.’s Definitive Proxy Statement on Schedule 14A filed with the SEC on April 16, 2013 (File No. 001-35237)).
10.4*    Zillow, Inc. Amended and Restated 2005 Equity Incentive Plan (incorporated by reference to Exhibit 10.5 to Zillow, Inc.’s Amendment No. 3 to the Registration Statement on Form S-1 filed with the SEC on June 20, 2011 (File No. 001-173570)).
10.5*    Trulia, Inc. 2012 Equity Incentive Plan, as amended and restated (incorporated by reference to Exhibit 10.1 to Trulia, Inc.’s Form 10-Q filed with the SEC on August 12, 2013 (File No. 001-35650)).
10.6*    Trulia, Inc. 2005 Stock Incentive Plan, as amended (incorporated by reference to Exhibit 10.2 to Trulia, Inc.’s Registration Statement on Form S-1 filed with the SEC on August 17, 2012 (File No. 333-183364)).
10.7*    Market Leader, Inc. Amended and Restated 2004 Equity Incentive Plan (incorporated by reference to Appendix A to Market Leader, Inc.’s Definitive Proxy Statement on Schedule 14A filed with the SEC on April 10, 2009 (File No. 000-51032)).
10.8*    Executive Employment Agreement, dated February 17, 2015, between Paul Levine and Zillow Group, Inc.
10.9*    Form of Indemnification Agreement between Zillow Group, Inc. and each of its directors and executive officers.

 

* Indicates a management contract or compensatory plan or arrangement.
Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. Zillow Group, Inc. hereby undertakes to furnish supplementally copies of any of the omitted schedules upon request by the SEC; provided, however, that Zillow Group, Inc. may request confidential treatment pursuant to Rule 24b-2 of the Exchange Act for any schedule so furnished.

Exhibit 4.2

FIRST SUPPLEMENTAL INDENTURE

FIRST SUPPLEMENTAL INDENTURE (this “ Supplemental Indenture ”), dated as of February 17, 2015, among Trulia, Inc., a Delaware corporation (the “ Company ”), Zillow Group, Inc., f/k/a Zebra Holdco, Inc., a Washington corporation (“ Zillow Group ”), and Wells Fargo Bank, National Association, a national banking association, as trustee under the Indenture referred to below (the “ Trustee ”).

W I T N E S S E T H

WHEREAS, the Company and the Trustee are parties to an Indenture, dated as of December 17, 2013 (the “ Indenture ”), pursuant to which the Company issued its 2.75% Convertible Senior Notes due 2020 (the “ Notes ”);

WHEREAS, the Company entered into the Agreement and Plan of Merger, dated as of July 28, 2014 (the “ Merger Agreement ”) by and among Zillow, Inc. (“ Zillow ”), Zillow Group and the Company;

WHEREAS, pursuant to the Merger Agreement and subject to the terms and conditions therein, a wholly owned subsidiary of Zillow Group will merge with and into the Company (the “ Merger ”) and the Company will continue as the surviving corporation in the Merger and a wholly owned subsidiary of Zillow Group;

WHEREAS, pursuant to the Merger Agreement and subject to the terms and conditions therein, at the effective time of the Merger, each share of common stock, par value $0.00001 per share, of the Company (the “ Tulia Common Stock ”) issued and outstanding immediately prior to the effective time of the Merger (other than the shares of Trulia Common Stock held by the Company, Zillow Group, Zillow, or any direct or indirect wholly owned subsidiary of Zillow or the Company) will be converted into the right to receive 0.444 of a share of Class A Common Stock, par value $0.0001 per share, of Zillow Group (the “ Zillow Group Class A Common Stock ”);

WHEREAS, Section 14.07(a) of the Indenture provides that upon the occurrence of any Merger Event, then the successor or purchasing person shall enter into a supplemental indenture with the Trustee to provide that the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Trulia Common Stock equal to the Conversion Rate immediately prior to any such Merger Event would have owned or been entitled to receive upon such Merger Event;

WHEREAS, Zillow Group desires to fully and unconditionally guarantee all of the payment obligations of the Company under the Notes and the Indenture so as to make available the exemption from the registration requirements of the Securities Act of 1933, as amended (the “ Act ”), provided by Section 3(a)(9) of the Act for shares of Zillow Group Class A Common Stock delivered upon conversion of the Notes following the Merger;


WHEREAS, pursuant to Section 10.01 of the Indenture, the Company and the Trustee may enter into indentures supplemental to the Indenture for the purpose of, among other things, (i) adding guarantees with respect to the Notes, (ii) making any change that does not adversely affect the rights of any Holder, or (iii) in connection with any Merger Event, providing that the Notes are convertible into Reference Property, subject to the provisions of Section 14.02, and make such related changes to the terms of the Notes to the extent expressly required or permitted by Article 14;

WHEREAS, in connection with the execution and delivery of this Supplemental Indenture, the Trustee has received an Officer’s Certificate and an Opinion of Counsel as contemplated by Sections 10.05, 11.03 and 14.07(b) of the Indenture; and

WHEREAS, the Company and Zillow Group have requested that the Trustee execute and deliver this Supplemental Indenture and have satisfied all requirements necessary to make this Supplemental Indenture a valid instrument in accordance with its terms.

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company, Zillow Group and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders as follows:

ARTICLE 1

DEFINITIONS

Section 1.1 Definitions in the Supplemental Indenture . A term defined in the Indenture has the same meaning when used in this Supplemental Indenture unless such term is otherwise defined herein or amended or supplemented pursuant to this Supplemental Indenture. The words “herein,” “hereof,” “hereunder,” and words of similar import refer to this Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision. The terms defined in this Article include the plural as well as the singular.

ARTICLE 2

EFFECT OF MERGER ON CONVERSION RIGHT

Section 2.1 Conversion Right. The Company and Zillow Group expressly agree that, in accordance with Section 14.07 of the Indenture, at and after the effective time of the Merger, the Holder of each Note that was outstanding as of the effective time of the Merger shall have the right to convert each $1,000 principal amount of such Note into the number of shares of Zillow Group Class A Common Stock that a Holder of a number of shares of Trulia Common Stock equal to the Conversion Rate immediately prior to the effective time of the Merger would have been entitled to receive upon the Merger. For purposes of this Supplemental Indenture, “Reference Property” and “unit of Reference Property,” as defined in the Indenture, means Zillow Group Class A Common stock and 0.444 shares of Zillow Group Class A Common Stock, respectively. Upon the consummation of the Merger, references to “Common Stock” in the Indenture shall be deemed to refer to the Reference Property and references to “shares of Common Stock” in the Indenture shall be deemed to refer to units of Reference Property.


ARTICLE 3

ZILLOW GROUP GUARANTEE

Section 3.1 Guarantee . Zillow Group (the “ Guarantor ”) hereby unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, this Supplemental Indenture, the Notes or the obligations of the Company hereunder or thereunder, that:

(a) the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, each of the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption, conversion or otherwise, and interest on the overdue principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of and accrued and unpaid interest on, each of the Notes, if lawful, and all other obligations of the Company to the Holder or the Trustee under the Indenture, this Supplemental Indenture and the Notes will be promptly paid or performed in full when due, whether at maturity, by acceleration, redemption, conversion or otherwise; and

(b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise (collectively, such guarantee, the “ Note Guarantee ”).

Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantor will be obligated to pay or perform the same immediately. The Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.

The Guarantor hereby agrees that its obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance that might otherwise constitute a legal or equitable discharge or defense of a guarantor. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that this Note Guarantee will not be discharged except by complete performance of the obligations contained in the Notes or the Indenture.

If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantor, any amount paid by either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.


The Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. The Guarantor further agrees that, as between the Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 of the Indenture for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 of the Indenture, such obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purpose of this Note Guarantee.

Section 3.2 Limitation on Guarantor Liability. The Guarantor, and by its acceptance of this Note Guarantee, each Holder, hereby confirms that it is the intention of all such parties that this Note Guarantee of the Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to this Note Guarantee.

Section 3.3 Execution. To evidence the Note Guarantee set forth in Section 3.01 hereof, this Supplemental Indenture will be executed on behalf of the Guarantor by one of its Officers.

The Guarantor hereby agrees that the Note Guarantee set forth in Section 3.01 hereof will remain in full force and effect notwithstanding any failure to endorse on each Note a notation of the Note Guarantee.

If an Officer whose signature is on this Supplemental Indenture no longer holds that office at the time the Trustee authenticates the Note on which the Note Guarantee is endorsed, the Note Guarantee will be valid nevertheless.

The delivery of any Note by the Trustee, after the authentication thereof hereunder, will constitute due delivery of the Note Guarantee set forth in this Supplemental Indenture on behalf of the Guarantor.

Section 3.4 Releases . Upon the satisfaction and discharge of the Indenture in accordance with Article 3 of the Indenture, the Guarantor will be released and relieved of any obligations under the Note Guarantee.

ARTICLE 4

MISCELLANEOUS

Section 4.1 Ratification of Indenture . The Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified and confirmed, and this Supplemental Indenture shall be deemed part of the Indenture in the manner and to the extent herein and therein provided.

Section 4.2 Governing Law . THIS SUPPLEMENTAL INDENTURE, THE NOTE GUARANTEE AND THE NOTES, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE AND EACH NOTE, SHALL BE


GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

Section 4.3 Counterparts . This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.

[ Remainder of page intentionally left blank ]


IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.

 

TRULIA, INC.
By:   /s/ Peter Flint
Name: Peter Flint
Title: Chief Executive Officer
ZILLOW GROUP, INC.
By:   /s/ Chad M. Cohen
Name: Chad M. Cohen
Title: Chief Financial Officer

WELLS FARGO BANK, NATIONAL

ASSOCIATION, as Trustee

By:   /s/ Michael Tu
Name: Michael Tu
Title: Assistant Vice President

Exhibit 10.8

EXECUTIVE EMPLOYMENT AGREEMENT

This Executive Employment Agreement (“ Agreement ”) is entered into as of February 17, 2015, by and between Paul Levine (“ Executive ”) and Zillow Group, Inc., a Washington corporation (the “ Company ”), to become effective as of the Effective Date (as defined in Appendix A ). As of the Effective Date, this Agreement shall supersede and replace in its entirety the employment offer letter with Trulia, Inc. (“ Trulia ”), previously entered into by Executive and Trulia in connection with Executive’s commencement of employment with Trulia in February 2011.

Certain capitalized terms in this Agreement have the meanings set forth in Appendix A , attached to this Agreement, which is incorporated into this Agreement in its entirety.

 

1. EMPLOYMENT

The Company agrees to employ Executive, and Executive agrees to accept employment by the Company as President of Trulia, a subsidiary of the Company, and report to the Company’s Chief Executive Officer. Subject to Sections 3.3 and 3.4, changes may be made from time to time by the Company in its sole discretion to the duties, reporting relationships and title of Executive. Executive will perform the duties as are commensurate and consistent with Executive’s position and will devote Executive’s full working time, attention and efforts to the Company and to discharging the responsibilities of Executive’s position, and such other duties as may be assigned from time to time by the Company, which relate to the business of the Company and are reasonably consistent with Executive’s position. During Executive’s employment, Executive will not engage in any business activity that, in the reasonable judgment of the Chief Executive Officer, conflicts with the duties of Executive under this Agreement, whether or not


such activity is pursued for gain, profit or other advantage. Executive agrees to comply with the Company’s standard policies and procedures, including the Company’s Confidential Information, Inventions, Nonsolicitation and Noncompetititon Agreement, to be executed by Executive contemporaneously with Executive’s execution of this Agreement, and with all applicable laws and regulations.

 

2. COMPENSATION AND BENEFITS

The Company agrees to pay or cause to be paid to Executive and Executive agrees to accept in exchange for the services rendered hereunder the following compensation and benefits:

 

  2.1 Annual Salary

Executive’s compensation shall consist of an annual base salary (the “ Salary ”) of $400,000, payable in semi-monthly installments in accordance with the payroll practices of the Company. The Salary shall be reviewed, and shall be subject to change, by the Board of Directors (or the Compensation Committee thereof) at least annually while Executive is employed hereunder.

 

  2.2 Equity Awards

Subject to approval by the Board of Directors (or the Compensation Committee thereof), Executive shall be eligible to receive the following equity awards (the “ Awards ”) under the Trulia, Inc. 2012 Equity Incentive Plan (as assumed by the Company):

(a) Nonqualified stock option for fifty thousand (50,000) shares of the Company’s Class A Common Stock (the “ Option ”), such Option to have a ten (10)-year term (subject to

 

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earlier termination in the event of Executive’s termination of employment or service), to have a per share exercise price equal to the closing price of the Company’s Class A Common Stock on the date of grant (provided that if there is no closing price yet on such date, on the first trading date of the Company’s Class A Common Stock), and to vest in accordance with the following schedule: 1/16th of the total number of shares subject to the Option shall vest on the one (1)-year anniversary of the Effective Date and an additional 1/192 shall vest each month thereafter over the next three (3) years; an additional 1/16th of the total number of shares subject to the Option shall vest on the two (2)-year anniversary of the Effective Date and an additional 1/192 shall vest each month thereafter over the next three (3) years; an additional 1/16th of the total number of shares subject to the Option shall vest on the three (3)-year anniversary of the Effective Date and an additional 1/192 shall vest each month thereafter over the next three (3) years; and additional 1/16th of the total number of shares subject to the Option shall vest on the four (4)-year anniversary of the Effective Date and an additional 1/192 shall vest each month thereafter after the next three (3) years until the Option is fully vested.

(b) Restricted Stock Units for that number of shares of the Company’s Class A Common Stock calculated by dividing $2,100,000 by the closing price of the Company’s Class A Common Stock on the first trading day after the Effective Date (“ Initial RSUs ”), such Initial RSUs to vest and be settled in one (1) share of Class A Common Stock for each share subject to the Initial RSUs in accordance with the following vesting schedule: 1/4th of the total number of Initial RSUs shall vest on the one (1)-year anniversary of the Effective Date, and an additional 1/16th of the Initial RSUs shall vest quarterly thereafter over the next three (3) years.

(c) Restricted Stock Units (“ Additional RSUs ”) for that number of shares of the Company’s Class A Common Stock calculated by dividing $1,333,333 by the closing price of

 

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the Company’s Class A Common Stock on the first trading day after the Effective Date (“ Additional RSUs ”), such Additional RSUs to vest and be settled in one share of Class A Common Stock for each share subject to the Additional RSUs in accordance with the following vesting schedule: 1/8th of the total number of Additional RSUs shall vest six (6) months from the Effective Date, and an additional 1/16th of the Additional RSUs shall vest quarterly thereafter over the next forty-two (42) months.

(d) Nonqualified stock option for the same number of shares of the Company’s Class A Common Stock determined with respect to the Additional RSUs set forth in Section 2.2(c) (the “ Additional Option ”), such Additional Option to have a seven (7)-year term (subject to earlier termination in the event of Executive’s termination of employment or service), to have a per share exercise price equal to the closing price of the Company’s Class A Common Stock on the date of grant (provided that if there is no closing price yet on such date, on the first trading date of the Company’s Class A Common Stock), and to vest in accordance with the same vesting schedule applicable to the Additional RSUs.

(e) Vesting of the Awards shall be subject to Executive’s continued employment or service to the Company on an applicable vesting date. Awards shall be subject to applicable payroll taxes and withholding upon vesting or exercise of the Awards, as applicable, and shall be subject to the terms and conditions of individual agreements evidencing the Awards and the equity plan under which the Awards are granted.

 

  2.3 Benefits; Assumed Equity Awards

Through at least December 31, 2015, Executive shall be eligible to participate, subject to and in accordance with applicable eligibility requirements, in such Trulia employee benefit

 

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plans, policies, programs and arrangements as are generally provided to Trulia’s similarly situated employees. Effective January 1, 2016, or such later date designated by the Company, the Company may convert Executive’s benefits to those generally available to the Company’s other similarly situated executives, which shall include, at a minimum, basic health, dental and vision insurance. Further, all equity awards originally granted to Executive by Trulia and assumed by the Company pursuant to the terms of the Merger Agreement shall remain subject to the same terms and conditions as applicable to such equity awards prior to the Mergers, including with respect to vesting and acceleration terms, except for adjustments to such equity awards to reflect the terms of the Trulia Exchange Ratio (as defined in the Merger Agreement).

 

  2.4 Vacation and Other Paid Time Off Benefits

Through at least December 31, 2015, Executive shall be entitled to such holidays and sick leave and that number of weeks of paid vacation per year equal to those provided to similarly situated executives of Trulia, in accordance with the plans, policies, programs and arrangements of Trulia applicable to similarly situated executives of Trulia generally. Effective January 1, 2016, or such later date designated by the Company, the Company may transfer Executive to the Company’s holiday, sick leave and vacation plans and programs generally available to other similarly situated executives of the Company; provided that Company shall provide Executive with service credit for his period of employment with Trulia for purposes of sick leave and vacation accrual under the Company’s plans and programs.

 

  2.5 Acknowledgement by Executive

Executive acknowledges and agrees that the compensation and benefits provided under this Agreement do not represent a reduction of compensation and benefits that would

 

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(a) constitute “Good Reason” for terminating Executive’s employment or (b) trigger any other right or remedy under the terms of Executive’s previous employment arrangement with Trulia, which is replaced by this Agreement.

 

3. TERMINATION

 

  3.1 Employment At Will

Executive acknowledges and understands that employment with the Company is terminable at will and can be terminated by either party for no reason or for any reason not otherwise specifically prohibited by law. Nothing in this Agreement is intended to alter Executive’s at-will employment status or obligate the Company to continue to employ Executive for any specific period of time, or in any specific role or geographic location. Except as expressly provided for in this Agreement, upon any termination of employment, Executive shall not be entitled to receive any payments or benefits under this Agreement other than unpaid Salary earned through the date of termination and unused vacation that has accrued as of the date of Executive’s termination of employment that would be payable under the Company’s standard policy.

 

  3.2 Automatic Termination on Death or Total Disability

This Agreement and Executive’s employment hereunder shall terminate automatically upon the death or Total Disability of Executive. “ Total Disability ” shall mean Executive’s inability, with or without reasonable accommodation, to perform the duties of Executive’s position for a period or periods aggregating ninety (90) days in any period of one hundred eighty (180) consecutive days as a result of physical or mental illness, loss of legal capacity or any other

 

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cause beyond Executive’s control. Executive and the Company hereby acknowledge that Executive’s ability to perform Executive’s duties is the essence of this Agreement. Termination hereunder shall be deemed to be effective (a) at the end of the calendar month in which Executive’s death occurs or (b) immediately upon a determination by the Board of Directors (or the Compensation Committee thereof) of Executive’s Total Disability. In the case of termination of employment under this Section 3.2, Executive shall not be entitled to receive any payments or benefits under this Agreement other than unpaid Salary earned through the date of termination and unused vacation that has accrued as of the date of Executive’s termination of employment that would be payable under the Company’s standard policy.

 

  3.3 Termination of Employment Without Cause or for Good Reason, Other Than in Connection with a Change of Control

(a) If (1) the Company terminates Executive’s employment without Cause (as defined in Appendix A ), or (2) Executive resigns for Good Reason (as defined in Appendix A ), then Executive shall be entitled to receive the following termination payments and benefits; provided, however, that this Section 3.3 shall not apply to, and shall have no effect in connection with, any termination to which Section 3.2 or Section 3.4 of this Agreement applies:

(i) an amount equal to six (6) months’ Salary, at the rate in effect immediately prior to termination, payable to Executive in accordance with the terms below (“Severance Payments”);

(ii) unpaid Salary earned through the date of termination and unused vacation that has accrued and would be payable under the Company’s standard policy (collectively, the “Accrued Obligations”), payable in a lump sum on the next regularly scheduled payroll date following the date on which Executive’s employment terminated;

 

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(iii) COBRA continuation coverage paid in full by the Company, so long as Executive has not become actually covered by the medical plan of a subsequent employer during any such month and is otherwise entitled to COBRA continuation coverage, with such payments for up to a maximum of six (6) months following the date of termination. After such period, Executive is responsible for paying the full cost for any additional COBRA continuation coverage to which Executive is then entitled; and

(iv) an extension of the time period during which Executive may exercise Executive’s then outstanding stock options granted by the Company on or after the Effective Date, to the extent vested on the date of termination (taking into account the accelerated vesting provided in this Section 3.3 (a)), until the earlier of (A) one (1) year from the date of termination and (B) the latest date upon which such stock options would have expired by their original terms under any circumstances.

(v) accelerated vesting by an additional twelve (12) months of Executive’s then unvested Initial RSUs, Additional RSUs, stock options and any other equity awards that vest based on continued employment or service that are granted by the Company on or after the Effective Date.

(b) As a condition to receiving the payments and benefits under this Section 3.3 other than the Accrued Obligations, Executive shall execute (and not revoke within the applicable revocation period) a general release and waiver of all claims against the Company, which release and waiver shall be in a form acceptable to the Company, and in substantially the form attached hereto as Appendix B . Such release and waiver shall be delivered to the Company no later than the date specified by the Company (which date shall in no event be later than twenty-one (21) days or forty-five (45) days, as applicable, after the date on which Executive is presented with the terms of the release and waiver). In addition, payment of the amounts and benefits under this Section 3.3 are contingent on Executive’s full and continued compliance with the Company’s Confidential Information, Inventions, Nonsolicitation and Noncompetition Agreement, as the same may be amended from time to time.

 

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(c) Notwithstanding the foregoing, termination of employment by Executive will not be for Good Reason unless (1) Executive notifies the Company in writing of the existence of the condition which Executive believes constitutes Good Reason within thirty (30) days of the initial existence of such condition (which notice specifically identifies such condition), (2) the Company fails to remedy such condition within thirty (30) days after the date on which it receives such notice (the “ Remedial Period ”), and (3) Executive actually terminates employment within thirty (30) days after the expiration of the Remedial Period and before the Company remedies such condition. If Executive terminates employment before the expiration of the Remedial Period or after the Company remedies the condition (even if after the end of the Remedial Period), then Executive’s termination will not be considered to be for Good Reason.

(d) Subject to Section 3.3(b), Severance Payments under Section 3.3(a)(i) shall be paid to Executive through the Company’s normally scheduled payroll during the six (6) month period commencing within sixty (60) days following the date on which Executive’s employment was terminated without Cause or Executive resigned for Good Reason; provided, however, that in the event such sixty (60) day period begins in one taxable year of Executive and ends in a second taxable year of Executive, the Company shall not make any Severance Payments to Executive until the second taxable year. Each such payment shall be treated as a separate payment for purposes of Section 409A of the Internal Revenue Code of 1986, as amended (the “ Code ”), including the rules and regulations thereunder (“ Code Section 409A ”). Notwithstanding the foregoing, if any payments and benefits payable pursuant to Section 3.3(a) constitute a “deferral of compensation” subject to Code Section 409A (after taking into account, to the maximum extent possible, any applicable exemptions), then the applicable provisions of Section 13 hereof shall apply.

 

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  3.4 Termination of Employment in Connection with a Change of Control

 

  3.4.1 Benefits for Qualified Terminations in Connection with a Change of Control

(a) If (1) during the period commencing on the date the Company enters into a definitive agreement with respect to a transaction that would constitute a Change of Control (as defined in Appendix A ) and ending on the date the definitive agreement therefor is terminated or the Change of Control is consummated, the Company terminates Executive’s employment without Cause (as defined in Appendix A ), (2) during the period commencing upon the consummation of the Change of Control and ending twelve (12) months thereafter, the Company or, if applicable, the surviving or successor employer (“ Successor Employer ”) terminates Executive’s employment without Cause (as defined in Appendix A ), or (3) during the period commencing upon the consummation of the Change of Control and ending twelve (12) months thereafter, Executive resigns for Good Reason (as defined in Appendix A ), then Executive shall be entitled to receive the following:

(i) an amount equal to six (6) months’ Salary, at the rate in effect immediately prior to termination, payable to Executive in accordance with the terms below;

(ii) Accrued Obligations, payable in a lump sum on the next regularly scheduled payroll date following the date on which Executive’s employment terminated;

(iii) COBRA continuation coverage paid in full by the Company, so long as Executive has not become actually covered by the medical plan of a subsequent employer during any such month and is otherwise entitled to COBRA continuation coverage, with such payments for up to a maximum of six (6) months following the date of termination. After such period, Executive is responsible for paying the full cost for any additional COBRA continuation coverage to which Executive is then entitled; and

(iv) an extension of the time period during which Executive may exercise Executive’s then outstanding stock options granted by the Company on or after the Effective Date, to the extent vested on the date of termination (taking into account the

 

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accelerated vesting provided in this Section 3.4(a)), until the earlier of (A) one (1) year from the date of termination and (B) the latest date upon which such stock options would have expired by their original terms under any circumstances; and

(v) accelerated vesting of fifty percent (50%) of Executive’s (A) then unvested stock options to purchase securities of the Company or options to purchase comparable securities of a Successor Employer issued in substitution or replacement therefor in connection with the Change of Control and (B) any other then outstanding equity-based awards that vest based on continued employment or service, in each case such acceleration limited to those equity awards that were granted by the Company or a Successor Employer on or after the Effective Date.

(b) As a condition to receiving the benefits under this Section 3.4.1 other than the Accrued Obligations, Executive shall execute (and not revoke within the applicable revocation period) a general release and waiver of all claims against the Company, which release and waiver shall be in a form acceptable to the Company (including any Successor Employer thereto), and in substantially the form attached hereto as Appendix B . Such release and waiver shall be delivered to the Company (or any Successor Employer thereto) no later than the date specified by the Company (or any Successor Employer thereto) (which date shall in no event be later than twenty-one (21) days or forty-five (45) days, as applicable, after the date on which Executive is presented with the terms of the release and waiver). In addition, payment of the amounts and benefits under this Section 3.4.1 are contingent on Executive’s full and continued compliance with the Company’s Confidential Information, Inventions, Nonsolicitation and Noncompetition Agreement, as the same may be amended from time to time.

(c) Notwithstanding the foregoing, termination of employment by Executive will not be for Good Reason unless (1) Executive notifies the Company (or a Successor Employer thereto) in writing of the existence of the condition which Executive believes constitutes Good Reason within thirty (30) days of the initial existence of such condition (which notice specifically identifies such condition), (2) the Company (or a Successor Employer thereto) fails to remedy such condition within thirty (30) days after the date on which it receives such notice (the “ Remedial Period ”), and (3) Executive actually terminates employment within thirty (30) days after the expiration of the Remedial Period and before the Company (or a Successor Employer thereto) remedies such condition. If Executive terminates employment before the

 

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expiration of the Remedial Period or after the Company (or a Successor Employer thereto) remedies the condition (even if after the end of the Remedial Period), then Executive’s termination will not be considered to be for Good Reason.

(d) Subject to Section 3.4.1(b), payments under Section 3.4.1(a)(i) shall be paid in a manner consistent with that set forth in Section 3.3(d). Notwithstanding the foregoing, if any benefits pursuant to Section 3.4.1(a) constitute a “deferral of compensation” subject to Code Section 409A (after taking into account, to the maximum extent possible, any applicable exemptions), then the applicable provisions of Section 13 hereof shall apply.

 

  3.4.2 Code Section 280G

(a) Notwithstanding anything in this Agreement to the contrary, in the event that Executive becomes entitled to receive or receives any payment or benefit under this Agreement or under any other plan, agreement or arrangement with the Company, or from any person whose actions result in a Change of Control or any other person affiliated with the Company or such person (all such payments and benefits being referred to herein as the “ Total Payments ”) and it is determined that any of the Total Payments will be subject to any excise tax pursuant to Code Section 4999, or any similar or successor provision (the “ Excise Tax ”), the Company shall pay to Executive either (1) the full amount of the Total Payments or (2) an amount equal to the Total Payments, reduced by the minimum amount necessary to prevent any portion of the Total Payments from being an “excess parachute payment” (within the meaning of Code Section 280G) (the “ Capped Payments ”), whichever of the foregoing amounts results in the receipt by Executive, on an after-tax basis, of the greatest amount of Total Payments notwithstanding that all or some portion of the Total Payments may be subject to the Excise Tax. For purposes of determining whether Executive would receive a greater after-tax benefit from the Capped

 

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Payments than from receipt of the full amount of the Total Payments, (i) there shall be taken into account any Excise Tax and all applicable federal, state and local taxes required to be paid by Executive in respect of the receipt of such payments and (ii) such payments shall be deemed to be subject to federal income taxes at the highest rate of federal income taxation applicable to individuals that is in effect for the calendar year in which the effective date of the Change of Control occurs, and state and local income taxes at the highest rate of taxation applicable to individuals in the state and locality of Executive’s residence on the effective date of the Change of Control, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes (as determined by assuming that such deduction is subject to the maximum limitation applicable to itemized deductions under Code Section 68 and any other limitations applicable to the deduction of state and local income taxes under the Code).

(b) All computations and determinations called for by this Section 3.4.2 shall be made by a reputable independent public accounting firm or independent tax counsel appointed by the Company (the “ Firm ”). All determinations made by the Firm under this Section 3.4.2 shall be conclusive and binding on both the Company and Executive, and the Firm shall provide its determinations and any supporting calculations to the Company and Executive within ten (10) business days after Executive’s employment terminates under any of the circumstances described in Section 3.4.1, or such earlier time as is requested by the Company. For purposes of making its determinations under this Section 3.4.2, the Firm may rely on reasonable, good faith interpretations concerning the application of Code Sections 280G and 4999. The Company and Executive shall furnish to the Firm such information and documents as the Firm may reasonably request in making its determinations. The Company shall bear all fees and expenses charged by the Firm in connection with its services.

 

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(c) In the event that Section 3.4.2(a) applies and a reduction is required to be applied to the Total Payments thereunder, the Total Payments shall be reduced by the Company in its reasonable discretion in the following order: (1) reduction of any Total Payments that are subject to Code Section 409A on a pro-rata basis or such other manner that complies with Code Section 409A, as determined by the Company, and (2) reduction of any Total Payments that are exempt from Code Section 409A.

 

4. ASSIGNMENT

This Agreement is personal to Executive and shall not be assignable by Executive. The Company may assign its rights hereunder to (a) any Successor Employer; (b) any other corporation resulting from any merger, consolidation or other reorganization to which the Company is a party; (c) any other corporation, partnership, association or other person to which the Company may transfer all or substantially all of the assets and business of the Company existing at such time; or (d) any subsidiary, parent or other affiliate of the Company. All of the terms and provisions of this Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns.

 

5. AMENDMENTS IN WRITING

No amendment, modification, waiver, termination or discharge of any provision of this Agreement, or consent to any departure therefrom by either party hereto, shall in any event be effective unless the same shall be in writing, specifically identifying this Agreement and the provision intended to be amended, modified, waived, terminated or discharged and signed by the Company and Executive, and each such amendment, modification, waiver, termination or discharge shall be effective only in the specific instance and for the specific purpose for which

 

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given. No provision of this Agreement shall be varied, contradicted or explained by any oral agreement, course of dealing or performance or any other matter not set forth in an agreement in writing and signed by the Company and Executive.

 

6. NOTICES

Every notice relating to this Agreement shall be in writing and shall be given by personal delivery, by a reputable same-day or overnight courier service (charges prepaid), by registered or certified mail (postage prepaid, return receipt requested) or by facsimile to the recipient with a confirmation copy to follow the next day to be delivered by personal delivery or by a reputable same-day or overnight courier service to the appropriate party’s address or fax number below (or such other address and fax number as a party may designate by notice to the other parties):

 

If to the Company:

Zillow Group, Inc.

 

Attn: General Counsel

If to the Executive:

Paul Levine

 

(to address most recently on file with Company)

 

7. APPLICABLE LAW

This Agreement shall in all respects, including all matters of construction, validity and performance, be governed by, and construed and enforced in accordance with, the laws of the State of Washington, without regard to any rules governing conflicts of laws.

 

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8. ENTIRE AGREEMENT

This Agreement, on and as of the Effective Date, constitutes the entire agreement between the Company and Executive with respect to the subject matter hereof, and all prior or contemporaneous oral or written communications, understandings or agreements between the Company and Executive with respect to such subject matter are hereby superseded in their entirety, except as otherwise provided herein.

 

9. SEVERABILITY

If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or any action in any other jurisdiction, but this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.

 

10. WAIVERS

No delay or failure by any party hereto in exercising, protecting, or enforcing any of its rights, titles, interests, or remedies hereunder, and no course of dealing or performance with respect thereto, shall constitute a waiver thereof. The express waiver by a party hereto of any right, title, interest, or remedy in a particular instance or circumstance shall not constitute a waiver thereof in any other instance or circumstance. All rights and remedies shall be cumulative and not exclusive of any other rights or remedies.

 

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11. HEADINGS

All headings used herein are for convenience only and shall not in any way affect the construction of, or be taken into consideration in interpreting, this Agreement.

 

12. COUNTERPARTS

This Agreement, and any amendment or modification entered into pursuant to Section 5 hereof, may be executed in any number of counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute one and the same instrument.

 

13. CODE SECTION 409A

The Company makes no representations or warranties to Executive with respect to any tax, economic or legal consequences of this Agreement or any payments or other benefits provided hereunder, including without limitation under Code Section 409A, and no provision of this Agreement shall be interpreted or construed to transfer any liability for failure to comply with Code Section 409A from Executive or any other individual to the Company or any of its affiliates. Executive, by executing this Agreement, shall be deemed to have waived any claim against the Company and its affiliates with respect to any such tax, economic or legal consequences. However, the parties intend that this Agreement and the payments and benefits provided hereunder be exempt from the requirements of Code Section 409A, and the rules and regulations issued thereunder, to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-

 

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1(b)(9)(iii), or otherwise. To the extent Code Section 409A is applicable to this Agreement, the parties intend that this Agreement and any payments and benefits hereunder comply with the deferral, payout and other limitations and restrictions imposed under Code Section 409A so as to avoid the imputation of any tax, penalty or interest under Code Section 409A. Notwithstanding anything herein to the contrary, this Agreement shall be construed, interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary:

(a) To the extent Code Section 409A is applicable to this Agreement, a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination constitutes a “separation from service” within the meaning of Treasury Regulation Section 1.409A-1(h)(1), without regard to the optional alternative definitions available thereunder (a “ Separation from Service ”), and, for purposes of any such provision of this Agreement, references to “terminate,” “termination,” “termination of employment,” “resigns” and like terms shall mean Separation from Service.

(b) If Executive is a “specified employee” within the meaning of Treasury Regulation Section 1.409A-1(i) as of the date of Executive’s Separation from Service, Executive shall not be entitled to any payment or benefit on account of Executive’s Separation from Service, until the earlier of (1) the date which is six (6) months after Executive’s Separation from Service for any reason other than death or (2) the date of Executive’s death. The provisions of this paragraph shall only apply if, and to the extent, required to avoid the imputation of any tax, penalty or interest pursuant to Code Section 409A on Executive. Any amounts otherwise payable to Executive upon or in the six (6) month period following Executive’s Separation from Service

 

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that are not so paid by reason of this Section 13(b) shall be paid (without interest) as soon as practicable (and in all events within thirty (30) days) after the date that is six (6) months after Executive’s Separation from Service (or, if earlier, as soon as practicable, and in all events within thirty (30) days, after the date of Executive’s death).

IN WITNESS WHEREOF , the parties have executed and entered into this Agreement effective on the date first set forth above.

 

PAUL LEVINE
/s/ Paul Levine

 

ZILLOW GROUP, INC.
/s/ Richard N. Barton
By   Richard N. Barton
Its   Executive Chairman

 

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APPENDIX A

DEFINITIONS

Capitalized terms used below that are not defined in this Appendix A have the meanings set forth in the Executive Employment Agreement (“ Agreement ”) to which this Appendix A is attached. As used in the Agreement.

1. Cause ” means (a) dishonesty, fraud, or serious misconduct, (b) unauthorized use or disclosure of confidential information or trade secrets, or (c) conduct prohibited by criminal law.

2. Change of Control ” means the occurrence of any of the following events:

(a) an acquisition by any Entity of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than 50% of the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “ Outstanding Company Voting Securities ”); provided, however, that the following acquisitions shall not constitute a Change of Control: (i) any acquisition directly from the Company, other than an acquisition by virtue of the exercise of a conversion privilege where the security being so converted was not acquired directly from the Company by the party exercising the conversion privilege, (ii) any acquisition by the Company, (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any Related Company, (iv) any acquisition by a Founder Shareholder, provided that this clause (iv) shall terminate and be of no effect with respect to a Founder Shareholder at such time as such Founder Shareholder’s beneficial ownership of the Outstanding Company Voting Securities is less than 25%, or (v) any acquisition by any Entity pursuant to a transaction that meets the conditions of clauses (i), (ii) and (iii) set forth in the definition of Company Transaction;

 

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(b) a change in the composition of the Board of Directors of the Company during any two-year period such that the individuals who, as of the beginning of such two-year period, constitute the Board (the “ Incumbent Board ”) cease for any reason to constitute at least a majority of the Board; provided, however, that for purposes of this definition, any individual who becomes a member of the Board subsequent to the beginning of the two-year period, whose election, or nomination for election by the Company’s shareholders, was approved by a vote of at least a majority of those individuals who are members of the Board and who were also members of the Incumbent Board (or deemed to be such pursuant to this proviso) shall be considered as though such individual were a member of the Incumbent Board; and provided further, however, that any such individual whose initial assumption of office occurs as a result of or in connection with an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of an Entity other than the Board shall not be considered a member of the Incumbent Board; or

(c) the consummation of a Company Transaction.

Notwithstanding the foregoing, and for the avoidance of doubt, the completion of the Mergers shall not constitute a Change of Control for purposes of this Agreement.

3. Company Transaction ” means consummation of:

(a) a merger or consolidation of the Company with or into any other company;

 

A-2


(b) a statutory share exchange pursuant to which all of the Company’s outstanding shares are acquired or a sale in one transaction or a series of transactions undertaken with a common purpose of all of the Company’s outstanding voting securities; or

(c) a sale, lease, exchange or other transfer in one transaction or a series of related transactions undertaken with a common purpose of all or substantially all of the Company’s assets,

excluding, however, in each case, any such transaction pursuant to which

(i) the Entities who are the beneficial owners of the Outstanding Company Voting Securities immediately prior to such transaction will beneficially own, directly or indirectly, at least 50% of the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors of the Successor Company in substantially the same proportions as their ownership, immediately prior to such transaction, of the Outstanding Company Voting Securities;

(ii) no Entity (other than the Company, any employee benefit plan (or related trust) of the Company, a Related Company or a Successor Company) will beneficially own, directly or indirectly, more than 50% of the combined voting power of the outstanding voting securities of the Successor Company entitled to vote generally in the election of directors unless such ownership resulted solely from ownership of securities of the Company prior to such transaction; and

 

A-3


(iii) individuals who were members of the Incumbent Board will immediately after the consummation of such transaction constitute at least a majority of the members of the board of directors of the Successor Company.

Where a series of transactions undertaken with a common purpose is deemed to be a Company Transaction, the date of such Company Transaction shall be the date on which the last of such transactions is consummated.

4. Effective Date ” means the closing date of the Mergers, which is February 17, 2015.

5. Entity ” means any individual, entity or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act).

6. Exchange Act ” means the Securities Exchange Act of 1934, as amended.

7. Founder Shareholder ” means any holder of record of the Class B common stock, par value $0.0001 per share, of the Company as of the Effective Date.

8. Good Reason ” means that Executive, without Executive’s express, written consent, has:

(a) incurred a material reduction in Executive’s annual Salary or bonus opportunity (except for reductions in connections with a general reduction in annual Salary for all executives of the Company by an average percentage that is not less than the percentage reduction of Executive’s annual Salary);

(b) suffered a material breach of this Agreement by the Company or a Successor Employer;

(c) incurred a material reduction in authority, duties or responsibilities at the Company or a Successor Employer (with respect to a termination in connection with a Change of Control, relative to authority, duties or responsibilities immediately prior to the Change of Control); or

(d) been required to relocate or travel more than fifty (50) miles from Executive’s then current place of employment in order to continue to perform the duties and responsibilities of Executive’s position (not including customary travel as may be required by the nature of Executive’s position).

 

A-4


9. Merger Agreement ” means the Agreement and Plan of Merger, dated as of July 28, 2014, by and among Zillow, Inc., the Company, and Trulia.

10. Mergers ” mean the consummation of the transactions contemplated by the Merger Agreement pursuant to which, as of the Effective Date, each of Zillow, Inc., and Trulia became wholly owned subsidiaries of the Company .

11. Parent Company ” means a company or other entity which as a result of a Company Transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more intermediaries.

12. Related Company ” means any entity that is directly or indirectly controlled by, in control of or under common control with the Company.

13. Successor Company ” means the surviving company, the successor company or Parent Company, as applicable, in connection with a Company Transaction.

 

A-5


APPENDIX B

FORM OF RELEASE

In consideration for the benefits to be provided pursuant to Section 3 of the Executive Employment Agreement (“ Agreement ”) entered into by and between (“ Executive ”) and Zillow Group, Inc., a Washington corporation (the “ Company ”), with an effective date of ___________, 2015, Executive agrees to the following:

(a) Executive represents that Executive has not filed any complaints, charges or lawsuits against the Company or any subsidiary of the Company with any governmental agency or any court, and agrees that Executive will not initiate or encourage any such actions, and will not assist any such actions other than as required by law; provided, however, nothing in this Agreement prevents Executive from filing a charge or complaint with, or from participating, in an investigation or proceeding conducted by any federal, state or local agency charged with the enforcement of any employment laws. By signing this Agreement, however, Executive is waiving rights to individual relief based on claims asserted in such a charge or complaint .

(b) Executive expressly waives all claims against the Company and releases the Company, and any of the Company’s past, present or future parent, affiliated, related, and/or subsidiary entities, and all of the past and present directors, shareholders, officers, general or limited partners, employees, agents, and attorneys, and agents and representatives of such entities, and employee benefit plans in which Executive is or has been a participant by virtue of his or her employment with the Company (collectively, the “ Releasees ”), from any claims that Executive may have against the Company or the Releasees. It is understood that this release includes, but is not limited to, any claims arising directly or indirectly out of, relating to, or in

 

B-1


any other way involving in any manner whatsoever, (1) Executive’s employment with the Company or its subsidiaries or the termination thereof or (2) Executive’s status at any time as a holder of any securities of the Company, including any claims for wages, stock or stock options, employment benefits or damages of any kind whatsoever arising out of any contracts, express or implied, any covenant of good faith and fair dealing, express or implied, any legal restriction on the Company’s right to terminate employment, or any federal, state or other governmental statute or ordinance, including, without limitation, the Employee Retirement Income Security Act of 1974, Title VII of the Civil Rights Act of 1964, the federal Age Discrimination in Employment Act, the Americans With Disabilities Act, the Family and Medical Leave Act, the Washington Law Against Discrimination Act, the Washington Family and Parental Leave Act; the California Government Code; the California Fair Employment and Housing Act; the California Family Rights Act; the Constitution of the State of California; the California Labor Code, including as it applies to the payment of wages, salary, compensation, or penalties; as well as all applicable wage and hour statutes, regulations, and ordinances, including any applicable California Industrial Welfare Commission Wage Order; or any other legal limitation on the employment relationship (the “ Release ”); provided, however, notwithstanding anything to the contrary set forth herein, that this Release shall not extend to (i) benefit claims under employee pension benefit plans in which Executive is a participant by virtue of Executive’s employment with the Company or its subsidiaries or to benefit claims under employee welfare benefit plans for occurrences (e.g., medical care, death, or onset of disability) arising after the execution of this Release by Executive, (ii) Executive’s rights to benefits under the Agreement; (iii) any claims Executive may have for indemnification pursuant to law, contract or Company policy, (iv) any claims for coverage under any applicable directors’ and officers’ insurance policy in accordance

 

B-2


with the terms of such policy, (v) any claim or right Executive cannot waive as a matter of law, including but not limited to claims under the California Workers’ Compensation Act, if any; or (vi) any claims arising from events that occur after the date Executive signs this Release.

(c) Executive waives (i) all rights that Executive may have based on any unknown and undiscovered facts, and (ii) all rights that are provided in California Civil Code Section 1542 which provides as follows:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

Executive understands that this Release includes a release of claims arising under the Age Discrimination in Employment Act (ADEA). Executive understands and warrants that Executive has been given a period of twenty-one (21) days to review and consider this Release or forty-five (45) days if Executive’s termination is part of a group reduction in force. Executive further warrants that Executive understands that, with respect to the release of age discrimination claims only, Executive has a period of seven days (7) after execution of this Release to revoke the release of age discrimination claims by notice in writing to the Company.

EXECUTIVE ACKNOWLEDGES ALL OF THE FOLLOWING:

(A) I HAVE CAREFULLY READ AND HAVE VOLUNTARILY SIGNED THIS RELEASE;

 

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(B) I FULLY UNDERSTAND THE FINAL AND BINDING EFFECT OF THIS RELEASE, INCLUDING THE WAIVER OF CLAIMS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT; AND

(C) PRIOR TO SIGNING THIS RELEASE, I HAVE BEEN ADVISED OF MY RIGHT TO CONSULT, AND HAVE BEEN GIVEN ADEQUATE TIME TO REVIEW MY LEGAL RIGHTS WITH AN ATTORNEY OF MY CHOICE.

 

 

 

Executive Signature

 

 

 

Executive Name (Print)

 

 

 

Date

 

B-4

Exhibit 10.9

ZILLOW GROUP, INC.

INDEMNIFICATION AGREEMENT

This Indemnification Agreement (this “ Agreement ”), dated as of                      , 20      , is entered into by and between Zillow Group, Inc., a Washington corporation (the “ Company ”), and                              (“ lndemnitee ”).

RECITALS

A. Indemnitee performs a valuable service for the Company [ADDITIONAL CLAUSE TO BE ADDED FOR THESE AGREEMENTS WITH FORMER DIRECTORS AND OFFICERS OF ZILLOW, INC.: and, prior the date hereof, performed a valuable service for Zillow, Inc. (the “ Predecessor Company ”), which became a wholly owned subsidiary of the Company pursuant to that certain Agreement and Plan of Merger, dated as of July 28, 2014, by and among the Company (f/k/a Zebra Holdco, Inc.), the Predecessor Company and Trulia, Inc].

B. The Company’s Amended and Restated Articles of Incorporation (the “ Articles ”) and bylaws (the “ Bylaws ”) contain certain provisions, approved by the Company’s shareholders, for indemnification of the Company’s directors and/or officers to the full extent permitted by the Washington Business Corporation Act (the “ Statute ”).

C. The Indemnitee has indicated a desire to supplement the indemnification provisions in the Articles and Bylaws to provide additional protections against the risks associated with his service to the Company and further clarify his rights with respect to indemnification in certain circumstances.

D. To induce Indemnitee to accept and continue his service as a director and/or officer of the Company, the Company and the Indemnitee now agree that they should enter into this Indemnification Agreement.

[ADDITIONAL CLAUSES TO BE ADDED FOR THESE AGREEMENTS WITH FORMER DIRECTORS AND OFFICERS OF ZILLOW, INC.:

E. The parties desire for this Agreement to supersede the prior indemnification agreement between Indemnitee and the Predecessor Company and further desire that all of the rights and obligations under such prior indemnification agreement shall be included in Indemnitee’s rights and the Company’s obligations, respectively, in this Agreement.

F. All references in this Agreement to the “ Company ” shall be deemed to include the Predecessor Company, including before it became a subsidiary of Zillow Group, Inc.]

[ADDITIONAL CLAUSES TO BE ADDED FOR THESE AGREEMENTS WITH FORMER DIRECTORS AND OFFICERS OF TRULIA, INC.:


E. Prior to the date hereof, Indemnitee provided services to Trulia, Inc., which became a wholly owned subsidiary of the Company pursuant to that certain Agreement and Plan of Merger, dated as of July 28, 2014, by and among the Company (f/k/a Zebra Holdco, Inc.), Zillow, Inc. and Trulia, Inc. (such transaction, the “ Merger ”).

F. The parties desire that the prior indemnification agreement entered into between Indemnitee and Trulia, Inc. shall remain in full force and effect and continue to provide rights of indemnification with respect to Indemnitee’s service as a director and/or officer of Trulia, Inc. prior to the effectiveness of the Merger.]

AGREEMENT

 

1. Indemnification of Indemnitee

 

  1.1 Scope

Subject to Section 4.1 and all other terms and conditions of this Agreement, the Company agrees to indemnify and hold harmless Indemnitee, to the full extent permitted by law, whether or not specifically authorized by this Agreement, the Articles, the Bylaws, the Statute or otherwise, for any Indemnifiable Losses (as defined below) which the Indemnitee is or becomes legally obligated to pay in connection with any Proceeding. In the event of any change, after the date of this Agreement, in any applicable law, statute or rule regarding the right of a Washington corporation to indemnify a director and/or officer, such changes, to the extent that they would expand Indemnitee’s indemnification rights, shall be within the purview of Indemnitee’s rights and the Company’s obligations under this Agreement, and, to the extent that such changes would narrow Indemnitee’s indemnification rights, shall not affect or limit the scope of this Agreement; provided, however, that any change that is required by applicable laws, statutes or rules to be applied to this Agreement shall be so applied regardless of whether the effect of such change is to narrow Indemnitee’s rights hereunder.

 

  1.2 Nonexclusivity

The indemnification provided by this Agreement is not exclusive of any rights to which Indemnitee may be entitled under the Articles, the Bylaws, any other agreement, any vote of shareholders or disinterested directors, the Statute, or otherwise, whether as to action in Indemnitee’s official capacity or otherwise.

 

  1.3 Definition of Indemnifiable Losses

For purposes of this Agreement, the term “ Indemnifiable Losses ” shall include (without limitation) any and all damages (compensatory, exemplary, punitive or otherwise), judgments, fines, penalties, settlements, and expenses (including but not limited to costs, attorneys’ and expert fees and disbursements, costs of attachment or similar bonds, investigations, and expenses of establishing a right to indemnification under this Agreement (“Expenses”)), and any other losses, claims, liabilities or other expenses incurred in connection with a Proceeding, subject to the limitations set forth in Section 4.1 below.

 

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  1.4 Definition of Proceeding

For purposes of this Agreement, the term “ Proceeding ” shall include (without limitation) any threatened, pending or completed claim, action, suit or proceeding, whether brought by or in the right of the Company or otherwise, and whether of a civil, criminal, administrative or investigative nature, in which the Indemnitee may be or may have been involved as a party or otherwise (including without limitation as a witness) (a) by reason of the fact that Indemnitee is or was, or has agreed to become, a director and/or officer of the Company, (b) by reason of the fact that Indemnitee is or was serving at the request of the Company as a director, trustee, officer, employee or agent of the Company or another corporation, partnership, joint venture, trust or other enterprise (including without limitation employee benefit plans and administrative committees thereof) (an “Enterprise”) (which request will be conclusively presumed in the case of any of the foregoing that are “affiliates” of the Company as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended), (c) by reason of any actual or alleged error or misstatement or misleading statement made or suffered by the Indemnitee while acting as a director and/or officer of the Company or while serving at the request of the Company and acting as a director, trustee, officer, employee or agent of an Enterprise, or (d) by reason of any action taken by Indemnitee or of any inaction on Indemnitee’s part while acting as a director and/or officer of the Company or while serving at the request of the Company and acting as a director, trustee, officer, employee or agent of an Enterprise; provided, however, that, except with respect to an action to enforce the provisions of this Agreement or to enforce insurance rights under policies of insurance purchased by the Company or an Enterprise on Indemnitee’s behalf, the term “Proceeding” shall not include any action, suit, claim or proceeding instituted by or at the direction of Indemnitee unless such action, suit, claim or proceeding is or was authorized or ratified by the Company’s Board of Directors.

 

  1.5 Determination of Entitlement

In the event that, notwithstanding Section 6.5 of the Company’s Bylaws, a determination of Indemnitee’s entitlement to indemnification is required pursuant to Section 23B.08.550 of the Statute or its successor or pursuant to other applicable law, the party specified therein as the determining party shall make such determination; provided, however, (a) that Indemnitee shall initially be presumed in all cases to be entitled to indemnification, (b) that Indemnitee may establish a conclusive presumption of any fact necessary to such a determination by delivering to the Company a declaration made under penalty of perjury that such fact is true and (c) that, unless the Company shall deliver to Indemnitee written notice of a determination that Indemnitee is not entitled to indemnification within twenty (20) days of the Company’s receipt of Indemnitee’s initial written request for indemnification, such determination shall conclusively be deemed to have been made in favor of the Company’s provision of indemnification and Company agrees not to assert otherwise.

 

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  1.6 Survival

The indemnification provided under this Agreement shall apply to any and all Proceedings, notwithstanding that Indemnitee has ceased to serve in a capacity referred to in Section 1.4(a)-(d).

 

2. Expense Advances

 

  2.1 Generally

The right to indemnification for Indemnifiable Losses conferred by Section 1 shall include the right to have the Company pay Indemnitee’s expenses in any Proceeding as such expenses are incurred and in advance of such Proceeding’s final disposition (such right is referred to hereinafter as an “ Expense Advance ”), subject to Sections 2.2, 4 and 5 and all other terms and conditions of this Agreement.

 

  2.2 Conditions to Expense Advance

The Company’s obligation to provide an Expense Advance is subject to (a) Indemnitee or his or her representative having first executed and delivered to the Company an undertaking, which need not be secured and shall be accepted without reference to Indemnitee’s financial ability to make repayment, by or on behalf of Indemnitee to repay all Expense Advances if and to the extent that it shall ultimately be determined by a final, unappealable decision rendered by a court having jurisdiction over the parties and the subject matter of the dispute that Indemnitee is not entitled to be indemnified under this Agreement or otherwise; and (b) Indemnitee furnishing, upon request by the Company and if required under applicable law, a written affirmation of Indemnitee’s good faith belief that Indemnitee has met any applicable standards of conduct.

 

  2.3 Subrogation

In the event of 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 papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights. [ALTERNATIVE PROVISION TO BE USED FOR THESE AGREEMENTS WITH DIRECTORS AFFILIATED WITH VENTURE CAPITAL FUNDS: In the event of any payment under this Agreement and except as set forth below in this Section 2.3, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee (other than against [FUND] and its affiliated funds (collectively, the “ Fund Indemnitors ”)), who shall execute all papers required and take all action necessary to secure such rights, including, without limitation, execution of such documents as are necessary to enable the Company to bring suit to enforce such rights. The Company hereby acknowledges that Indemnitee has certain rights to indemnification, advancement of expenses and/or insurance provided by the Fund Indemnitors. The Company hereby agrees that, with respect to claims made against

 

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Indemnitee arising out of Indemnitee’s capacity as a director of the Company, (i) the Company is the indemnitor of first resort relative to the Fund Indemnitors ( i.e. , the Company’s obligations to Indemnitee are primary and any obligation of the Fund Indemnitors to advance expenses or to provide indemnification for the same Expenses or liabilities incurred by Indemnitee is secondary), (ii) the Company shall be required to advance the full amount of Expenses actually and reasonably incurred by Indemnitee and shall be liable for the full amount of all Expenses, judgments, penalties, fines and amounts paid in settlement, in each case to the extent required by and subject to the terms of this Agreement, without regard to any rights Indemnitee may have against the Fund Indemnitors, and (iii) the Company, with respect to its obligations under this Agreement to advance Expenses to and indemnify Indemnitee, irrevocably waives, relinquishes and releases the Fund Indemnitors from any and all claims against the Fund Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Company further agrees that no Expense Advance or payment by the Fund Indemnitors on behalf of Indemnitee with respect to any claim for which Indemnitee has sought an Expense Advance or indemnification from the Company shall affect the foregoing and the Fund Indemnitors shall have a right of contribution and/or be subrogated to the extent of such Expense Advance or payment to all of the rights of recovery of Indemnitee against the Company. The Company and Indemnitee agree that the Fund Indemnitors are express third party beneficiaries of the terms of this Section 2.3.]

 

3. Procedures for Enforcement

 

  3.1 Enforcement

In the event that a claim for indemnification hereunder is made and is not paid in full within twenty days after written notice of such claim is delivered to the Company, Indemnitee may, but need not, at any time bring suit against the Company to recover the unpaid amount of the claim (an “ Enforcement Action ”), subject to all other terms, conditions and limitations of this Agreement.

 

  3.2 Presumptions in Enforcement Action

In any Enforcement Action the following presumptions (and limitation on presumptions) shall apply:

(a) The Company shall conclusively be presumed to have entered into this Agreement and assumed the obligations imposed on it to induce Indemnitee to accept the position of, or to continue as director and/or officer of the Company; and

(b) Neither (i) the failure of the Company (including its Board of Directors, independent or special legal counsel or the Company’s shareholders) to have made a determination prior to the commencement of the Enforcement Action that indemnification of Indemnitee is proper in the circumstances nor (ii) an actual determination by the Company, its Board of Directors, independent or special legal counsel or the shareholders that Indemnitee is not entitled to indemnification shall be a defense to the Enforcement

 

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Action or create a presumption that Indemnitee is not entitled to indemnification. An Enforcement Action shall be conducted in all respects as a de novo trial on the merits and Indemnitee shall not be prejudiced by reason of a previous adverse determination by the Company. In any Enforcement Action, the Company shall have the burden of proving Indemnitee is not entitled to indemnification or Expense Advances, as the case may be.

 

  3.3 Attorneys’ Fees and Expenses for Enforcement Action

The Company shall indemnify and hold harmless Indemnitee against all of Indemnitee’s reasonable fees and expenses in bringing and pursuing any Enforcement Action (including reasonable attorneys’ fees at any stage, including on appeal); provided, however, that the Company shall not be required to provide such indemnity (a) if a court of competent jurisdiction determines that each of the material assertions made by Indemnitee in such Enforcement Action was not made in good faith or was frivolous or (b) to the extent limited under Section 4.1 below.

 

4. Limitations

 

  4.1 Limitation on Indemnity

Notwithstanding any other provision of this Agreement, the Company shall not be obligated to provide indemnification (other than Expense Advances) pursuant to this Agreement:

(a) on account of any suit in which a final, unappealable decision is rendered by a court having jurisdiction over the parties and the subject matter of the dispute for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company in violation of the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto;

(b) for Indemnifiable Losses that actually have been paid directly to Indemnitee by an insurance carrier under a policy of insurance maintained by the Company;

(c) on account of Indemnitee’s conduct which is finally adjudged with no further right of appeal to have been intentional misconduct, a knowing violation of law, a violation of RCW 23B.08.310 or any successor provision of the Statute, or a transaction from which Indemnitee derived personal benefit in money, property or services to which Indemnitee was not legally entitled;

(d) to the extent that the Indemnitee is actually indemnified and actually paid otherwise than pursuant to this Agreement [ADDITIONAL CLAUSE TO BE ADDED FOR THESE AGREEMENTS WITH DIRECTORS AFFILIATED WITH VENTURE CAPITAL FUNDS: “, except for any Expense Advances or indemnification payments by Fund Indemnitors as described in Section 2.3”];

 

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(e) if a final, unappealable decision is rendered by a court having jurisdiction over the parties and the subject matter of the dispute finding that paying such indemnification is prohibited by applicable law;

(f) to the extent that attorneys’ fees, costs and disbursements, or similar expenses, that otherwise would constitute Indemnifiable Losses hereunder are determined to be unreasonable by a final, unappealable decision rendered by a court having jurisdiction over the parties and the subject matter of the dispute, provided that the burden of proof that any Indemnifiable Losses are unreasonable shall be on the Company; or

(g) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the securities laws of the United States, including but not limited to the Sarbanes-Oxley Act of 2002 and the Dodd-Frank Wall Street Reform and Consumer Protection Act.

 

  4.2 Partial Indemnification and Contribution

If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of any Indemnifiable Losses in connection with a Proceeding, but not, however, for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such Indemnifiable Losses to which Indemnitee is entitled.

To the fullest extent permissible under applicable law, if, for any reason whatsoever, the indemnification provided for in this Agreement is unavailable to Indemnitee with respect to a Proceeding or a particular claim in a Proceeding but the Company is able to indemnify the Indemnitee with respect to another claim in the Proceeding or indemnify or pay the Expenses or liabilities of another person or entity that is a party to the Proceeding, then, in lieu of indemnifying Indemnitee with respect to the matter for which indemnification is unavailable, the Company shall contribute to the amount actually and reasonably incurred by Indemnitee, whether for Expenses, judgments, fines or amounts paid or to be paid in settlement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee as a result of the events and transactions giving cause to such Proceeding and (ii) the relative fault of the Company (and its directors, officers, employees and agents), on the one hand, and Indemnitee, on the other hand, in connection with such events and transactions. The Company hereby agrees to indemnify and hold harmless Indemnitee from any claims for contribution which may be brought by directors, officers or employees of the Company (other than Indemnitee) who may be jointly liable with Indemnitee for matters for which Indemnitee would be entitled to indemnification or contribution by the Company under this Agreement.

 

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  4.3 Mutual Acknowledgment

The Company and Indemnitee acknowledge that, in certain instances, federal law or public policy may override applicable state law and prohibit the Company from indemnifying Indemnitee under this Agreement or otherwise. For example, the Company and Indemnitee acknowledge that the Securities and Exchange Commission has taken the position that indemnification is not permissible for liabilities arising under certain federal securities laws, and federal legislation prohibits indemnification for certain ERISA violations. Furthermore, Indemnitee understands and acknowledges that the Company has undertaken or may be required in the future to undertake with the Securities and Exchange Commission to submit the question of indemnification to a court in certain circumstances for a determination of the Company’s right under public policy to indemnify Indemnitee.

 

5. Notification and Defense of Claim

 

  5.1 Notification

Promptly after receipt by Indemnitee of notice of the commencement of any Proceeding, Indemnitee will, if a claim is to be made against the Company under this Agreement, notify an executive officer of the Company in writing of the nature and status of the Proceeding; provided, however, that the omission so to notify an executive officer of the Company will not relieve the Company from any obligation which it may have to Indemnitee under this Agreement or otherwise unless and only to the extent that such omission can be shown to have prejudiced the Company.

If, at the time of the receipt of a notice of a claim pursuant to this Section 5.1, the Company has director and officer liability 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 (unless there is no basis for asserting coverage). The Company shall take all necessary 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 policies.

 

  5.2 Defense of Claim

With respect to any such Proceeding as to which Indemnitee notifies the Company of the commencement thereof or otherwise seeks indemnification hereunder:

(a) The Company may participate at its own expense in such Proceeding;

(b) The Company, jointly with any other indemnifying party similarly notified, may assume the defense of the Proceeding with counsel reasonably satisfactory to Indemnitee. After notice from the Company to Indemnitee of its election to assume the defense, the Company shall not be liable to Indemnitee under this Agreement or otherwise for any legal or other expenses of counsel (other than reasonable costs of investigation) subsequently incurred by Indemnitee in connection with the defense of such Proceeding,

 

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unless (i) the employment of counsel by Indemnitee has been authorized in advance by the Company in writing, (ii) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of the defense of such action and notified the Company in writing to that effect in advance of the expense, (iii) the Company shall not in fact have employed counsel to assume the defense of such action, or (iv) the Company is not financially or legally able to perform its indemnification obligations, in each of which cases the fees and expenses of counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any action, suit or proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the conclusion provided for in (ii) or (iv) above;

(c) The Company shall not without Indemnitee’s written consent settle any action or claim in any manner which would impose any penalty or limitation on Indemnitee that would not be an Indemnifiable Loss hereunder for which indemnification would be provided by the Company.

 

6. Miscellaneous

 

  6.1 Entire Agreement

This Agreement is the entire agreement of the parties regarding its subject matter and supersedes all prior written or oral communications or agreements regarding the subject matter covered by this Agreement [ADDITIONAL CLAUSE TO BE ADDED FOR THESE AGREEMENTS WITH FORMER DIRECTORS AND OFFICERS OF ZILLOW, INC.: , including any such prior agreement between Indemnitee and the Predecessor Company].

 

  6.2 Severability

Nothing in this Agreement is intended to require or shall be construed as requiring the Company to do or fail to do any act in violation of applicable law. The Company’s inability, pursuant to court order, to perform its obligations under this Agreement shall not constitute a breach of this Agreement. The provisions of this Agreement shall be severable. If this Agreement or any portion shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify Indemnitee to the full extent permitted by any portion of this Agreement not invalidated, and the balance of this Agreement shall be enforceable in accordance with its terms.

 

  6.3 Notices

Notices given pursuant to this Agreement shall be deemed duly given on the date of personal delivery, on the date sent by fax or three days after mailing if mailed by certified or registered mail, return receipt requested, postage prepaid, to the party at its address below or such other address of which the addressee may subsequently notify the other parties in writing.

 

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  6.4 Governing Law

This Agreement and the rights and obligations of the parties shall be governed by and construed in accordance with the laws of the state of Washington, without giving effect to principles of conflicts of law.

 

  6.5 Counterparts

This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument.

 

  6.6 Amendments; Waivers

Neither this Agreement nor any provision may be amended except by written agreement signed by the parties. No waiver of any breach or default shall be considered valid unless in writing, and no such waiver shall be deemed a waiver of any subsequent breach or default.

 

  6.7 Duration

This Agreement shall continue for the duration of Indemnitee’s service as a director of the Company or as a director, trustee, partner, management member, officer, employee, agent, fiduciary, stockholder or controlling person of the Company or any other Enterprise and thereafter for so long as Indemnitee may be subject to any pending or possible claim due for Indemnifiable Losses.

 

  6.8 Successors and Assigns

This Agreement shall be binding upon the Company and its successors and assigns, and inure to the benefit of Indemnitee and Indemnitee’s heirs, legal representatives and assigns. The Company shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place.

(Signature page follows)

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the date first above written.

 

ZILLOW GROUP, INC.
By:    
Name:    
Its:    
Address:   1301 Second Avenue, Floor 31
  Seattle, WA 98101
Fax:   (206) 470-7001
 

 

INDEMNITEE:
 
Name:    
Address:    
   
   
Fax:    

 

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