Exhibit 10.1


 


EMPLOYMENT AGREEMENT


 


This Employment Agreement (“Agreement”)
is made and entered into this 31st day of October 2010, by and between
Tree.com, Inc. (“Company”)
and Steven Ozonian (“Executive”).


 


WHEREAS, Executive has substantial expertise in the field of real estate; and


 


WHEREAS, Company desires to secure Executive’s service and expertise in
connection with Company’s business, beginning November 1, 2010 (“Effective Date”);


 


NOW, THEREFORE, in consideration of the premises and the mutual agreements contained
herein, Company and Executive hereby agree as follows:


 


1.     Employment.  Upon the Effective Date, Company shall employ and Executive agrees to be
employed as Chief Executive Officer of the Real Estate Division.   Executive shall do and perform all services
and acts necessary or advisable to fulfill the duties and responsibilities as
are commensurate and consistent with Executive’s position and shall render such
services on the terms set forth herein. 
Further, Executive shall perform such different or other duties as may
be assigned to Executive by Company from time to time by Company’s Chief
Executive Officer, who shall be Executive’s Reporting Officer. Executive will
devote Executive’s full working time and best efforts to the diligent and
faithful performance of such duties as may be entrusted to Executive from time
to time by Company, and shall observe and abide by the corporate policies and
decisions of Company in all business matters. 
Executive’s principal place of employment shall be Orange County,
California; provided, however, that travel to the Company’s offices or places
of business activity may occasionally be required.  Executive acknowledges that the Company may,
in its sole discretion from time to time, non-materially change the Executive’s
responsibilities or his direct / indirect reports and such non-material change
shall not constitute good reason pursuant to Section 5(b).


 


2.     Term.  Executive’s employment shall be governed by the terms of this Agreement
for the period beginning on the Effective Date and continuing through December 31,
2013, unless sooner terminated as provided herein (“Term”).  Executive shall
resign his position as a Director of Company effective as of the Effective
Date.


 


3.     Compensation.  Company shall pay and Executive shall accept as full consideration for
the services to be rendered hereunder, compensation consisting of the items
listed below.  Company shall have no
obligation to pay any such compensation for any period after the termination of
Executive’s employment, except as otherwise expressly provided.


 


(a)         Base Salary. Base salary,
paid pursuant to Company’s normal payroll practices, at an annual rate of three
hundred thousand dollars ($300,000) per year (“Base
Salary”).  All such Base
Salary payments shall be subject to deduction and withholding authorized or
required by applicable law.  For all
purposes under this Agreement, the term “Base Salary” shall refer to the Base
Salary as in effect from time to time.


 

















 


(b)         Annual Bonus.  As recommended by Company’s
Chief Executive Officer and  approved by
the Compensation Committee of the Board of Directors of Company, in its sole
discretion, an annual target bonus in the amount of sixty percent (60%) of the
Base Salary with respect to each fiscal year of Company (each, a “Performance Year”) during the Term,
beginning with the Performance Year beginning on January 1, 2011 (“Annual Bonus”).  The terms and conditions of the Annual Bonus,
including the applicable performance criteria for a Performance Year, and the
amount of the Annual Bonus payable to the Executive for a Performance Year (if
any) shall be recommended by Company’s Chief Executive Officer and  approved by the Compensation Committee of the
Board of Directors of Company, in its sole discretion.  The Annual Bonus will be paid in accordance
with Company’s standard policies and procedures for the payment of annual
bonuses to its other similarly situated employees.


 


(c)         2011 Special Quarterly Bonus.  During 2011, Executive will
receive quarterly payments in the amount of thirty seven thousand and five
hundred dollars ($37,500) within ten (10) days at the start of each
quarter.   If Executive voluntarily
terminates his employment or if Executive is terminated for Cause (as defined
below) prior to December 31, 2011, Executive shall repay to Company within
ten (10) days following his termination date any such quarterly amounts
received.


 


(d)         Equity Incentives.  During the Term, Executive shall be eligible
to receive equity incentives, as determined in the discretion of the Company’s
Compensation Committee (or its delegate), including but not limited to
restricted stock unit awards and/or stock options.  The parties are currently discussing the
terms of such equity incentives.  Upon
hire, Executive will be eligible to receive twenty-five thousand (25,000)
restricted stock units with three (3) year annual vesting subject to the
terms of the Second and Restated Tree.com, Inc. 2008 Stock and Incentive
Plan (“Stock Plan”).   It is anticipated that the parties will
agree on a separate equity plan that will grant the Executive five percent (5%)
equity, or mimic equity, in the increase in value of  Company’s real estate division with a five (5) year
cliff vesting term.  The parties agree
that the value of the Executive’s equity will be equal to five percent (5%) of
the increase in the value of the Company’s real estate division between the
Effective Date and the 5th anniversary thereof.  The equity element will be achieved through
an instrument to be determined such as actual equity interest, phantom stock,
SARs, a cash bonus, a method yet to be identified, or a combination
thereof.  Company will endeavor to obtain
favorable tax treatment for both parties of such plan.  No later than December 31, 2010, the
parties will agree in writing upon the aforementioned equity plan for Executive
which, subject to the discretion of the Company’s Chief Executive Office with
the approval of the Company’s Compensation Committee (or its delegate), shall
be granted to Executive, in accordance with the applicable policies, practices,
terms, and conditions (including but not limited to vesting requirements).  It is agreed by both parties that such equity
plan is a key driver of employee’s motivation to join the company.


 


(e)         Vacation and other Paid Time Off.  During the Term, Executive shall be entitled
to paid vacation and other paid time off each year, in accordance with
applicable plans, policies, programs and practices applicable to similarly
situated employees generally.


 


(f)          Other. 
During the Term, Executive shall be entitled to such
other benefits, payments, or items of compensation as are provided under the
employee benefit plans of the 


 


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Company, or as are made available from time to time
under compensation policies set by Company for management employees of Company
having similar salary and level of responsibility.


 


(g)         Reimbursement.  Company shall reimburse
Executive, in accordance with the general policies and practices of Company as
in effect from time to time, for reasonable, necessary and documented normal
out-of-pocket expenses incurred by Executive in the ordinary course of
business, including without limitation, Company’s standard mileage allowance
for business use of any personal vehicle, business related travel, and
professional organizations.


 


4.     Disability or Death.


 


(a)           Disability.  If at any time during the Term, Executive
incurs a Disability (as defined below), Executive’s employment under this
Agreement shall be immediately terminated as of the date of Executive’s
Disability.  Upon termination of
Executive’s employment due to Disability, Company shall pay Executive, in a
single lump sum cash payment, on the next regularly scheduled payroll date
following the date of such termination, an amount equal to (i) Executive’s
earned but unpaid Base Salary; plus (ii) any Accrued Obligations (as
defined below).   For purposes of this
Agreement, Executive shall be considered to have incurred a “Disability” if Executive has
incurred a permanent and total disability as determined under the Company’s
long-term disability plan applicable to Executive.


 


(b)           Death.  If Executive should die during the Term,
Executive’s employment and Company’s obligations hereunder (other than pro rata
payment of Base Salary) shall terminate as of Executive’s death. In such event,
the Company shall pay the Executive’s estate any Accrued Obligations.  As used in this Agreement, “Accrued Obligations” shall mean the
sum of (i) any portion of Executive’s earned but unpaid Annual Bonus
relating to a previously completed Performance Year, (ii) any compensation
previously earned but deferred by Executive (together with any interest or
earnings thereon) that has not yet been paid and that is not otherwise to be
paid at a later date pursuant to the executive deferred compensation plan of
the Company, if any, and (iii) any reimbursements that Executive is
entitled to receive under paragraph 3(f) of the Agreement.


 


5.     Termination by Company.


 


(a)           Cause.  Company may terminate the employment of
Executive under this Agreement during its Term for Cause. “Cause”
shall include Executive’s fraud, dishonesty, theft, embezzlement, misconduct
injurious to the Company or any of its affiliates, conviction of, or entry of a
plea of guilty or nolo contendere to, a crime that
constitutes a felony or other crime involving moral turpitude, competition with
Company or any of its affiliates, unauthorized use of any trade secrets of
Company or any of its affiliates or Confidential Information (as defined
below), a violation of any policy, code or standard of ethics generally
applicable to employees of the Company, material breach of fiduciary duties
owed to Company, excessive and unexcused absenteeism unrelated to a disability,
or, following written notice and a reasonable opportunity to cure, gross
neglect of the duties assigned to Executive. 
In such event (i) no further Base Salary shall be paid to Executive
after the date of termination, (ii) Executive shall forfeit any earned but
unpaid Annual Bonus relating to a previously completed Performance Year, and (iii) Executive



 


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shall not be eligible to receive any Annual Bonus
relating to the Performance Year in which Executive’s employment terminates
pursuant to this paragraph 5(a). 
Executive shall retain only such rights to participate in other benefits
as are required by the terms of those plans, Company’s polices, or applicable
law.


 


(b)           Termination by Company other than for Death,
Disability or Cause.  Upon
termination of Executive’s employment with Company prior to the expiration of
the Term by Executive for Good Reason or by Company without Cause (other than
for death or Disability) (“Qualifying Termination”),
the Company shall pay Executive the amounts described below. Notwithstanding
the foregoing, Company shall only pay Executive the amounts described in
subparagraph (ii) below if Executive executes and does not revoke a
general release of Company and its affiliates in a form substantially similar
to that used for similarly situated executives of the Company and its
affiliates (“Release of Claims”) and
Executive complies with the restrictive covenants set forth herein.  “Good Reason” shall mean Executive’s voluntary termination of employment with
Company within 120 days following the initial occurrence of any of the
following without Executive’s written consent, subject to the conditions
described below: (a) a material diminution in Executive’s duties or operational
authorities, or a material diminution in the
duties or operational authorities of the Executive’s Reporting Officer, from those in effect immediately following the
Effective Date, excluding for this purpose any such change that is an isolated
and inadvertent action not taken in bad faith and that is remedied by the
Company in accordance with the notice and remedy procedure described below,
that is authorized pursuant to this Agreement, or that is a change in Executive’s
Reporting Officer due to internal restructuring, realignment, or the
resignation, promotion, demotion, or a reorgaization of managers within the
Company, (b) a reduction in Executive’s Base Salary of greater than
twenty-five percent (25%), or (c) a relocation of Executive’s principal
place of business more than 30 miles from Orange County, CA. No Good Reason
shall exist unless Executive provides written notice to the Company within
fifteen (15) days of the occurrence of any event described in (a)-(c) above,
and Company does not remedy such event within sixty (60) days of receipt of
Executive’s written notice of the event.


 


(i)            An amount equal to
all Accrued Obligations within thirty (30) days following the date of such
Qualifying Termination.


 


(ii)           An amount equal to
one (1) year of Executive’s then-current Base Salary, payable in equal
installments on the Company’s regularly scheduled paydays over the one (1) year
period following the date of such Qualifying Termination (“Salary
Continuation Payments”).


 


Notwithstanding
the foregoing, the total amount payable under paragraph 5(b)(ii) shall not
exceed the applicable dollar limit imposed under Treasury Regulation Section 1.409A-1(b)(9)(iii),
or any successor or replacement section thereto.


 


(c)           Notwithstanding the foregoing, if
Executive obtains other permanent employment for services during the period in
which he is receiving Salary Continuation Payments (“Severance
Period”), the Company’s obligation to make future payments to
Executive under subparagraph 5b(ii) above shall be offset against any
compensation 


 


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earned
by Executive as a result of employment with or services provided to a third
party.  Executive agrees to inform the
Company promptly of his employment status and any amounts so earned during the Severance
Period.  Executive acknowledges and
agrees that the payments described in paragraph 5(b)(ii) above constitute
good and valuable consideration for such Release of Claims.


 


6.     Qualifying Termination within One Year Following Change in
Control.  If Executive experiences a Qualifying
Termination within the one-year period following a Change in Control (as
defined in the Stock Plan), the Company shall pay Executive the amounts
described below.  Notwithstanding the
foregoing, Company shall only pay Executive the amounts described in
subparagraph (ii) below if Executive executes and does not revoke a
Release of Claims and Executive complies with the restrictive covenants set
forth herein.


 


(i)            An amount equal to
all Accrued Obligations within thirty (30) days following the date of such
Qualifying Termination.


 


(ii)           An amount equal to
two times Executive’s then-current Base Salary, payable in installments on the
Company’s regularly scheduled paydays over the two (2) year period
following the date of such Qualifying Termination.


 


No amounts payable to Executive pursuant to this
paragraph 6 shall be subject to the mitigation or offset provisions described
in paragraph 5(c) above.


 


Notwithstanding the foregoing, the total amount payable
under paragraph (ii) shall not exceed the applicable dollar limit imposed
under Treasury Regulation Section 1.409A-1(b)(9)(iii), or any successor or
replacement section thereto.


 


7.     Confidential Information and Return of Property.  “Confidential Information”
means any written, oral, or other information
obtained by Executive in confidence from Company, or any of its affiliates,
including without limitation information about their respective operations,
financial condition, business commitments or business strategy, as a result of Executive’s
employment with Company, unless such information is already publicly known
through no fault of any person bound by a duty of confidentiality to Company or
any of its affiliates.  Executive will
not at any time, during or after Executive’s employment with Company, directly
or indirectly disclose Confidential Information to any person or entity other
than authorized officers, directors and employees of Company who have a need to
know such Confidential Information. 
Executive will not at any time, during or after Executive’s employment
with Company, in any manner use Confidential Information on behalf of himself
or any other person or entity other than Company, or accept any position in
which Executive would have a duty to any person to use Confidential Information
against the interests of Company or any of its affiliates.  Upon termination of Executive’s employment
for any reason, Executive will promptly return to Company all property of
Company, including documents and computer files, especially where such property
contains or reflects Confidential Information. 
Nothing in this Agreement shall be interpreted or shall operate to
diminish such duties or obligations of Executive to Company that arise or
continue in effect after the termination of Executive’s employment hereunder,
including without limitation, any such duties or obligations to maintain 


 


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confidentiality or  refrain from
adverse use of any of Company’s trade secrets or other  Confidential
Information that Executive may have acquired in the course of Executive’s
employment.


 


8.     Disclosure and Ownership of Work Related Intellectual
Property.  Executive shall disclose fully to Company any and all intellectual
property (including, without limitation, inventions, processes, improvements to
inventions and processes, and enhancements to inventions and processes, whether
or not patentable, formulae, data and computer programs, related documentation
and all other forms of copyrightable subject matter) that Executive conceives,
develops or makes during the term of Executive’s employment, whether or not
within the original Term, and that in whole or in part result from or relate to
Executive’s work for Company (collectively, “Work
Related Intellectual Property”). 
Any such disclosure shall be made promptly after each item of Work
Related Intellectual Property is conceived, developed or made by Executive,
whichever is sooner.  Executive
acknowledges that all Work Related Intellectual Property that is copyrightable
subject matter and which qualifies as “work made for hire” shall be
automatically owned by Company.  Further,
Executive hereby assigns to Company any and all rights that Executive has or
may have in Work Related Intellectual Property that is copyrightable subject
matter and that, for any reason, does not qualify as “work made for hire.”  If any Work Related Intellectual Property
embodies or reflects any preexisting rights of Executive, Executive hereby
grants to Company an irrevocable, perpetual, nonexclusive, worldwide, and
royalty-free license to use, reproduce, display, perform, distribute copies of
and prepare derivative works based upon such preexisting rights and to
authorize others to do any or all of the foregoing.


 


9.     Restrictive Covenants.


 


(a)           Non-Competition.  In consideration of this Agreement, and other
good and valuable consideration provided hereunder, the receipt and sufficiency
of which are hereby acknowledged by Executive, Executive hereby agrees and
covenants that, during the Term and for a period of twelve (12) months
thereafter (together, the “Restricted Period”),
Executive shall not, without the prior written consent of the Company, directly
or indirectly, engage in or become associated with a Competitive Activity.


 


For purposes of this Agreement, (i) a “Competitive Activity” means any
business or other endeavor involving Similar Products if such business or
endeavor is in a country (including the United States) in which the Company (or
any of its businesses) provides or planned to provide during Executive’s
employment hereunder such Similar Products; (ii) “Similar
Products” means any products or services that are the same (or
substantially the same) as any of the (A) types of products or services
that the online loan origination, online loan brokerage, or online real estate
brokerage businesses of the Company, provides, has provided or planned to
provide during Executive’s employment hereunder or (B) significant types
of products or services that any other business for which Executive has direct
or indirect responsibility hereunder, in each case, provides, has provided or
planned to provide during Executive’s employment hereunder; and (iii) Executive
shall be considered to have become “associated with a Competitive Activity” if
Executive becomes directly or indirectly involved as an owner, principal,
employee, officer, director, independent contractor, representative,
stockholder, financial backer, agent, partner, 


 


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member, advisor, lender, consultant or in any other
individual or representative capacity with any individual, partnership,
corporation or other organization that is engaged in a Competitive
Activity.  For the purposes of this Section 9(a),
the Restricted Period shall be equal to the Term plus a period of six (6) months
thereafter.


 


Notwithstanding the foregoing, Executive may make and
retain investments during the Restricted Period, in less than one percent (5%)
of the outstanding capital stock of any publicly-traded corporation engaged in
a Competitive Activity if the stock of such corporation is either listed on a
national stock exchange or on the NASDAQ Stock Market if Executive is not
otherwise affiliated with such corporation.


 


(b)           Non-Solicitation
of Employees.  Executive recognizes that he will possess Confidential Information about
other employees, and contractors of the Company and its subsidiaries or
affiliates relating to their education, experience, skills, abilities,
compensation and benefits, and inter-personal relationships with suppliers to
and customers of the Company and its subsidiaries or affiliates.  Executive recognizes that the information he
will possess about these other employees, and contractors is not generally
known, is of substantial value to the Company and its subsidiaries or
affiliates in developing their respective businesses and in securing and
retaining customers, and will be acquired by Executive because of Executive’s
position with the Company.  Executive
agrees that, during the Restricted Period, (i) Executive will not,
directly or indirectly, hire or solicit or recruit any employee, or contractor
of Company  and/or any of its
subsidiaries and/or affiliates with whom Executive has had direct contact
during his employment, in all cases, for the purpose of being employed by
Executive or by any business, individual, partnership, firm, corporation or
other entity on whose behalf Executive is acting as an agent, representative or
employee; and (ii) Executive will not convey any such Confidential
Information or trade secrets about employees, and contractors of the Company or
any of its subsidiaries or affiliates to any other person except within the
scope of Executive’s duties hereunder.


 


(c)           Non-Solicitation
of Customers.  During the Restricted Period, Executive shall not solicit any Customers
of Company or encourage (regardless of who initiates the contact) any such
Customers to use the facilities or services of any competitor of the
Company.  For the purposes of this
Agreement, “Customers” means any persons or
entities that purchased products or services from Company within twelve (12)
calendar months of the termination of Executive’s employment.


 


Executive acknowledges that the restrictions,
prohibitions and other provisions herein, including, without limitation, the
Restricted Period, are reasonable, fair and equitable in terms of duration and
scope, are necessary to protect the legitimate business interests of Company,
and are a material inducement to Company to enter into this Agreement.


 


10.  Remedies for Breach. Executive
acknowledges and agrees that a breach of any of the covenants made by Executive
in paragraphs 7, 8, and 9 above would cause irreparable harm to Company or any
of its affiliates for which there would be no adequate remedy at law.  Accordingly, the parties agree that in the
event of any breach or attempted breach by Executive of any of the provisions
of paragraphs 7, 8, and/or 9, Company shall be entitled to institute and
prosecute proceedings at law or in equity with respect to such breach, and, if
successful, to 


 


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recover such costs, expenses, and reasonable attorneys’
fees as may be incurred in connection with such proceedings.  The parties further agree that, to the extent
Company institutes and prosecutes proceedings at law or in equity against
Executive for an  alleged breach, and such  action is unsuccessful, Executive is entitled to recover
such costs, expenses, and reasonable attorneys’ fees as may be incurred in
connection with such proceedings.  If
Executive breaches paragraph 9 above, the duration of the period identified
shall be computed from the date Executive resumes compliance with the covenant
or from the date Company is granted injunctive or other equitable relief by a
court of competent jurisdiction enforcing the covenant, whichever shall first
occur, reduced by the number of days Executive was not in breach of the
covenant after termination of employment, or any delay in filing suit,
whichever is greater.


 


11.  Survival of Obligations.  Executive’s obligations under paragraphs 7, 8, 9, 12, 13, and 19 of this
Agreement shall survive the termination of Executive’s employment and this
Agreement, regardless of the reason for or method of termination.  Each of the provisions in these paragraphs
shall be enforceable independently of every other provision, and the existence
of any claim or cause of action Executive may have against Company, whether
predicated on this Agreement or otherwise, shall not constitute a defense to
the enforcement of these paragraphs of the Agreement by Company.


 


12.  Non-disparagement.  To the maximum extent permitted by law, Executive agrees that Executive
will not disparage or denigrate to any person any aspect of Executive’s present
or past relationship with Company, nor the character of Company, nor Company’s
employees, agents, representatives, products, operating methods, suppliers,
customers, or service providers, whether past, present, or future, and whether
or not based on or with reference to Executive’s relationship with Company.


 


13.  Actions after Termination.  Executive agrees that following Executive’s termination from Company,
regardless of the reason for the termination, Executive will continue to make
himself available for reasonable consultation with Company and Company’s agents
and employees regarding Executive’s prior work for Company.  Such consultation shall include Executive’s
making himself reasonably available for interviews by Company’s counsel,
depositions, and/or appearances before courts or administrative agencies upon
Company’s reasonable request.  Executive
agrees that if Executive is contacted by any government agency with reference
to Company’s business, or by any person contemplating or maintaining any claim
or legal action against Company, or by any agent or attorney of such person,
Executive will promptly notify Company of the substance of Executive’s
communications with such person.  In no
event shall such services exceed twenty percent (20%) of the average level of services
performed by Executive over the 36-month period immediately preceding the date
on which Executive’s employment terminated.


 


14.  Assignment.  Company may assign this Agreement to any other entity acquiring all or
substantially all of the assets or stock of Company or to any other entity into
which or with which Company may be merged or consolidated.  Upon such assignment, merger, or
consolidation, the rights of Company under this Agreement, as well as the obligations
and liabilities of Company hereunder, shall inure to the benefit of and be
binding upon the assignee, successor-in-interest, or transferee of Company and
Company shall have no further obligations or liabilities hereunder.  This Agreement is not assignable in any
respect by Executive.


 


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15.  Notices.  All notices
and other communications under this Agreement shall be in writing and shall be
given by first-class mail, certified or registered with return receipt
requested, or by hand delivery, or by overnight delivery by a nationally
recognized carrier, in each case to the applicable address set forth below, and
any such notice is deemed effectively given when received by the recipient (of
if receipt is refused by the recipient, when so refused):


 


	
  If
  to the Company:

  	
  LendingTree,
  LLC

  
	
   

  	
  11115
  Rushmore Drive

  
	
   

  	
  Charlotte,
  NC 28277

  
	
   

  	
  Attention:
  Legal Dept.

  
	
   

  	
   

  
	
  If
  to Executive:

  	
  At
  the most recent address for Executive on file at the Company.

  



 


Either party may change such party’s address for notices
by notice duly given pursuant hereto.


 


16.  Invalid Provisions.  It is not the intention of either party to violate any public policy, or
any statutory or common law.  If any
sentence, paragraph, clause or combination of the same in this Agreement is in
violation of the law of any State where applicable, such sentence, paragraph,
clause or combination of the same shall be void in the jurisdictions where it
is unlawful, and the remainder of the Agreement shall remain binding on the
parties.  However, the parties agree, and
it is their desire that a court should substitute for each such illegal,
invalid or unenforceable covenant a reasonable and judicially-enforceable
limitation in its place, and that as so modified the covenant shall be as fully
enforceable as if set forth herein by the parties themselves in the modified
form.


 


17.  Entire Agreement; Amendments. 
This Agreement contains the entire agreement of
the parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings, if any, relating to the subject matter hereof.
This Agreement may be amended in whole or in part only by an instrument in
writing setting forth the particulars of such amendment and duly executed by
both parties.


 


18.  Multiple Counterparts.  This Agreement may be executed in two or more counterparts, each of which
will be deemed an original, but all of which together shall constitute one and
the same instrument.


 


19.  Governing Law; Jurisdiction. The
validity, construction, interpretation and enforceability of this Agreement and
the capacity of the parties shall be determined and governed by the laws of the
State of North Carolina, without regard to the conflict of law rules contained
therein.  Any litigation under this
Agreement shall be brought by either party exclusively in Mecklenburg County,
North Carolina.  As such, the parties
irrevocably consent to the jurisdiction of the courts in Mecklenburg County,
North Carolina (whether federal or state) for all disputes related to this
Agreement and irrevocably consent to service via nationally recognized
overnight carrier, without limiting other service methods allowed by applicable
law.  In addition, the parties
irrevocably waive any right to a trial by jury in any action related to this
Agreement.


 


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20.  Taxes.


 


(a)         All payments made under this Agreement shall be subject to Company’s
withholding of all required foreign, federal, state and local income and
employment/payroll taxes, and all payments shall be net of such tax
withholding.  The parties intend that the provisions of this
Agreement shall be exempt from or otherwise comply with the Section 409A
of the Internal Revenue Code of 1986, as amended and the regulations
hereunder (collectively, “Section 409A”)
and all provisions of this Agreement shall be construed in a manner
consistent with the requirements for avoiding taxes or penalties under Section 409A.  If any provision of this Agreement (or
of any payment hereunder) would cause Executive to incur any additional
tax or interest under Section 409A, the parties agree to modify
this Agreement or the timing (but not increase the amount) of any payment to
the extent necessary to comply with Section 409A of the Code and avoid
application of any taxes, penalties, or interest thereunder.  However, in the event that the payments under
the Agreement are subject to any taxes (including, without limitation, those
specified in Section 409A), the Executive shall be solely liable for the
payment of any such taxes.


 


(b)         Notwithstanding anything in this Agreement to the contrary, to the extent
any payment under this Agreement is subject to the requirements of Section 409A
and Executive is a “specified employee” within the meaning of Section 409A,
no payment may be made by reason of Executive’s “separation for service” (as
defined by Section 409A) before the date which is six (6) months
after Executive’s termination date.  Upon
the expiration of that six-month deferral period, all payments deferred
pursuant this Section 21(b) will be distributed to Executive without
interest.  The determination of whether
Executive is a “specified employee” for this purpose shall be made in
accordance with Section 409A.  For
purposes of this Agreement, the terms “termination” and “termination of
employment” (and variations thereof) shall mean Executive’s “separation from
service” within the meaning of Section 409A.


 


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


 


 


	
   

  	
  COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Doug Lebda

  
	
   

  	
   

  	
  Doug Lebda

  
	
   

  	
   

  	
  Chairman & Chief Executive Officer

  
	
   

  	
   

  	
  Tree.com, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  Steven Ozonian

  
	
   

  	
  Steven Ozonian

  



 


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