EXHIBIT 1
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LENDINGTREE, INC.
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SECURITIES PURCHASE AGREEMENT
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SEPTEMBER 29, 2000
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TABLE OF CONTENTS
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TABLE OF CONTENTS
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SECTION 1 Purchase and Sale of Equity Rights; Authorization of Shares and Warrants..............1
1.1 Purchase of Equity Rights.............................................................1
1.2 Authorization of Shares and Warrants..................................................1
SECTION 2 Closing Dates; Delivery...............................................................2
2.1 Closing...............................................................................2
2.2 Delivery..............................................................................2
SECTION 3 Representations, Warranties and Covenants of the Company..............................2
3.1 Organization and Standing; Articles and Bylaws........................................2
3.2 Corporate Power.......................................................................2
3.3 Capitalization........................................................................2
3.4 Authorization.........................................................................3
3.5 No Solicitation.......................................................................3
3.6 Reports and Financial Statements......................................................3
3.7 No Additional Filings.................................................................4
3.8 Access to Information.................................................................4
3.9 Additional Covenants..................................................................5
SECTION 4 Representations, Warranties and Covenants of the Purchasers...........................5
4.1 Accredited Investor; Experience; Risk.................................................5
4.2 Investment............................................................................5
4.3 Restricted Securities; Rule144........................................................5
4.4 Authorization.........................................................................6
4.5 Further Limitations on Disposition....................................................6
4.6 Legends...............................................................................6
SECTION 5 Registration Rights...................................................................7
5.1 Piggyback Registration Rights.........................................................7
5.2 Underwriting..........................................................................7
5.3 Delay Period..........................................................................8
SECTION 6 Miscellaneous.........................................................................8
6.1 Governing Law.........................................................................8
6.2 Xxxx-Xxxxx-Xxxxxx.....................................................................8
6.3 Survival..............................................................................8
6.4 Subsequent Deliveries.................................................................8
6.5 Successors and Assigns................................................................9
6.6 Entire Agreement; Amendment...........................................................9
6.7 Notices, etc..........................................................................9
6.8 Delays or Omissions..................................................................10
6.9 Counterparts.........................................................................10
6.10 Severability.........................................................................10
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LENDINGTREE, INC.
SECURITIES PURCHASE AGREEMENT
This Agreement is made as of September 29, 2000, among LENDINGTREE,
INC., a Delaware corporation (the "Company"), Capital Z Financial Services Fund
II, L.P. ("CAPITAL Z FUND II") and Capital Z Financial Services Private Fund II,
L.P. ("CAPITAL Z PRIVATE FUND II" each of Capital Z Fund II and Capital Z
Private Fund II a "PURCHASER" and collectively the "PURCHASERS").
RECITALS
WHEREAS, the Company desires to sell, and Purchasers desire to
purchase, at an aggregate purchase price of $10,000,000 (the "PURCHASE PRICE")
equity rights in the form of the Equity Rights Certificate attached hereto as
Exhibit A (the "EQUITY RIGHTS"), which shall be initially exercisable in the
aggregate for (i) 1,253,918 shares (the "Shares") of the Company's common stock,
par value $.01 per share (the "COMMON STOCK") and (ii) warrants to purchase an
aggregate of 225,000 shares of Common Stock at an exercise price per share of
$7.975 (the "WARRANTS").
WHEREAS, the Equity Rights to be purchased by each Purchaser shall be
initially exercisable for the respective number of Shares and Warrants set forth
beside such Purchaser's name on Schedule I (attached hereto).
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements set forth in this
Agreement, and intending to be legally bound hereby, the parties hereto agree as
follows:
SECTION 1
PURCHASE AND SALE OF EQUITY RIGHTS; AUTHORIZATION OF SHARES AND WARRANTS
1.1 PURCHASE OF EQUITY RIGHTS. Subject to the terms and conditions
hereof, at the Closing (as defined in Section 2 hereof) the Purchasers shall
purchase from the Company, and the Company shall sell and issue to the
Purchasers, the Equity Rights for the Purchase Price.
1.2 AUTHORIZATION OF SHARES AND WARRANTS. The Company has authorized
the issuance of the Shares and has reserved the Shares for issuance. The Company
has authorized the issuance of the Warrants and has reserved 225,000 shares of
Common Stock for issuance upon the exercise of the Warrants.
SECTION 2
CLOSING DATES; DELIVERY
2.1 CLOSING. The closing of the purchase and sale of the Equity Rights
hereunder (the "CLOSING") shall take place on the date hereof at such time and
place as the Company and Purchasers shall agree (the actual time and date of the
Closing is hereinafter referred to as the "CLOSING DATE").
2.2 DELIVERY. At the Closing, the Company will deliver to the
Purchasers the Equity Rights, duly executed by the Company and the Purchasers
will deliver the Purchase Price to the Company by wire transfer of same-day
funds.
SECTION 3
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
The Company hereby represents, warrants and covenants to the Purchasers
with respect to the sale and issuance to the Purchasers of the Equity Rights, as
follows:
3.1 ORGANIZATION AND STANDING; ARTICLES AND BYLAWS. The Company is a
corporation duly organized and existing under the laws of the State of Delaware
and is authorized to exercise all its corporate powers, rights and privileges
and is in good legal standing in the State of Delaware. The Company has made
available to the Purchasers true and complete copies of its Certificate of
Incorporation, as amended ("CHARTER"), and Bylaws, as amended.
3.2 CORPORATE POWERR. The Company has all requisite legal and corporate
power to execute and deliver this Agreement, the Equity Rights and the Warrants
and to issue the Equity Rights and the securities provided for thereunder, and
to carry out and perform its obligations under the terms hereunder and under
such documents.
3.3 CAPITALIZATION. As of July 31, 2000, the authorized capital stock
of the Company consisted of 100,000,000 shares of Common Stock, 18,663,384
shares of which were issued and outstanding and 10,000,000 shares of preferred
stock, par value $0.01 per share, none of which were issued and outstanding. All
such issued and outstanding shares have been duly authorized and validly issued,
and are fully paid and nonassessable and have been issued in compliance with
federal and state securities law. Except as contemplated herein, as of July 31,
2000, there were no options, warrants, conversion privileges or other rights
presently outstanding to purchase or otherwise acquire any authorized but
unissued shares of the capital stock or other securities of the Company, nor any
agreements or understandings with respect thereto, other than (i) options to
purchase 3,872,394 shares of Common Stock granted to eligible participants under
the Company's benefit plans and (ii) warrants to purchase 857,885 shares of
Common Stock. Neither the offer nor the issuance or sale of the Equity Rights,
nor the issuance of any security directly or indirectly provided for thereunder
will trigger any anti-dilution or similar provision under any Equity Security
(as hereinafter defined) or of any agreement or instrument to which the Company
is a party or by which it is bound or affected, which shall either automatically
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increase the number of shares or units of Equity Securities issuable upon
conversion of any securities or upon exercise of any warrant, option or right to
subscribe to or purchase any stock or similar security, or decrease the
consideration per share or unit of Equity Security to be received by the Company
upon such conversion or exercise. For the purposes of this Agreement, "EQUITY
SECURITY" shall mean any stock or similar security of the Company or any
security convertible or exchangeable, with or without consideration, into or for
any stock or similar security, or any security carrying or representing any
option, warrant or right to subscribe to or purchase any stock or similar
security, or any such option, warrant or right; provided, that the Equity Rights
and any security directly or indirectly provided for thereunder shall not be
included in the definition of Equity Security.
3.4 AUTHORIZATION. All corporate action on the part of the Company, its
directors and stockholders necessary for the authorization, execution, delivery
and performance of this Agreement, the Equity Rights and the Warrants, the
authorization, sale, issuance and delivery of any security directly or
indirectly provided for thereunder and the performance of the Company's
obligations hereunder and thereunder have been taken. This Agreement, the Equity
Rights and the Warrants, when executed and delivered by the Company, shall
constitute valid and binding obligations of the Company enforceable in
accordance with their respective terms, subject to laws of general application
relating to bankruptcy, insolvency and the relief of debtors, and rules of law
governing specific performance, injunctive relief or other equitable remedies.
The Common Stock issuable upon exercise of the Warrants and any other shares of
capital stock directly or indirectly issuable upon the exercise of the Equity
Rights (based upon the market price of the Common Stock on the date hereof) have
been duly and validly reserved for issuance, and upon issuance will be duly and
validly issued, fully paid and nonassessable, free of preemptive rights and
restrictions on transfer, and the Company shall periodically reserve such
additional shares of capital stock, if any, as may be necessary to satisfy the
Company's obligations under the Warrants and Equity Rights; provided, however,
that the Equity Rights, the Shares, the Warrants, the Common Stock issuable upon
exercise of the Warrants and any other security directly or indirectly provided
for thereunder (collectively the "SECURITIES") will be subject to applicable
restrictions on transfer under state and/or federal securities laws.
3.5 NO SOLICITATION. None of the Company, any of its affiliates as
defined in Rule 501(b) under the Securities Act of 1933, as amended, (the
"SECURITIES ACT") or any person authorized to act on behalf of any such person
(excluding the Purchasers, as to which no representation is made) has engaged in
any form of general solicitation or general advertising (as such terms are
defined in Rule 502(c) under the Securities Act) in connection with the proposed
offering of the Equity Rights, the Shares and Warrants.
3.6 REPORTS AND FINANCIAL STATEMENTS. The Company has filed all
required registration statements, prospectuses, reports, schedules, forms,
statements and other documents required to be filed by it with the Securities
and Exchange Commission (the "SEC") (collectively, including all exhibits
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thereto, the "COMPANY SEC REPORTS"). None of the Company SEC Reports, as of
their respective dates (and, if amended or superseded by a filing prior to the
date of this Agreement or the Closing Date, then on the date of such filing),
contained any untrue statement of a material fact or omitted or will omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. Each of the financial statements (including the related notes)
included in the Company SEC Reports presents fairly, in all material respects,
the financial position and results of operations and cash flows of the Company
as of the respective dates or for the respective periods set forth therein, all
in conformity with United States generally accepted accounting principles
("GAAP") consistently applied during the periods involved except as otherwise
noted therein, and subject, in the case of the unaudited interim financial
statements, to the absence of notes and normal year-end adjustments that have
not been and are not expected to be material in amount. All of such Company SEC
Reports, as of their respective dates (and as of the date of any amendment to
the respective Company SEC Report), complied as to form in all material respects
with the applicable requirements of the Securities Act and the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder. Except as disclosed in the Company SEC Reports filed prior to the
date hereof, since June 30, 2000, (i) the Company has not incurred any
liabilities that are of a nature that would be required to be disclosed on a
balance sheet of the Company or the footnotes thereto prepared in conformity
with GAAP, other than (x) liabilities incurred in the ordinary course of
business or (y) liabilities that, in the aggregate, would not reasonably be
expected to have a material adverse effect on the Company and (ii) there have
not been any changes, circumstances or events which, in the aggregate, have had,
or would reasonably be expected to have, a material adverse effect on the
Company.
3.7 NO ADDITIONAL FILINGS. To the extent that after the issuance and
delivery of the Securities, Purchasers' control less than 25% of the Company's
issued and outstanding Common Stock, the issuance and delivery of the
Securities, will not, by itself, require Purchasers to make any additional
filings with or deliver any notice to, or to obtain any consent of, any
governmental authority that has issued any mortgage or other regulatory license
to the Company or that otherwise regulates the Company's online business. To the
extent that Purchasers' are required to make any additional filings with or
deliver any notice to, or to obtain any consent of, any governmental authority
that has issued any mortgage or other regulatory license to the Company as a
result of the issuance and delivery of the Securities, regardless of the
percentage of the Company's issued and outstanding Common Stock held by
Purchasers', the parties shall cooperate to satisfy any such requirement and the
Company will indemnify the Purchasers for any expenses, including any fees,
penalties and reasonable attorneys' fees incurred by Purchasers in connection
with satisfying such requirements.
3.8 ACCESS TO INFORMATION. The Company hereby acknowledges that any
information regarding the Company that was provided to the Purchasers in
connection with this Agreement and the transactions contemplated hereby was, at
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such time, available to the public. The Company further acknowledges that under
this Agreement the Purchasers shall not be entitled to receive any information
that is not made generally available to holders of the publicly traded common
stock of the Company.
3.9 ADDITIONAL COVENANTS. In addition to the foregoing, the Company
will be deemed to make to the Purchasers any representations or warranties made
to any person who purchases securities in any Subsequent Event (as defined in
the Equity Rights.) Upon the request of the Purchaser, the Company shall, upon
the closing of any such Subsequent Event, deliver to the Purchaser an Officer's
Certificate to such effect.
SECTION 4
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASERS
The Purchasers hereby represent, warrant and covenant to the Company
with respect to the receipt of the Equity Rights, as follows:
4.1 ACCREDITED INVESTOR; EXPERIENCE; RISK. The Purchasers are
accredited investors within the definition of Regulation D of the Securities
Act. The Purchasers and their representatives have been solely responsible for
the Purchasers' own "due diligence" investigations of the Company and its
management and business, for their own analysis of the merits and risks of the
investment, and for their own analysis of the fairness and desirability of the
terms of the investment. The Purchasers have such knowledge and experience in
financial and business matters that such Purchasers are capable of evaluating
the merits and risks associated with the receipt of the Warrant pursuant to the
Agreement and of protecting the Purchasers' interests in connection therewith.
The Purchasers are able to fend for itself in the transactions contemplated by
this Agreement and have the ability to bear the economic risk of the investment,
including complete loss of the investment. The Purchasers are experienced in
evaluating and investing in relatively early-stage, high-technology companies
such as the Company.
4.2 INVESTMENT. The Purchasers are acquiring the Securities for
investment for their own accounts, not as a nominees or agents, and not with a
view to, or for resale in connection with, any distribution thereof, and the
Purchasers have no present intention of selling, granting any participation in,
or otherwise distributing the same in violation of applicable law. The
Purchasers understand that the Securities, have not been and will not have been
registered under the Securities Act by reason of a specific exemption from the
registration provisions of the Securities Act which depends upon, among other
things, the bona fide nature of the investment intent and the accuracy of each
Purchaser's representations as expressed herein.
4.3 RESTRICTED SECURITIES; RULE 144. The Purchasers understand that the
Securities are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations the Securities may be resold without registration under
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the Securities Act only in certain limited circumstances. The Purchasers
acknowledge that the Securities must be held indefinitely unless subsequently
registered under the Securities Act or an exemption from such registration is
available. The Purchasers are aware of the provisions of Rule 144 promulgated
under the Securities Act, which permit limited resale of shares purchased in a
private placement subject to the satisfaction of certain conditions, including,
among other things, the existence of a public market for the shares, the
availability of certain current public information about the Company, the resale
occurring not less than one (1) year after a party has purchased and paid for
the security to be sold, the sale being effected through a "broker's
transaction" or in transactions directly with a "market maker" (as provided by
Rule 144(f)) and the number of shares being sold during any three (3) month
period not exceeding specified limitations.
4.4 AUTHORIZATION. The Purchasers represent that they have the full
right, power and authority to enter into and perform the Purchasers' obligations
under this Agreement, and this Agreement when executed and delivered by the
Purchasers will constitute a valid and binding obligation of the Purchasers,
enforceable in accordance with its terms, subject to the laws of general
application relating to bankruptcy, insolvency and the relief of debtors, rules
of law governing specific performance, injunctive relief or other equitable
remedies.
4.5 FURTHER LIMITATIONS ON DISPOSITION. Without in any way limiting the
representations set forth above, the Purchasers further agrees not to make any
disposition of all or any portion of the Securities unless and until either:
(a) There is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with such registration statement and the provisions of Section 5.3
hereof; or
(b) The relevant Purchaser shall have notified the Company of
the proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition. If, in the
good faith determination of the General Counsel (and/or outside counsel) of the
Company, there is a reasonable basis for the belief that such disposition would
require registration under the Securities Act, the Company may require that such
Purchaser furnish the Company with an opinion of counsel, reasonably
satisfactory to the Company, that such disposition will not require registration
under the Securities Act.
4.6 LEGENDS. It is understood that each certificate representing the
Securities shall bear a legend in the following form or substantially similar
form (in addition to any legend required under applicable state securities
laws):
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), OR ANY
APPLICABLE STATE SECURITIES LAW AND HAVE BEEN ACQUIRED FOR
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INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE
SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY
BE EFFECTED WITHOUT (A) AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR (B) AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS."
SECTION 5
REGISTRATION RIGHTS
5.1 PIGGYBACK REGISTRATION RIGHTS. If the Company at any time or times
prior to the expiration of the applicable holding period under Rule 144(k) under
the Securities Act determines to prepare and file a ("REGISTRATION STATEMENT")
under the Securities Act (except for a registration statement in connection with
the acquisition of any entity or business or any employee benefit plan,
including any stock option plan, or on Form S-4 or Form S-8 under the Securities
Act or any successor forms thereto) in connection with the proposed offer or
sale of Common Stock, the Company shall give prompt written notice to the
Purchasers of its intention and, subject to Sections 5.2 and 5.3, shall permit
the Purchasers to include in such Registration Statement the Shares, any Common
Stock issuable upon the exercise of the Warrants and any other Common Stock that
constitutes Securities (the "REGISTRABLE SECURITIES"), by providing the
Purchasers with at least ten (10) business days prior written notice of the
Company's intention. At the written request of the Purchasers, given within ten
(10) business days after receipt of the aforementioned notice from the Company,
the Company will use its reasonable best efforts to cause all of the Registrable
Securities for which registration has been requested to be included in such
Registration Statement. The Purchasers shall be entitled to the benefits of
Sections 1.6 and 1.7 of the Registration Rights Agreement dated as of September
20, 1999 among the Company and certain stockholders of the Company, including
the Purchasers.
5.2 UNDERWRITING. Notwithstanding Section 5.1 hereof, if the offering
that is the subject of such Registration Statement is underwritten, in whole or
in part, and the managing underwriter advises the Company that the inclusion of
Registrable Securities proposed to be included in such Registration Statement
would interfere with the successful marketing (including pricing) of the Common
Stock proposed to be registered by the Company, then the number of Registrable
Securities to be included in the underwritten offering may be reduced or
excluded altogether on the same basis as other holders of piggyback or other
similar registration rights with respect to Common Stock, as determined by the
Company in its sole discretion.
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5.3 DELAY PERIOD. Notwithstanding Section 5.1, the Company shall have
the right to suspend the filing, effectiveness or use of any Registration
Statement for a reasonable length of time not to exceed sixty (60) calendar days
(a "DELAY PERIOD") and from time to time if the Company shall determine that
such use (i) would require disclosure by the Company that would materially
interfere with a material financing, merger, sale or acquisition of assets,
recapitalization or other similar corporate action of the Company that is
pending or expected by the Company to occur or be announced during the Delay
Period or (ii) would require pre-mature disclosure of non-public information the
disclosure of which, in the determination of the Company, would be materially
adverse to the Company or with respect to which the Company has a bona fide
business purpose for keeping such information confidential; provided, that the
aggregate number of days in all Delay Periods occurring in any period of twelve
(12) consecutive months shall not exceed ninety (90). The Company shall provide
written notice (to the extent practicable) no fewer than two (2) business days
prior to commencement of a Delay Period and promptly upon the end of any Delay
Period to each holder of Common Stock covered by the Registration Statement and
such holders shall cease all disposition efforts with respect to such shares
immediately upon the beginning of any Delay Period until notified of the end of
such Delay Period.
SECTION 6
MISCELLANEOUS
6.1 GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of the State of New York.
6.2 XXXX-XXXXX-XXXXXX. The Company shall make such filings, take such
other reasonable actions, and otherwise reasonably cooperate with the Purchasers
in order to cause any waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvement Act of 1976, as amended, to expire or otherwise be terminated as
promptly as practicable.
6.3 SURVIVAL. The representations, warranties, covenants and agreements
made in Sections 3 and 4 hereof shall not survive the Closing, except (i) for
(x) the representations, warranties and covenants of the Company set forth in
Sections 3.3 and 3.7 and (y) the covenants of the Purchasers in Section 4.5,
which shall survive for a period of two years from the Closing Date and (ii) for
the covenant of the Company set forth in Section 3.9 which shall survive from
the Closing Date until the expiration of the Exercise Period (as defined in the
Equity Rights) and (iii) any representation or warranty made in connection with
any Subsequent Event (whether such representation or warranty is set forth
herein or is made by the Company pursuant to Section 3.9) that survives the
closing of such Subsequent Event shall also be deemed to survive the Closing for
the benefit of the Purchasers.
6.4 SUBSEQUENT DELIVERIES. At the closing of a Subsequent Financing (as
defined in the Equity Rights) in which the Purchasers elect to exercise their
Equity Rights, the Purchasers shall be entitled to rely on any certificates of
officers of the Company and legal opinion issued by counsel to the Company
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pursuant to such transaction, if any, to the same extent as the purchasers
participating in such transaction.
6.5 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
6.6 ENTIRE AGREEMENT; AMENDMENT. This Agreement and the other documents
delivered pursuant hereto constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof and
supersede and preempt any prior understandings, agreements or representations by
or among the parties, written or oral, which may have related to the subject
matter hereof in any way, including, without limitation, any summary of terms or
similar agreement. Neither this Agreement nor any term hereof may be amended,
waived, discharged or terminated other than by a written instrument signed by
the Company and the Purchasers.
6.7 NOTICES, ETC. Any notice required or permitted pursuant to this
Agreement shall be in writing and shall be deemed sufficient (i) immediately
when delivered personally or by facsimile, (ii) twenty (20) hours after being
deposited with an overnight courier service (e.g. Federal Express) for next day
delivery, or (iii) forty-eight (48) hours after being deposited in the U.S.
mail, as certified or registered mail, with postage prepaid, addressed as
follows:
If to the Purchasers:
Capital Z Partners
00 Xxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention:
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx -Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: R. Xxx Xxxxx, Esq.
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If to the Company:
LendingTree
00000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: CEO
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxxxxxx, Esq.
6.8 DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to the Purchasers, upon any breach or default of the
Company under this Agreement, shall impair any such right, power or remedy of
the Purchasers nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of the Purchasers of any breach or default under this Agreement, or any
waiver on the part of any holder of any provisions or conditions of this
Agreement, must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement or by law or otherwise afforded to the Purchasers, shall be cumulative
and not alternative.
6.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
6.10 SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided, however, that no such severability shall be
effective if it materially changes the economic benefit of this Agreement to any
party.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the day of September, 2000.
"COMPANY" LENDINGTREE, INC.,
By:/s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Chief Executive Officer
"PURCHASERS" CAPITAL Z FINANCIAL SERVICES
FUND II, L.P.
By: Capital Z Partners, L.P., its
sole partner
By: Capital Z Partners, Ltd.,
its sole general partner
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
CAPITAL Z FINANCIAL SERVICES
PRIVATE FUND II, L.P.
By: Capital Z Partners, L.P., its
sole partner
By: Capital Z Partners, Ltd.,
its sole general partner
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Schedule I
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Column A* Column B**
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CAPITAL Z FINANCIAL SERVICES FUND II, L.P. 1,247,292 223,811
CAPITAL Z FINANCIAL SERVICES PRIVATE FUND II, L.P. 6,626 1,189
* The numbers set forth in Column A are the numbers of Shares of Common Stock
issuable to the respective parties upon exercise of the Equity Rights.
** The numbers set forth in Column B are the numbers of shares of Common Stock
issuable upon exercise of the Warrants for which the Equity Rights granted to
such party are initially exercisable.
EXHIBIT A
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EQUITY RIGHTS CERTIFICATE
REPRESENTING THE RIGHT TO RECEIVE SECURITIES
OF LENDINGTREE, INC.
AS SET FORTH HEREIN
THE SECURITIES REPRESENTED BY THIS EQUITY RIGHTS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT") OR ANY
APPLICABLE STATE LAW, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW
TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR
DISPOSITION MAY BE EFFECTED WITHOUT (A) AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR (B) AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
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Date of Issuance: September 29, 2000
LendingTree, Inc., a Delaware corporation (the "COMPANY"), for value
received, hereby certifies that ______________________ [INVESTOR] and its
registered assigns (the "REGISTERED HOLDER"), is entitled, subject to the terms
set forth below, to acquire from the Company, at any time from and following the
date hereof to and including the fifth business day following June 30, 2001 (the
"EXERCISE PERIOD"), the Securities (as hereinafter defined). This Equity Rights
Certificate is being issued pursuant to the Securities Purchase Agreement, dated
as of September 29, 2000 between the Company and the Registered Holder (the
"PURCHASE AGREEMENT").
1. DEFINITIONS.
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"GOING PRIVATE TRANSACTION" means a "Rule 13e-3 transaction" as defined
in Rule 13e-3 under the Securities Exchange Act of 1934, as amended.
"JUNE 30, 2001 VALUE" means (i) if the Common Stock (as hereinafter
defined) is then traded on any national securities exchange or any automated
quotation system, the average closing price rounded to three (3) decimal places
of the Common Stock for the five (5) trading days immediately preceding June 30,
2001 or (ii) if the Common Stock is not then traded on any national securities
exchange or any automated quotation system, the per share fair market value of
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the Common Stock as agreed to by the Company and the Registered Holder or, if
such parties cannot agree, the per share fair market value of the Common Stock
as determined by an independent third party valuation firm mutually acceptable
to the parties.
"SALE TRANSACTION" means (a) any consolidation, reorganization or
merger of the Company with or into any other corporation or other entity or
person, or any other corporate reorganization, in which the Company does not
survive, the Common Stock is modified or converted into any other security or
the stockholders of the Company immediately prior to such consolidation, merger
or reorganization, own less than fifty percent (50%) of the voting power of the
surviving entity or the entity that controls such surviving entity immediately
after such consolidation, merger or reorganization, (b) any transaction or
series of related transactions in which in excess of fifty percent (50%) of the
voting power of the surviving entity or the entity that controls such surviving
entity is transferred, or (c) any sale or other transfer of substantially all of
the assets of the Company.
"SECURITIES" means, at the sole election of the Registered
Holder, either:
(i) (a) ________ fully paid and nonassessable shares of the
Company's common stock, par value $.01 per share (the "COMMON STOCK"), or any
other equity securities that may be issued in addition thereto or in
substitution therefor as provided herein, and (b) a warrant in the form attached
hereto as Exhibit 1, initially exercisable for _______ shares of Common Stock
(the "WARRANT"), with an exercise price of $7.975 per share, or
(ii) (a) if a Subsequent Financing (as hereinafter defined)
occurs during the term hereof but prior to the occurrence of any other
Subsequent Event (as hereinafter defined), subject to the final paragraph of
this definition of "Securities", the type of securities issued to the
investor(s) in such Subsequent Financing (with the number and amount of such
securities issuable upon exercise of this Equity Rights Certificate bearing the
same ratio to $__________ [SUCH INVESTOR'S APPLICABLE PORTION OF THE $10 MILLION
PURCHASE PRICE] (the "Purchase Price") as the number and amount of such
securities issued to the investor(s) in the Subsequent Financing bears to the
total purchase price for such securities paid by such investor(s) in such
Subsequent Financing), (b) if a Sale Transaction occurs during the Exercise
Period but prior to the occurrence of any other Subsequent Event, subject to the
final paragraph of this definition of "Securities", (x) the number of shares of
Common Stock equal to the quotient of the Purchase Price divided by 75% of the
per share price for the Common Stock in such Sale Transaction and (y) the
Warrant, with an Exercise Price equal to 75% of the per share price for the
Common Stock in the Sale Transaction, (c) if a Going Private Transaction occurs
during the Exercise Period but prior to the occurrence of any other Subsequent
Event, subject to the final paragraph of this definition of "Securities", (x)
the number of shares of Common Stock equal to the quotient of the Purchase Price
divided by 75% of the lowest per share price paid to the public holders of
Common Stock in the Going Private Transaction and (y) the Warrant, with an
exercise price per share equal to 75% of the lowest per share price paid to the
public holders of Common Stock in the Going Private Transaction, or (d) if June
30, 2001 occurs and no other Subsequent Event has occurred, (x) the number of
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shares of Common Stock equal to the quotient of the Purchase Price divided by
the June 30, 2001 Value (as hereinafter defined) and (y) the Warrant, with an
exercise price per share equal to the June 30, 2001 Value.
For the purposes above, (i) if the applicable per share price of the
Common Stock in connection with any Sale Transaction or Going-Private
Transaction is paid in any form other than cash, then the applicable per share
price of the Common Stock will be as agreed to by the Company and the Registered
Holder, or if such parties cannot agree, as determined by an independent third
party valuation firm mutually acceptable to the parties and (ii) in the context
of a Sale Transaction involving the sale or other transfer of substantially all
of the assets of the Company, the per share price for the Common Stock in such
transaction will be deemed to be equal to the net proceeds of such transaction
to the Company available for distribution to stockholders divided by the number
of shares of Common Stock outstanding on a fully-diluted basis.
If, as a result of the operation of clause (ii)(a), (ii)(b) or (ii)(c)
above, as applicable, the Registered Holder would receive securities in an
amount that would require approval by the Company's stockholders pursuant to the
rules of the Nasdaq stock market, then the securities to be received by the
Registered Holder pursuant to such applicable clause shall consist of (x)
securities provided for in such applicable clause, up to the maximum amount of
such securities that may be received by the Registered Holder without triggering
such stockholder approval requirement (with the securities that would have been
received by the Registered Holder if not for the operation of this clause (x)
and that, as a result of the operation of this clause (x), are not received by
the Registered Holder, being referred to herein as the "Excluded Securities")
plus (y) shares of a new series of preferred stock (the "New Preferred Stock")
of the Company with an aggregate value at least equal to the value of the
Excluded Securities and with other terms reasonably satisfactory to the
Registered Holder and the Company. Such New Preferred Stock will (A) resemble
shares of Common Stock as closely as is possible without triggering any such
stockholder approval requirement, (B) participate with the Common Stock with
respect to dividends and upon liquidation, (C) not have voting rights (except as
otherwise required by law) and, (D) be convertible into shares of Common Stock
on a one-for-one basis (subject to appropriate adjustments for stock splits,
stock dividends and the like) in the event (but only in the event) that any
necessary stockholder approval for such conversion is obtained. The number of
shares of New Preferred Stock to be issued to the Registered Holder pursuant to
the immediately preceding sentence will be equal to the number of shares of
Common Stock that the Excluded Securities would have represented (on a
fully-converted or fully-exercised basis, as applicable).
"SUBSEQUENT EVENT" means a Subsequent Financing, a Sale
Transaction, a Going Private Transaction, or June 30, 2001.
"SUBSEQUENT FINANCING" means the first sale or issuance
occurring following the date of the Purchase Agreement of the Company's equity
securities (including, but not limited to, securities directly or indirectly
convertible into, exercisable for or exchangeable for such equity securities) in
a financing transaction or series of transactions, which involves an aggregate
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cash consideration in excess of $15,000,000, provided that a Subsequent
Financing shall not include sales or issuances pursuant to (i) the Company's
existing employee benefit plans, (ii) upon the conversion or exchange of
convertible or exchangeable securities outstanding as of the date hereof or
(iii) pursuant to any pending or future acquisition of another entity made by
the Company.
2. EXERCISE.
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(a) This Equity Rights Certificate may be exercised in whole
by the Registered Holder at any time during the Exercise Period by surrendering
this Equity Rights Certificate (together with a written notice specifying the
specific securities described in the definition of "Securities" for which this
Equity Rights Certificate is being exercised, duly executed by such Registered
Holder or by such Registered Holder's duly authorized attorney), at the
principal office of the Company, or at such other office or agency as the
Company may designate. If such written notice of exercise is not delivered prior
to the expiration of the Exercise Period, then this Equity Rights Certificate
shall be deemed to have been exercised, as of the time immediately prior to the
expiration of the Exercise Period, for the securities described in clause ii(d)
of the definition of "Securities."
(b) The Company shall notify the Registered Holder of the
definitive terms of any proposed Subsequent Event as soon as such terms are
agreed upon or as soon as reasonably practicable thereafter. The Registered
Holder shall provide notice of its irrevocable election to exercise its rights
referred to in Section 2(a) above within thirty (30) days of receipt of notice
of such proposed Subsequent Event by the Company; provided, however, that such
election may be revoked in the event that the applicable Subsequent Event fails
to close within a reasonable time following the delivery of such notice of
election by the Registered Holder. The failure of either party to deliver the
notices set forth above shall not impair the Registered Holder's right to
exercise this Equity Rights Certificate during the Exercise Period for any of
the securities described in the definition of "Securities," which it is
otherwise eligible to receive.
(c) The exercise of this Equity Rights Certificate shall be
deemed to have been exercised immediately prior to the close of business on the
day on which this Equity Rights Certificate shall have been surrendered to the
Company as provided in Section 2(a) above (or immediately prior to the close of
business on the day this Equity Rights Certificate is otherwise deemed to be
exercised as provided in Section 2(a), as applicable). At such time (or
thereafter immediately upon termination of any applicable waiting period under
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, if
applicable), the person or persons in whose name or names any securities shall
be issuable upon such exercise as provided in Section 2(d) below shall be deemed
to have acquired such securities and to have become the record owner of such
securities.
(d) As soon as practicable after the exercise of this Equity
Rights Certificate, and in any event within ten (10) days thereafter, the
Company at its expense will cause to be issued in the name of, and delivered to,
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the Registered Holder, or as such Registered Holder (upon payment by such
Registered Holder of any applicable transfer taxes) may direct, a certificate or
certificates (or other documents, as appropriate) representing the securities to
which such Registered Holder shall be entitled.
3. OTHER ADJUSTMENTS.
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(a) STOCK DIVIDENDS, SPLITS, COMBINATIONS, RECLASSIFICATION,
ETC. With respect to any exercise for which the Registered Holder has elected to
receive the securities described in clause (i) of the definition of
"Securities," in the event that the Company shall, at any time on or after the
date of the Purchase Agreement and prior to such exercise, (i) pay a dividend or
make a distribution on its Common Stock, (ii) subdivide shares of its
outstanding Common Stock into a greater number of shares, (iii) combine its
outstanding Common Stock into a smaller number of shares, or (iv) issue any
shares of its capital stock by reclassification of its Common Stock (including
any such reclassification in connection with a consolidation or merger in which
the Company is the continuing corporation), the Registered Holder, in lieu of
any shares of Common Stock which the Registered Holder would otherwise be
entitled to receive upon such exercise, shall be entitled to receive the
aggregate number and kind of shares which, if this Equity Rights Certificate had
been exercised immediately prior to such event, the Registered Holder would have
owned upon such exercise and been entitled to receive by virtue of such
dividend, distribution, subdivision, combination or reclassification.
With respect to any exercise for which the Registered Holder has
elected to receive the securities described in clause (i) of the definition of
"Securities," in case of any reclassification or change of the outstanding
securities of the Company or of any merger, reorganization or consolidation of
the Company (other than a Sale Transaction), causing an adjustment in accordance
with Section 4 below) or any similar corporate reorganization, occurring at any
time on or after the date of the Purchase Agreement and prior to such exercise,
then and in each such case the Registered Holder, upon the exercise hereof at
any time after the consummation of such reclassification, change,
reorganization, merger or conveyance, shall be entitled to receive, in lieu of
any shares of Common Stock otherwise receivable upon the exercise hereof prior
to such consummation, the stock or other securities or property to which such
Registered Holder would have been entitled upon such consummation if such
Registered Holder had exercised this Equity Rights Certificate immediately prior
thereto, all subject to further adjustment as provided in paragraph (a); and in
each such case, the terms of this Section 3 shall be applicable to the shares of
stock or other securities or property receivable upon the exercise of this
Equity Rights Certificate after such consummation.
(b) When any adjustment is required to be made pursuant to
this Section 3, the Company shall promptly mail to the Registered Holder a
certificate setting forth the Securities or other property receivable upon
exercise of this Equity Rights Certificate in a case in which the Registered
Holder elects to receive the securities described in clause (i) of the
definition of "Securities" after such adjustment and setting forth a brief
statement of the facts requiring such adjustment.
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4. SALE TRANSACTION. Simultaneous with the closing of a Sale
Transaction prior to the exercise of this Equity Rights Certificate or the
expiration of the Exercise Period, as applicable, as a result of which the
stockholders of the Company receive cash, stock or other property in respect of
their shares of Common Stock, the surviving entity or acquiring entity, as
applicable, will, at the closing of such Sale Transaction, assume the
obligations of the Company hereunder and this Equity Rights Certificate will
thereafter (during the remainder of the Exercise Period) be exercisable, at the
sole election of the Registered Holder, either (a) for the securities described
in clause (i) of the definition of "Securities" or (b) the securities described
in clause (ii)(b) of the definition of "Securities;" provided, however, that, in
lieu of any shares of Common Stock to be received upon such exercise, the
Registered Holder shall receive the cash, stock or other property that such
Registered Holder would have been entitled to receive as a result of such Sale
Transaction in respect of such shares of Common Stock if the Registered Holder
owned such shares of Common Stock at the time of such Sale Transaction. The
Company shall deliver to the Registered Holder notice of the Sale Transaction no
less than thirty (30) business days before the date scheduled for closing of the
Sale Transaction.
5. TRANSFERS. Neither this Equity Rights Certificate nor any securities
purchased upon exercise of this Equity Rights Certificate may be transferred
unless either (i) such transfer is registered under the Securities Act of 1933
(the "SECURITIES ACT") and any applicable state securities or blue sky laws or
(ii) the transfer is exempt from the prospectus delivery and registration
requirements of the Securities Act and any applicable state securities or blue
sky laws. If a Registered Holder wishes to transfer such securities pursuant to
(ii) above and in the good faith determination of the General Counsel (and/or
outside counsel) of the Company, there is a reasonable basis for the belief that
such transfer would require registration under the Securities Act and/or any
applicable state securities or blue sky laws, the Company may require that the
Registered Holder furnish the Company with an opinion of counsel, reasonably
satisfactory to the Company, that such disposition will not require registration
under the Securities Act and any applicable state securities or blue sky laws.
Upon any transfer of all or a portion of the Equity Rights Certificate in
compliance with this Section 5, the transferee shall be deemed a Registered
Holder.
6. LEGEND. A legend setting forth or referring to the above
restrictions shall be placed on this Equity Rights Certificate, any replacement
hereof and any certificate representing a security issued pursuant to the
exercise hereof, and a stop transfer restriction or order shall be placed on the
books of the Company and with any transfer agent until such securities may be
legally sold or otherwise transferred; provided, however, that such legend shall
not be required and a stop transfer restriction order shall not placed if (i) in
the opinion of counsel to the Registered Holder (reasonably satisfactory to the
Company) registration of any future transfer is not required by the applicable
provisions of the Securities Act, (ii) the Company shall have waived the
requirements of such legends or (iii) the transfer of such security shall be
made in compliance with the requirements of Rule 144(k).
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7. REGISTERED HOLDER ITS OWNER. Except as provided in Section 5 hereto,
the Company may deem and treat the Registered Holder of this Equity Rights
Certificate as the absolute owner hereof for all purposes regardless of any
notice to the contrary.
8. NO IMPAIRMENT. The Company will not, by amendment of its charter or
through reorganization, consolidation, merger, dissolution, sale of assets or
any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms of this Equity Rights Certificate, but will (subject to
Section 16 below) at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Registered Holder of this
Equity Rights Certificate against impairment.
9. NOTICES OF CERTAIN TRANSACTIONS. In case:
-------------------------------
(a) the Company shall take a record of the holders of its
Common Stock (or other stock or securities at the time deliverable upon the
exercise of this Equity Rights Certificate) for the purpose of entitling or
enabling them to receive any dividend or other distribution other than as
described in Section 3, or to receive any right to subscribe for or purchase any
shares of stock of any class or any other securities, or to receive any other
right, to subscribe for or purchase any shares of stock of any class or any
other securities, or to receive any other right, or
(b) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company, any consolidation or merger of the Company with or into
another corporation (other than a consolidation or merger in which the Company
is the surviving entity), or any transfer of all or substantially all of the
assets of the Company, or
(c) of the voluntary or involuntary dissolution, liquidation
or winding-up of the Company, or
(d) of any redemption of the Common Stock,
then, and in each such case, the Company will mail or cause to be mailed to the
Registered Holder of this Equity Rights Certificate a notice specifying, as the
case may be, (i) the date on which a record is to be taken for the purpose of
such dividend, distribution or right and stating the amount and character of
such dividend distribution or right, or (ii) the effective date on which such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation, winding-up, redemption or conversion is to take place, and the
time, if any is to be fixed, as of which the holders of record of Common Stock
shall be entitled to exchange their shares of Common Stock for the securities or
other property deliverable upon such reorganization, reclassification,
consolidation, merger, transfer, dissolution, liquidation, winding-up,
redemption or conversion. Such notice shall be mailed at least ten (10) days
prior to the record date or effective date for the event specified in such
notice.
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10. RESERVATION OF STOCK; TAXES. The Company will at all times reserve
and keep available, solely for the issuance and delivery upon the exercise of
this Equity Rights Certificate, such shares of Common Stock and other stock,
securities and property, as from time to time shall be issuable upon the
exercise of this Equity Rights Certificate. The Company covenants that all
Common Stock that may be issued upon the exercise of rights represented by this
Equity Rights Certificate or upon exercise of the Warrant, if applicable, will,
upon exercise, be fully paid and nonassessable and free from all taxes, liens
and chargers in respect of the issue (other than taxes in respect of any
transfer occurring contemporaneously with such issue.) The Company shall pay all
taxes and any and all United States federal, state and local taxes and other
charges that may be payable in connection with the preparation, issuance and
deliver of the certificates representing Common Stock issued hereunder or
issuable upon exercise of the Warrant, if applicable.
11. EXCHANGE OF EQUITY RIGHTS CERTIFICATE. Upon the surrender by the
Registered Holder of this Equity Rights Certificate, properly endorsed, to the
Company at the principal office of the Company, the Company will, subject to the
provisions of Section 5 hereof, issue and deliver to or upon the order of such
Registered Holder, at the Company's expense, a new Equity Rights Certificate of
like tenor, in the name of such Registered Holder or as such Registered Holder
(upon payment by such Registered Holder of any applicable transfer taxes) may
direct, calling in the aggregate on the face or faces thereof for the number and
type of securities called for in the Equity Rights Certificate so surrendered.
12. REPLACEMENT OF EQUITY RIGHTS CERTIFICATE. Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of this Equity Rights Certificate and (in the case of loss, theft or
destruction) upon delivery of an indemnity agreement (with surety if reasonably
required) in an amount reasonably satisfactory to the Company, or (in the case
of mutilation) upon surrender and cancellation of this Equity Rights
Certificate, the Company will issue, in lieu thereof, a new Equity Rights
Certificate of like tenor.
13. MAILING OF NOTICES. Any notice required or permitted pursuant to
this Equity Rights Certificate shall be in writing and shall be deemed
sufficient (i) immediately when delivered personally or by facsimile, (ii)
twenty (20) hours after being deposited with an overnight courier service (e.g.
Federal Express) for next day delivery, or (iii) forty-eight (48) hours after
being deposited in the U.S. mail, as certified or registered mail, with postage
prepaid, addressed as follows:
If to the Registered Holder
Capital Z Partners
00 Xxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention:
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with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx - Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: R. Xxx Xxxxx, Esq.
If to the Company:
LendingTree
00000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: CEO
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxxxxxx, Esq.
Each of the foregoing parties shall be entitled to specify a different
address by giving five (5) days' advance written notice as aforesaid to the
other parties.
14. NO RIGHTS AS STOCKHOLDER. Until the exercise of this Equity Rights
Certificate, the Registered Holder of this Equity Rights Certificate shall not
have or exercise any rights by virtue hereof as a stockholder of the Company;
and except as otherwise provided herein, no dividend or interest shall be
payable or shall accrue in respect of this Equity Rights Certificate or any
Common Stock that may be issued upon exercise of this Equity Rights Certificate
unless and until this Equity Rights Certificate shall be exercised.
15. NO FRACTIONAL SHARES. No fractional shares of any Common Stock that
may be issued upon exercise of this Equity Rights Certificate will be issued in
connection with any exercise hereunder. In lieu of any fractional shares which
would otherwise be issuable, the Company shall pay cash equal to the product of
such fraction multiplied by the closing price of the Company's Common Stock on
the trading day immediately prior to the date of exercise or, if the Common
Stock is not then traded on any national securities exchange or automated
quotation system, the fair market value of one share of Common Stock as
determined in good faith by the Company's Board of Directors.
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16. AMENDMENT OR WAIVER. This Equity Rights Certificate or any
provision thereof may be changed, waived, discharged or terminated only by a
statement in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought.
17. HEADINGS. The headings in this Equity Rights Certificate are for
purposes of reference only and shall not limit or otherwise affect the meaning
of any provision of this Equity Rights Certificate.
18. GOVERNING LAW. THIS EQUITY RIGHTS CERTIFICATE SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED
BY, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT
OF LAWS.
19. SUCCESSORS AND ASSIGNS. This Equity Rights Certificate shall be
binding upon the Company and inure to the benefit of the Registered Holder and
its successors and assigns.
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IN WITNESS WHEREOF, the Company has executed this Equity Rights
Certificate as of the date first written above.
LendingTree, Inc.
By:
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Name:
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Title:
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