Exhibit 10.2


 


AMENDED AND RESTATED

EMPLOYMENT AGREEMENT


 


THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (“Agreement”), dated as of October 26,
2010 (the “Agreement Date”), is entered into by and between Douglas R. Lebda (“Employee”)
and Tree.com, Inc. (the “Company”). All capitalized terms used herein
without definition shall have the meaning assigned to them in the Prior
Agreement (as defined below).


 


WHEREAS,
Employee is currently serving as Chairman and Chief Executive Officer of the
Company;


 


WHEREAS,
the Company was formed in connection with the spin-off by IAC/InterActiveCorp (“IAC”)
of its LendingTree and Real Estate financial reporting segments into a separate
publicly-traded company.  For purposes of
this Agreement, “IAC LendingTree” shall mean IAC’s LendingTree and Real Estate
financial reporting segments;


 


WHEREAS,
Employee and the Company are parties to an Employment Agreement, dated January 7,
2008 which has been subsequently amended to reflect the Spin-Off as well as to
make certain other changes (the “Current Agreement”);


 


WHEREAS,
Employee, IAC and IAC LendingTree were parties to an Employment Agreement
(the “Prior Agreement”), dated as of December 14, 2005, which generally
became effective as of the effective date (as that term is defined in the Prior
Agreement), and which has been superseded by the Current Agreement;


 


WHEREAS,
Employee and the Company now wish to amend and restate the Current Agreement to
incorporate all amendments thereto, to make certain conforming changes to
reflect the Spin-Off and to make certain additional changes; and


 


WHEREAS,
in order to effect the foregoing, the Company and Employee wish to enter into
an amended and restated employment agreement on the terms and conditions set
forth below.


 


NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth,
Employee and the Company have agreed and do hereby agree as follows:


 


1A.          EMPLOYMENT.
The Company agrees to employ Employee as Chairman and Chief Executive Officer
as of January 7, 2008 (the “Effective Date”) and Employee accepts and
agrees to such employment.  During
Employee’s employment with the Company, Employee shall perform all services and
acts necessary or advisable to fulfill the duties and responsibilities as are
commensurate and consistent with Employee’s position and shall render such
services on the terms set forth herein. During Employee’s employment with the
Company, Employee shall report to the Board of Directors of the Company.  Employee agrees to devote all of Employee’s
working time, attention and efforts to the Company and to perform the duties of
Employee’s position in accordance with the Company’s policies as in effect from
time to time.


 

















 


Notwithstanding
anything to the contrary above, Employee may serve as a corporate board member
for Eastman Kodak Company and Recyclebank, Inc. (collectively, the “Current
Boards”) and such other organizations (not to exceed four (4) in the
aggregate) as are approved in advance by the Company, provided said service
does not (a) interfere with Employee’s ability to perform his duties for
the Company as contemplated hereunder, and (b) compete with, or present an
actual or apparent conflict of interest for, the Company, which shall be
determined by the Board of Directors the Company, in its sole, good faith
judgment.  The Company acknowledges that
as of the Effective Date, Employee is serving as a corporate board member on
the Current Boards.


 


2A.          TERM
OF AGREEMENT. The term (“Term”) of this Agreement shall commence on the
Effective Date and shall continue through the fifth anniversary of the
Effective Date, unless sooner terminated in accordance with the provisions of Section 1
of the Standard Terms and Conditions attached hereto; provided that certain
terms and conditions herein may specify a greater period of effectiveness.
Employee and the Company will enter into good faith negotiations to extend the
Term no later than six months prior to the end of the Term, provided, that
Employee has provided written notice to the Company between eight and six months
prior to the end of the Term which sets forth his interest in entering into
such negotiations.


 


3A.          COMPENSATION.


 


(a)           BASE SALARY. During the Term, the Company shall pay
Employee an annual base salary of $550,000 (the “Base Salary”) payable in equal biweekly installments or in such
other installments as may be in accordance with the Company’s standard payroll
practices as in effect from time to time. The Base Salary shall be reviewed by
the Company as the Company determines to be appropriate or, if requested by
Employee in writing, no less frequently than annually in a manner consistent
with similarly situated executives of the Company and may be increased but not
decreased. For all purposes under this Agreement, the term “Base Salary” shall
refer to the Base Salary as in effect from time to time.


 


(b)           DISCRETIONARY BONUS. During the Term, Employee
shall be eligible to receive discretionary annual bonuses in a manner
consistent with similarly situated executives of the Company. The Board of
Directors, in consultation with Employee, shall establish performance-based
metrics for determining the amount of the bonus paid to Employee, which metrics
shall be consistent with those established for similarly situated executives of
the Company.


 


(c)           EQUITY COMPENSATION.


 


(i)            Grant of Company Equity Incentives. At the time of the
Spin-Off (or, in the case of the Restricted Preferred Stock (as defined in
subsection (i)(B) below), two days prior to the Spin-Off), Employee was
granted the following equity awards, with the vesting of each of the awards
dependent on the continued service of Employee to the Company through the
vesting term:


 


(A)          An award of stock options (the “Company Options”), giving
Employee the right to acquire 589,850 shares of Company common stock, 


 


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with a per share exercise
price of $8.48.  The Company Options will
be governed by the Second Amended and Restated Tree.com, Inc. 2008 Stock
and Annual Incentive Plan (the “Stock Plan”) and related stock option agreement
and shall vest in full on the fifth anniversary of the Effective Date. In the
event of any conflict or ambiguity between this Agreement and the Stock Plan or
stock option agreement, this Agreement shall control.


 


(B)          In consideration for Employee’s past and future services to
the Company (and its predecessor businesses) and its subsidiaries, restricted
shares of Series A Preferred Stock (the “Restricted Preferred Stock”) of
LendingTree Holdings Corp. (“LT Holdings”), such shares having an aggregate
liquidation preference of $5,000,000 or $1,000 per share (the “Liquidation
Preference”). Employee vested in two-thirds of the shares of Restricted
Preferred Stock on the second anniversary of the Spin-Off and exchanged
2,902.33 of such shares (plus cash related to accrued and unpaid dividends) for
534,900 shares of the Company’s common stock. 
The remaining one-third of the shares of Restricted Preferred Stock will
(1) vest on the third anniversary of the Spin-Off and as otherwise set
forth in the Restated Restricted Share Grant and Shareholders’ Agreement, dated
August 15, 2008 by and among IAC, LT Holdings and Employee, as amended
(the “Restricted Stock Agreement”); (2) be mandatorily redeemable by the
issuer on the fifth anniversary of the date of issuance; (3) accrue
dividends at a rate of 12% of the Liquidation Preference per share per year and
unpaid dividends compound at a rate per annum equal to the dividend rate; and (4) have
such other terms as shall be set forth in the Certificate of Incorporation for
LT Holdings.  In the event of any
conflict or ambiguity between this Agreement and the Restricted Stock
Agreement, this Agreement shall control.


 


(ii)           2009 Equity Awards.  Employee was granted the following equity
awards in 2009:


 


(A)          Effective March 26, 2009, Employee was granted one
hundred seventy-five thousand (175,000) shares of Company restricted common
stock, vesting in four equal installments on the first, second, third, and
fourth anniversary of February 17, 2009.


 


(B)          In addition, on or about April 28, 2009 and Employee’s
employment on such date, Employee was granted one hundred seventy-five thousand
(175,000) shares of Company restricted common stock, vesting in four equal
installments on the first, second, third, and fourth anniversary of February 17,
2009.


 


(C)          Such grants shall be governed by and subject to the terms
of the Stock Plan.


 


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(D)          For purposes of the vesting provisions set forth in Section 1(d) of
the Standard Terms and Conditions, the restricted stock granted under this Section 3A(c)(ii) shall
be considered “Company Restricted Stock.”


 


(iii)          2010 Equity Award.  Employee was granted one hundred fifty
thousand (150,000) shares of Company restricted common stock pursuant to the
Restricted Stock Award Agreement, granted on March 31, 2010, between the
Company and Employee (the “2010 Restricted Stock Award”).  For purposes of the vesting provisions set
forth in Section 1(d) of the Standard Terms and Conditions, the
restricted stock granted pursuant to the 2010 Restricted Stock Award shall be
considered “Company Restricted Stock.”


 


(iv)          Notwithstanding the foregoing and anything to the contrary
in this Agreement or any other agreement pursuant to which Employee has
received, or shall receive in the future, awards of equity from the Company, to
the extent not vested in such equity awards, Employee shall become immediately
100% vested in such equity awards upon the occurrence of a “Change in Control”
(as such term is defined by Section 1(g) of the Standard Terms and
Conditions) and in the case of restricted stock awards, such underlying shares
shall become immediately nonforfeitable and transferable.


 


(d)           BENEFITS. During the Term, Employee shall be
eligible to participate in any welfare, health, life insurance, pension benefit
and incentive plans, programs, policies and practices as may be adopted from
time to time by the Company on the same basis as that provided to similarly
situated employees of the Company generally. Without limiting the generality of
the foregoing, Employee shall be eligible for the following benefits:


 


(i)            Reimbursement for Business
Expenses. During the Term, the Company shall reimburse Employee for
all reasonable and necessary expenses incurred by Employee in performing
Employee’s duties for the Company, on the same basis as similarly situated
employees of the Company generally and in accordance with the Company’s
policies as in effect from time to time.


 


(ii)           Vacation.
During the Term, Employee shall be eligible for paid vacation in accordance
with the plans, policies, programs and practices of the Company applicable to
similarly situated employees of the Company generally. Any accrued vacation
under IAC’s plans, policies, programs and practices shall be rolled over and
continue to be available to Employee upon his becoming subject to the Company’s
plans, policies, programs and practices regarding vacation.


 


4A.          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 hand delivery acknowledged in writing by the recipient
personally, and shall be deemed to have been duly given three days after
mailing or immediately upon duly acknowledged hand delivery, as applicable, to
the respective persons named below:


 


	
  If
  to the Company:

  	
  Tree.com, Inc.

  11115 Rushmore Drive 

  



 


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  Charlotte,
  NC 28277

  
	
   

  	
   

  
	
   

  	
  Attention:
  Senior Vice President of Human Resources

  
	
   

  	
   

  
	
  If
  to the Employee:

  	
  At
  the most recent address on file at the Company.

  



 


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


 


5A.          GOVERNING
LAW, JURISDICTION. This Agreement and the legal relations thus created
between the parties hereto shall be governed by and construed under and in
accordance with the laws of the State of Delaware without reference to the
principles of conflicts of laws. Any and all disputes between the parties which
may arise pursuant to this Agreement will be heard and determined solely before
an appropriate federal court in the State of New York, or, if not maintainable
therein, then in an appropriate New York state court. The parties acknowledge
that such courts have jurisdiction to interpret and enforce the provisions of
this Agreement, and the parties consent to, and waive any and all objections
that they may have as to, personal jurisdiction and/or venue in such courts.


 


6A.          COUNTERPARTS.
This Agreement may be executed in several counterparts, each of which shall be
deemed to be an original but all of which together will constitute one and the
same instrument. Employee expressly understands and acknowledges that the
Standard Terms and Conditions attached hereto are incorporated herein by
reference, deemed a part of this Agreement and are binding and enforceable
provisions of this Agreement. References to “this Agreement” or the use of the
term “hereof’ shall refer to this Agreement and the Standard Terms and
Conditions attached hereto, taken as a whole.


 


7A.          EFFECT ON CURRENT AGREEMENT.  This Agreement constitutes the entire
agreement between the parties, and as of the Agreement Date, restates and
supersedes the Current Agreement.


 


IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed and
delivered by its duly authorized officer and Employee has executed and
delivered this Agreement as of the date set forth above.


 


	
   

  	
  TREE.COM, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Evva Claudette Hampton

  
	
   

  	
  Name:   Evva Claudette Hampton

  
	
   

  	
  Title:  Senior Vice President, Human Resources

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EMPLOYEE

  



 


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  By:

  	
  /s/
  Douglas R. Lebda

  
	
   

  	
  Name:   Douglas R. Lebda

  
	
   

  	
  Title:   Chairman & Chief Executive
  Officer

  



 


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STANDARD TERMS AND CONDITIONS


 


1.             TERMINATION OF EMPLOYEE’S EMPLOYMENT.


 


(a)           DEATH. Upon termination of Employee’s employment
prior to the expiration of the Term by reason of Employee’s death, the Company
shall pay Employee’s designated beneficiary or beneficiaries, within 30 days of
Employee’s death in a lump sum in cash, (i) Employee’s Base Salary from
the date of Employee’s death through the end of the month in which Employee’s
death occurs and (ii) any Accrued Obligations (as defined in Section 1(f) below).


 


(b)           DISABILITY. Upon termination of Employee’s
employment prior to expiration of the Term by reason of Employee’s Disability,
the Company shall pay Employee, within 30 days of such termination in a lump
sum in cash, (i) Employee’s Base Salary from the date of Employee’s
termination of employment due to Disability through the end of the month in
which such termination occurs, offset by any amounts payable to Employee under
any disability insurance plan or policy provided by the Company and (ii) any
Accrued Obligations (as defined in Section 1(f) below). “Disability”
shall mean a condition, resulting from bodily injury or disease, that renders,
and for a six consecutive month period has rendered, Employee unable to perform
substantially the duties pertaining to his employment with the Company. A
return to work of less than 14 consecutive days will not be considered an
interruption in Employee’s six consecutive months of disability. Disability
will be determined by the Company on the basis of medical evidence satisfactory
to the Company.


 


(c)           TERMINATION FOR CAUSE: RESIGNATION BY EMPLOYEE WITHOUT
GOOD REASON. The Company may terminate Employee’s employment under this
Agreement with or without Cause at any time. Upon termination of Employee’s
employment prior to expiration of the Term by the Company for Cause or upon
Employee’s resignation without Good Reason, this Agreement shall terminate
without further obligation by the Company, except for the payment of any
Accrued Obligations (as defined in Section 1(f) below). As used
herein, “Cause” shall mean: (i) the plea of guilty or nolo  contendere
to, or conviction for, a felony offense; provided  however, that
after indictment, the Company may suspend Employee from the rendition of
services, but without limiting or modifying in any other way the Company’s
obligations to Employee under this Agreement; provided, further
that Employee’s employment shall be immediately reinstated if the indictment is
dismissed or otherwise dropped and there is not otherwise grounds to terminate
Employee’s employment for Cause; (ii) a material breach by Employee of a
fiduciary duty owed to the Company; (iii) a material breach by Employee of
any of the covenants made by Employee in Section 2 hereof; or (iv) the
willful or gross neglect by Employee of the material duties required by this
Agreement. Before a cessation of Employee’s employment shall be deemed to be a
termination of Employee’s employment for Cause, (A) the Company shall
provide written notice to Employee that identifies the conduct described in
clauses (ii), (iii) or (iv) above, as applicable, and (B) in the
event that the event or condition is curable, Employee shall have failed to
remedy such event or condition within 30 days after Employee shall have
received the written notice from the Company described above.  As used herein, “Good Reason” shall mean the
occurrence of any of the following without Employee’s written consent, (i) a
material adverse change in Employee’s, title, duties, operational authorities
or reporting responsibilities as they relate to Employee’s position as 


 


7

















 


Chairman and Chief Executive Officer of the Company
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 promptly after receipt
of notice thereof given by the Employee, (ii) a material reduction in
Employee’s annual base salary, (iii) a relocation of Employee’s principal
place of business more than 25 miles from the Charlotte, North Carolina
metropolitan area, or (iv) a material breach by the Company of this
Agreement, excluding for this purpose any such action that is an isolated and
inadvertent action not taken in bad faith and that is remedied by the Company
promptly after receipt of notice thereof given by the Employee.


 


(d)           TERMINATION BY THE COMPANY OTHER THAN FOR DEATH,
DISABILITY OR CAUSE; RESIGNATION BY EMPLOYEE FOR GOOD REASON.  Upon termination of Employee’s employment
with the Company prior to expiration of the Term (i) by the Company
without Cause (other than for death or Disability) or (ii) upon Employee’s
resignation for Good Reason (either such termination, a “Qualifying Termination”),
the Company shall pay Employee the amounts described in clauses (A) and (B) on
the 60th day following Employee’s termination (the “Qualifying Termination
Payment Date”) and take the actions described in clauses (C) and (D);
provided that, payment of the amount described in clause (A) and the
actions described in clauses (C) and (D) shall be conditioned on
Employee’s execution and non-revocation before the Qualifying Termination
Payment Date of a general release of the Company and its affiliates
substantially in the form attached hereto as Exhibit A, and Employee’s
compliance with Sections 2(a) through 2(e):


 


(A) an amount (the “Severance Amount”) equal to
the greater of:


 


(i) the amount of Base Salary (calculated using
Employee’s then-current Base Salary) that Employee would have received had his
employment continued over the period commencing on the date of Employee’s
Qualifying Termination and ending on the earlier of (x) the last day of
the Term or (y) the third anniversary of the date of the Qualifying
Termination, or


 


(ii) one times Employee’s then-current Base
Salary plus Employee’s target annual bonus for the bonus program in effect for
Employee for the year in which Employee’s employment terminates.


 


The Severance Amount shall be paid in substantially
equal payments in accordance with the Company’s normal payroll practices in
effect at the time of Employee’s termination of employment (except as otherwise
required pursuant to Section 10) and shall be payable over the period
commencing on the Qualifying Termination Payment Date and ending on the earlier
of (x) the last day of the Term or (y) three (3) years from the
date of the Qualifying Termination;


 


(B) a lump sum cash payment equal to any
Accrued Obligations;


 


(C) the vesting of all IAC restricted stock
units held by Employee on the Effective Date shall be accelerated in full; and


 


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(D) to the extent previously granted, the
Employee shall be fully vested in the Company Restricted Stock and the Company
Options (as such terms are defined in Section 3A(c) of the Agreement)
that he holds on the termination date and the Company Options shall remain
exercisable for a period of twelve months from the date of such termination.


 


Notwithstanding
the foregoing, in no event shall Employee’s resignation be for Good Reason
unless (x) an event or circumstance set forth in any of clauses (i) through
(iv) of the definition thereof shall have occurred and Employee provides
the Company with written notice thereof within forty-five (45) days after
Employee has knowledge of the occurrence or existence of such event or
circumstance, which notice specifically identifies the event or circumstance
that Employee believes constitutes Good Reason, (y) the Company fails to
correct the circumstance or event so identified within thirty (30) days after
the receipt of such notice, and (z) Employee resigns within ninety (90)
days after the date of delivery of the notice referred to in clause (x) above.


 


(e)           MITIGATION; OFFSET. In the event of a termination
of Employee’s employment prior to the end of the Term, in no event shall
Employee be obligated to seek other employment or take any other action by way
of mitigation of severance benefits or other compensation or benefits. If
Employee obtains other employment during the Term, the amount of any severance
payments to be made to Employee under Section 1(d) hereof after the
date such employment is secured shall be offset by the amount of compensation
earned by Employee from such employment through the end of the Term. For
purposes of this Section 1(e), Employee shall have an obligation to inform
the Company promptly regarding Employee’s employment status following
termination and during the period encompassing the Term.


 


(f)            ACCRUED OBLIGATIONS. As used in this Agreement, “Accrued
Obligations” shall mean the sum of (i) any portion of Employee’s accrued
but unpaid Base Salary through the date of death or termination of employment
for any reason, as the case may be; (ii) any compensation previously
earned but deferred by Employee (together with any interest or earnings
thereon) that has not yet been paid, (iii) any reasonable and necessary
business expenses incurred by Employee prior to the date of termination of
employment but not yet reimbursed and (iv) any benefits earned by Employee
but unpaid or unused at the date of termination of employment provided that the
payout of these benefits is consistent with the plans, policies, programs and
practices of the Company at the date of termination of employment.


 


(g)           QUALIFYING TERMINATION WITHIN ONE YEAR FOLLOWING CHANGE
IN CONTROL.  If Employee experiences
a Qualifying Termination within the one-year period following a Change in
Control (as defined below), the Company shall pay Employee the amounts
described in clauses (A) and (B) on the 60th day following Employee’s
termination (the “Change in Control Payment Date”) and take the actions
described in clauses (C) and (D); provided that, payment of the amount
described in clause (A) and the actions described in clauses (C) and (D) shall
be conditioned on Employee’s execution and non-revocation before the Change in
Control Payment Date of a general release of the Company and its affiliates
substantially in the form attached hereto as Exhibit A, and Employee’s
compliance with Sections 2(a) through 2(e):


 


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(A) an amount equal to three (3) times
Employee’s then-current Base Salary payable over the period commencing on the
Change in Control Payment Date and ending on the earlier of (i) the last
day of the Term or (ii) three (3) years from the date of the
Qualifying Termination, and paid in substantially equal payments in accordance
with the Company’s normal payroll practices in effect at the time of Employee’s
termination of employment (except as otherwise required pursuant to Section 10);


 


(B) a lump sum cash payment equal to any
Accrued Obligations;


 


(C) the vesting of all IAC restricted stock
units held by Employee on the Effective Date shall be accelerated in full; and


 


(D) to the extent previously granted, the
Employee shall be fully vested in the Company Restricted Stock and the Company
Options (as such terms are defined in Section 3A(c) of the Agreement)
that he holds on the termination date and the Company Options shall remain
exercisable for a period of twelve months from the date of such termination.


 


Notwithstanding
the foregoing, in no event shall Employee’s resignation be for Good Reason
unless the requirements of Section 1(d)(x) through Section 1(d)(z) are
met with respect to such resignation.


 


For
purposes of this Section 1(g), the term “Change in Control” has the
meaning set forth in the Stock Plan.


 


Further,
no amounts payable to Employee pursuant to this Section 1(g) shall be
subject to the mitigation or offset provisions described in Section 1(e) of
these Standard Terms and Conditions.


 


2.             CONFIDENTIAL INFORMATION; NON-COMPETE;
NON-SOLICITATION; AND PROPRIETARY RIGHTS.


 


(a)           CONFIDENTIALITY. Employee acknowledges that while
employed by the Company, Employee will occupy a position of trust and
confidence. Employee shall not, except as may be required to perform Employee’s
duties hereunder or as required by applicable law, disclose to others or use,
whether directly or indirectly, any Confidential Information. “Confidential
Information” shall mean information about the Company or any of its
subsidiaries or affiliates, and their clients and customers that is not
disclosed by the Company or any of its subsidiaries or affiliates for financial
reporting purposes and that was learned by Employee in the course of employment
with the Company or any of its subsidiaries or affiliates, including without
limitation any proprietary knowledge, trade secrets, data, formulae,
information and client and customer lists and all papers, resumes, and records
(including computer records) of the documents containing such Confidential
Information. Employee acknowledges that such Confidential Information is
specialized, unique in nature and of great value to the Company and its
subsidiaries or affiliates, and that such information gives the Company and its
subsidiaries or affiliates a competitive advantage. Employee agrees to deliver
or return to the Company, at the Company’s request at any time or upon
termination or expiration of Employee’s employment or as soon thereafter as
possible, all documents, computer tapes and disks, records, lists, data,
drawings, prints, notes and written information (and all copies thereof)
furnished by the


 


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Company and its subsidiaries or affiliates or
prepared by Employee in the course of Employee’s employment by the Company and
its subsidiaries or affiliates. As used in this Agreement, “affiliates” shall
mean any company controlled by, controlling or under common control with the
Company.


 


(b)           NON-COMPETITION. During the Term and for a period
of 24 months beyond Employee’s date of termination of employment for any reason
following the date hereof (the “Restricted Period”), Employee 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 Section 2(b): (i) a “Competitive Activity” means any business or
other endeavor, in any state of the United States or a comparable jurisdiction
in Canada or any other country, involving products or services that are the
same or similar to the type of products or services that the Company is engaged
in providing both (x) as of the date hereof or at any time during the Term
and (y) at any time during the twelve (12) month period preceding Employee’s
termination of employment, and (ii) Employee shall be considered to have
become “associated with a Competitive Activity” if Employee becomes directly or
indirectly involved as an owner, principal, employee, officer, director,
independent contractor, representative, stockholder, financial backer, agent,
partner, member, advisor, lender, or in any other individual or representative
capacity with any individual, partnership, corporation or other organization
that is engaged in a Competitive Activity. Notwithstanding the foregoing, (i) Employee
may make and retain investments during the Restricted Period, for investment
purposes only, in less than one percent (1%) 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 National Market System if Employee is not otherwise affiliated with
such corporation and (ii) Employee may become employed by a partnership,
corporation or other organization that is engaged in a Competitive Activity so
long as Employee has no direct or indirect responsibilities or involvement in
the Competitive Activity.  Notwithstanding
the foregoing and exclusively with respect to Employee’s termination of
employment pursuant to Section 1(g), the Restricted Period shall be
reduced from 24 months to 12 months following Employee’s date of termination,
solely to the extent applicable to Competitive Activity unrelated to online
lending.


 


(c)           NON-SOLICITATION OF EMPLOYEES. During the
Restricted Period, Employee shall not, without the prior written consent of the
Company, directly or indirectly, hire or recruit or solicit the employment or
services of (whether as an employee, officer, director, agent, consultant or
independent contractor), any employee, officer, director, agent, consultant or
independent contractor of the Company or any of its subsidiaries or affiliates
(except for such employment or hiring by the Company or any of its subsidiaries
or affiliates); provided, however that this Section 2(c) shall not
apply to any hiring which results solely from a general solicitation of
employment that was not directed to employees of the Company or any of its
subsidiaries or affiliates. Notwithstanding the foregoing and exclusively with
respect to Employee’s termination of employment pursuant to Section 1(g),
the Restricted Period shall be reduced from 24 months to 12 months following
Employee’s date of termination, solely to the extent applicable to Competitive
Activity unrelated to online lending.


 


(d)           NON-SOLICITATION OF BUSINESS PARTNERS. During the
Restricted Period, Employee shall not, without the prior written consent of the
Company, directly 


 


11

















 


or indirectly, solicit, attempt to do business with,
or do business with any business partners or business affiliates of the Company
or any of its subsidiaries or those affiliates of the Company that are engaged
in a Competitive Activity, or encourage (regardless of who initiates the
contact) any such business partners or business affiliates to use the services
of any competitor of the Company, its subsidiaries or affiliates. Notwithstanding
the foregoing and exclusively with respect to Employee’s termination of
employment pursuant to Section 1(g), the Restricted Period shall be
reduced from 24 months to 12 months following Employee’s date of termination,
solely to the extent applicable to Competitive Activity unrelated to online
lending.


 


(e)           PROPRIETARY RIGHTS; ASSIGNMENT. All Employee
Developments shall be made for hire by Employee for the Company or any of its
subsidiaries or affiliates. “Employee Developments” means any idea, discovery, invention,
design, method, technique, improvement, enhancement, development, computer
program, machine, algorithm or other work or authorship that (i) relates
to the business or operations of the Company or any of its subsidiaries or
affiliates, or (ii) results from or is suggested by any undertaking
assigned to the Employee or work performed by the Employee for or on behalf of
the Company or any of its subsidiaries or affiliates, whether created alone or
with others, during or after working hours. All Confidential Information and
all Employee Developments shall remain the sole property of the Company or any
of its subsidiaries or affiliates. The Employee shall acquire no proprietary
interest in any Confidential Information or Employee Developments developed or
acquired during the Term. To the extent the Employee may, by operation of law
or otherwise, acquire any right, title or interest in or to any Confidential
Information or Employee Development, the Employee hereby assigns to the Company
all such proprietary rights. The Employee shall, both during and after the
Term, upon the Company’s request, promptly execute and deliver to the Company
all such assignments, certificates and instruments, and shall promptly perform
such other acts, as the Company may from time to time in its discretion deem
necessary or desirable to evidence, establish, maintain, perfect, enforce or
defend the Company’s rights in Confidential Information and Employee
Developments.


 


(f)            COMPLIANCE WITH POLICIES AND PROCEDURES. During
the Term, Employee shall adhere to the policies and standards of
professionalism set forth in the Company’s policies and procedures as they may
exist from time to time.


 


(g)           REMEDIES FOR BREACH. Employee expressly agrees and
understands that Employee will notify the Company in writing of any alleged
breach of this Agreement by the Company, and the Company will have 30 days from
receipt of Employee’s notice to cure any such breach.


 


Employee
expressly agrees and understands that the remedy at law for any breach by Employee
of this Section 2 will be inadequate and that damages flowing from such
breach are not usually susceptible to being measured in monetary terms.
Accordingly, it is acknowledged that upon Employee’s violation of any provision
of this Section 2, in addition to any remedy that the Company may have at
law, the Company shall be entitled to obtain from any court of competent
jurisdiction immediate injunctive relief and obtain a temporary order
restraining any threatened or further breach as well as an equitable accounting
of all profits or benefits arising out of such violation. Nothing in this Section 2
shall be deemed to limit the Company’s remedies 


 


12

















 


at
law or in equity for any breach by Employee of any of the provisions of this Section 2,
which may be pursued by or available to the Company.


 


(h)           SURVIVAL OF PROVISIONS. The obligations contained
in this Section 2 shall, to the extent provided in this Section 2,
survive the termination or expiration of Employee’s employment with the Company
and, as applicable, shall be fully enforceable thereafter in accordance with
the terms of this Agreement. If it is determined by a court of competent
jurisdiction in any state that any restriction in this Section 2 is excessive
in duration or scope or is unreasonable or unenforceable under the laws of that
state, it is the intention of the parties that such restriction may be modified
or amended by the court to render it enforceable to the maximum extent
permitted by the law of that state. If any of the covenants of this Section 2
are determined to be wholly or partially unenforceable in any jurisdiction,
such determination shall not be a bar to or in any way diminish the rights of
the Company or its affiliates, as applicable, to enforce any such covenant in
any other jurisdiction.


 


3.             WAIVER OF PRIOR AGREEMENTS. This Agreement
constitutes the entire agreement between the parties, and Employee acknowledges
that he has waived, effective as of the Effective Date, any and all rights
under prior agreements and understandings (whether written or oral) between
Employee and IAC LendingTree or IAC with respect to the subject matter of this
Agreement, other than the Shares Agreement, as modified by the Prior Agreement,
and the provisions of the Prior Agreement referred to in Section 3A(c)(i).
In addition, Employee acknowledges that notwithstanding the foregoing, Employee
shall continue to be subject to those terms of the Prior Agreement which
survive the termination of such agreement, and those restrictive covenants in
the Prior Agreement that begin to run from Employee’s date of termination,
shall run from the Effective Date concurrently with any similar covenants
contained herein. Employee acknowledges and agrees that neither the Company nor
anyone acting on its behalf has made, and is not making, and in executing this
Agreement, the Employee has not relied upon, any representations, promises or
inducements except to the extent the same is expressly set forth in this
Agreement.


 


4.             ASSIGNMENT; SUCCESSORS. This Agreement is
personal in its nature and none of the parties hereto shall, without the
consent of the others, assign or transfer this Agreement or any rights or
obligations hereunder; provided that, in the event of a merger, consolidation,
transfer, reorganization, or sale of all, substantially all or a substantial
portion of the assets of the Company with or to any other individual or entity,
this Agreement shall, subject to the provisions hereof, be binding upon and
inure to the benefit of such successor and such successor (including the
Company upon assignment of this Agreement) shall discharge and perform all the
promises, covenants, duties, and obligations of the Company hereunder, and all
references herein to the “Company” shall refer to such successor.


 


5.             WITHHOLDING. The Company shall make such
deductions and withhold such amounts from each payment and benefit made or
provided to Employee hereunder, as may be required from time to time by
applicable law, governmental regulation or order.


 


6.             HEADING REFERENCES. Section headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose. References to “this
Agreement” or the use of the term “hereof’ shall refer to these 


 


13

















 


Standard Terms and Conditions and the Employment
Agreement attached hereto, taken as a whole.


 


7.             WAIVER; MODIFICATION. Failure to insist upon
strict compliance with any of the terms, covenants, or conditions hereof shall
not be deemed a waiver of such term, covenant, or condition, nor shall any
waiver or relinquishment of, or failure to insist upon strict compliance with,
any right or power hereunder at any one or more times be deemed a waiver or
relinquishment of such right or power at any other time or times. This
Agreement shall not be modified in any respect except by a writing executed by
each party hereto.


 


8.             SEVERABILITY. In the event that a court of
competent jurisdiction determines that any portion of this Agreement is in
violation of any law or public policy, only the portions of this Agreement that
violate such law or public policy shall be stricken. All portions of this
Agreement that do not violate any statute or public policy shall continue in
full force and effect. Further, any court order striking any portion of this
Agreement shall modify the stricken terms as narrowly as possible to give as
much effect as possible to the intentions of the parties under this Agreement.


 


9.             INDEMNIFICATION. The Company shall indemnify and
hold Employee harmless for acts and omissions in Employee’s capacity as an
officer, director or employee of the Company to the maximum extent permitted
under applicable law; provided, however that neither the Company,
nor any of its subsidiaries or affiliates shall indemnify Employee for any
losses incurred by Employee as a result of acts that would constitute Cause
under Section 1(c) of this Agreement. This Section 9 shall
survive the termination or expiration of Employee’s employment with the Company
and, as applicable, shall be fully enforceable thereafter in accordance with
the terms of this Agreement.


 


10.          SECTION 409A OF THE CODE. The benefits provided
under this Agreement shall comply with Section 409A of the Code and the
regulations thereunder. To the extent so required in order to comply with Section 409A
of the Code, (i) amounts and benefits to be paid or provided under this
Agreement shall be paid or provided to Employee, in a single lump sum on the
first business day after the date that is six months following the date of
termination of Employee’s employment or shall begin six months and one day
following the date of termination, and (ii) the Company and Employee agree
to amend or modify this Agreement and any agreements relating hereto (including
any award agreement with respect to equity compensation described in Section 3A(c))
as may be necessary to comply with Section 409A of the Code. For purposes
of this Agreement, the terms “termination” and “termination of employment” (and
variations thereof) shall mean Employee’s “separation from service” within the
meaning of Section 1.409A-1(h) of the Treasury Regulations
promulgated under Section 409A of the Code, applying the default terms thereof.


 


14

















 


ACKNOWLEDGED
AND AGREED:


 


Date:     October 26,
2010


 


	
   

  	
  TREE.COM, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Evva Claudette Hampton

  
	
   

  	
  Name:
  Evva Claudette Hampton

  
	
   

  	
  Title:
  Senior Vice President, Human Resources

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EMPLOYEE

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Douglas R. Lebda

  
	
   

  	
  Name:
  Douglas R. Lebda

  
	
   

  	
  Title:
  Chairman & Chief Executive Officer

  



 


15

















 


EXHIBIT A


 


FORM OF RELEASE AGREEMENT


 


This
Release Agreement (“Release”) is entered into as of this
             day of
                  ,
hereinafter “Execution Date”, by and between [Employee Full Name] (hereinafter “Employee”),
and Tree.com, Inc. (hereinafter, the “Company”). The Employee and the
Company are sometimes collectively referred to as the “Parties”.


 


1.                                      The Employee’s
employment with the Company is terminated effective [Month, Day, Year]
(hereinafter “Termination Date”). The Parties have agreed to avoid and resolve
any alleged existing or potential disagreements between them arising out of or
connected with the Employee’s employment with the Company including the
termination thereof. The Company expressly disclaims any wrongdoing or any
liability to the Employee.


 


2.                                      The Company
agrees to provide the Employee the severance benefits provided for in Section [1(d)][1(g)]
of his/her Employment Agreement (the “Severance Benefits”) with the Company,
dated as of [ ], after he/she executes this Release [FOR 40+ and does not
revoke it as permitted in Section 8 below, the expiration of such revocation
period being the “Effective Date”)].


 


3.                                      Employee
represents that he/she has not filed, and will not file, any complaints,
lawsuits, administrative complaints or charges relating to her employment with,
or resignation from, the Company, excluding any action to enforce the
Employment Agreement as it relates to the provision of the Severance Benefits
or to Sections 3A(d) or 9[; provided, however, that nothing
contained in this Section 3 shall prohibit you from bringing a claim to
challenge the validity of the ADEA Release in Section 8 herein]. Employee
agrees to release the Company, its subsidiaries, affiliates, and their
respective parents, direct or indirect subsidiaries, divisions, affiliates and
related companies or entities, regardless of its or their form of business
organization, any predecessors, successors, joint ventures, and parents of any
such entity, and any and all of their respective past or present shareholders,
partners, directors, officers, employees, consultants, independent contractors,
trustees, administrators, insurers, agents, attorneys, representatives and
fiduciaries, including without limitation all persons acting by, through, under
or in concert with any of them (collectively, the “Released Parties”), from any
and all claims, charges, complaints, causes of action or demands of whatever
kind or nature that Employee now has or has ever had against the Released
Parties, whether known or unknown, arising from or relating to Employee’s
employment with or discharge from the Company, including but not limited to:
wrongful or tortious termination; constructive discharge; implied or express
employment contracts and/or estoppel; discrimination and/or retaliation under
any federal, state or local statute or regulation, specifically including any
claims Employee may have under the Fair Labor Standards Act, the Americans with
Disabilities Act, Title VII of the Civil Rights Act of 1964 as amended, and the
Family and Medical Leave Act; the discrimination or other employment laws of
the State of [          ](1); any claims
brought under any federal or state statute or regulation for 


 






(1)  Insert state of employment.


 


16

















 


non-payment
of wages or other compensation, including grants of stock options or any other
equity compensation; and libel, slander, or breach of contract other than the
breach of this Release. This Release specifically excludes claims, charges,
complaints, causes of action or demand that post-date the Termination Date [or
the Effective Date, whichever is later].


 


4.                                      Employee agrees
to keep the fact that this Release exists and the terms of this Release in
strict confidence except to his/her immediate family and his/her financial and
legal advisors on a need-to-know basis.


 


5.                                      Employee warrants
that no promise or inducement has been offered for this Release other than as
set forth herein and that this Release is executed without reliance upon any
other promises or representations, oral or written. Any modification of this
Release must be made in writing and be signed by Employee and the Company.


 


6.                                      Employee will
direct all employment verification inquiries to [HR Rep]. In response to
inquiries regarding Employee’s employment with the Company, the Company by and
through its speaking agent(s) agrees to provide only the following
information: Employee’s date of hire, the date her employment ended and rates
of pay.


 


7.                                      If any
provision of this Release or compliance by Employee or the Company with any
provision of the Release constitutes a violation of any law, or is or becomes
unenforceable or void, then such provision, to the extent only that it is in
violation of law, unenforceable or void, will be deemed modified to the extent
necessary so that it is no longer in violation of law, unenforceable or void,
and such provision will be enforced to the fullest extent permitted by law. If
such modification is not possible, such provision, to the extent that it is in
violation of law, unenforceable or void, will be deemed severable from the
remaining provisions of this Release, which provisions will remain binding on
both Employee and the Company. This Release is governed by, and construed and
interpreted in accordance with the laws of the State of [   ], without regard to principles of conflicts
of law. Employee consents to venue and personal jurisdiction in the State of [  ] for disputes arising under this Release.
This Release represents the entire understanding with the Parties with respect
to subject matter herein, no oral representations have been made or relied upon
by the Parties.


 


8.                                      [FOR EMPLOYEES
OVER 40 ONLY — In further recognition of the above, Employee hereby releases
and discharges the Released Parties from any and all claims, actions and causes
of action that he/she may have against the Released Parties, as of the date of
the execution of this Release, arising under the Age Discrimination in
Employment Act of 1967, as amended (“ADEA”), and the applicable rules and
regulations promulgated thereunder. The Employee acknowledges and understands
that ADEA is a federal statute that prohibits discrimination on the basis of
age in employment, benefits and benefit plans. Employee specifically agrees and
acknowledges that: (A) the release in this Section 8 was granted in
exchange for the receipt of consideration that exceeds the amount to which
he/she would otherwise be entitled to receive upon termination of his/her
employment; (B) his/her waiver of rights under this Release is knowing and
voluntary as required under the Older Workers Benefit Protection Act; (B) that
he/she has 


 


17

















 


read
and understands the terms of this Release; (C) he/she has hereby been
advised in writing by the Company to consult with an attorney prior to
executing this Release; (D) the Company has given him/her a period of up
to twenty-one (21) days within which to consider this Release, which period
shall be waived by the Employee’s voluntary execution prior to the expiration
of the twenty-one day period; and (E) following his/her execution of this
Release he/she has seven (7) days in which to revoke his/her release as
set forth in this Section 8 only and that, if he/she chooses not to so
revoke, the Release in this Section 8 shall then become effective and
enforceable and the payment listed above shall then be made to his/her in
accordance with the terms of this Release. To cancel this Release, Employee
understands that he/she must give a written revocation to the General Counsel
of the Company at [  ](2),either by hand
delivery or certified mail within the seven-day period. If he/she rescinds the
Release, it will not become effective or enforceable and he/she will not be
entitled to any benefits from the Company.]


 


9.                                      EMPLOYEE
ACKNOWLEDGES AND AGREES THAT HE/SHE HAS CAREFULLY READ AND VOLUNTARILY SIGNED
THIS RELEASE, THAT HE/SHE HAS HAD AN OPPORTUNITY TO CONSULT WITH AN ATTORNEY OF
HIS/HER CHOICE, AND THAT HE/SHE SIGNS THIS RELEASE WITH THE INTENT OF RELEASING
THE COMPANY, ITS AFFILIATES, SUBSIDIARIES AND THEIR RESPECTIVE
SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM ANY AND ALL
CLAIMS.


 


	
  ACCEPTED
  AND AGREED TO:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  [Company
  Name]

  	
   

  	
  [Employee
  Full Name]

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
  Dated:

  	
   

  
						



 






(2) 
Insert address.


 


18