Exhibit 10.16


 


 


EMPLOYMENT
AGREEMENT


 


                                                THIS EMPLOYMENT
AGREEMENT (“Agreement”) is entered into by and between Matt Packey (“Executive”)
and LendingTree, LLC, a Delaware limited liability company (the “Company”), and
is effective as of August 3, 2008 (the “Effective Date”).


 


                                                WHEREAS, the
Company desires to establish its right to the services of Executive, in the
capacity described below, on the terms and conditions hereinafter set forth,
and Executive is willing to accept such employment on such terms and conditions.


 


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


 


1.                                       EMPLOYMENT.  During the Term (as defined below), the
Company shall employ Executive, and Executive shall be employed, as Senior Vice
President and Chief Financial Officer of the Company.  During Executive’s employment with the
Company, Executive shall do and perform all reasonable 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. 
During Executive’s employment with the Company, Executive shall report
directly and solely to the Chief Executive Officer of the Company (hereinafter
referred to as the “Reporting Officer”). 
Executive shall have such powers and duties with respect to LendingTree
as may reasonably be assigned to Executive by the Reporting Officer, to the
extent consistent with Executive’s position. 
Executive agrees to devote all of Executive’s working time, attention
and efforts to LendingTree and to perform the duties of Executive’s position in
accordance with Company reasonable policies applicable to all employees of the
Company and its subsidiaries and/or affiliates, as well as LendingTree’s
reasonable policies (or the policies of such other businesses for which
Executive has direct or indirect responsibility under this Agreement) as in
effect from time to time.  Executive’s principal
place of employment shall be the principal offices of LendingTree, located in
Charlotte, North Carolina; provided, however, that travel to the Company’s
other offices in Jacksonville or Irvine may occasionally be required.  Executive acknowledges that the Company may,
in its sole discretion from time to time, change the Executive’s
responsibilities or his direct / indirect reports without any effect hereunder,
provided, that Executive shall be responsible for managing substantially all of
the Company’s accounting, auditing, or other financial management functions as
they currently exist.


 


2.                                       TERM.  The term of this Agreement, which shall
commence on the Effective Date, shall continue until and
including June 30, 2010 (the “Term”) unless terminated earlier as set
forth in the Standard Terms and Conditions; provided, that certain provisions
herein may specify a greater period of effectiveness.


 


3.                                       COMPENSATION.


 


                                                (a)                                  BASE SALARY.  During the period that Executive is employed
with the Company hereunder, the Company shall pay Executive an annual base
salary of $312,500 (the 




 


 

















 


 


“Base Salary”), payable in equal biweekly
installments (or, if different, in accordance with the Company’s payroll
practice as in effect from time to time), or such higher salary as shall be
agreed to in writing by Executive and the Company from time to time.  Nothwithstanding the foregoing, if the
proposed spin-off of the Company from IAC/InterActive Corp does not occur on or
prior to September 30, 2008, Executive’s Base Salary shall be immediately
reduced to $285,000, but shall thereafter be increased to $312,500 if the
spin-off occurs after September 30, 2008. 
For all purposes under this Agreement, the term “Base Salary” shall
refer to the Base Salary as in effect from time to time.  Upon the Executive’s request, the Company and
Executive agree to review and discuss the Executive’s Base Salary on the first
anniversary of this Agreement, or upon the announcement of any anticipated
Change in Control; provided, that any adjustment in Executive’s Base Salary
shall remain within the sole discretion of the Company.


 


                                                (b)                                 EQUITY
INCENTIVES.  During the period that Executive is employed with the Company hereunder,
Executive shall be eligible to receive a discretionary equity incentives,
including but not limited to restricted stock unit awards and/or stock options,
which incentives shall be granted to Executive at the time the Company normally
grants such incentives generally and otherwise in accordance with applicable
policies, practices, terms, and conditions (including but not limited to
vesting requirements), and provided further, that Executive is employed by the
Company on the date such incentives are awarded.


 


                                                (c)                                  DISCRETIONARY
BONUS.  During the period that
Executive is employed with the Company hereunder, Executive shall be eligible
to receive a discretionary annual bonus in an amount determined by the
Reporting Officer in accordance with the Company’s policies and procedures
regarding bonus computations, which bonus shall be payable to Executive at the
time the Company pays year-end bonuses generally and otherwise in accordance
with applicable policies and practices, provided, that Executive is employed by
Company on the date such bonuses are paid.


 


                                                (d)                                 BENEFITS.  From the Effective Date through the date of
termination of Executive’s employment with the Company for any reason,
Executive shall be entitled to participate in any welfare, health and life
insurance and pension benefit programs 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.  Without limiting the
generality of the foregoing, Executive shall be entitled to the following
benefits:


 


                                                (i)                                     Reimbursement
for Business Expenses. 
During the period that Executive is employed with the Company hereunder,
the Company shall reimburse Executive for all reasonable, necessary and
documented expenses incurred by Executive in performing Executive’s duties for
the Company, on the same basis as similarly situated employees and in
accordance with applicable policies as in effect from time to time.


 


                                                (ii)                                  Vacation and
other Paid Time Off.  During the
period that Executive is employed with the Company hereunder, 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.


 


 


 


 


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4.                                       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: Senior Vice
  President, Human Resources

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  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.


 


5.                                       GOVERNING LAW;
JURISDICTION.  This
Agreement and the legal relations thus created between the parties hereto
(including, without limitation, any dispute arising out of or related to this
Agreement) shall be governed by and construed under and in accordance with the
internal laws of the State of North Carolina without reference to its
principles of conflicts of laws.  Any
such dispute will be heard exclusively and determined before an appropriate
federal court located in the State of North Carolina in the Western District,
or, if not maintainable therein, then in an appropriate state court located in
Mecklenburg County, North Carolina, and each party hereto submits itself and
its property to the exclusive jurisdiction of the foregoing courts with respect
to such disputes.  Each party hereto (i) agrees
that service of process may be made by mailing a copy of any relevant document
to the address of the party set forth above, (ii) waives to the fullest
extent permitted by law any objection which it may now or hereafter have to the
courts referred to above on the grounds of inconvenient forum or otherwise as
regards any dispute between the parties hereto arising out of or related to
this Agreement, (iii) waives to the fullest extent permitted by law any
objection which it may now or hereafter have to the laying of venue in the
courts referred to above as regards any dispute between the parties hereto
arising out of or related to this Agreement and (iv) agrees that a
judgment or order of any court referred to above in connection with any dispute
between the parties hereto arising out of or related to this Agreement is
conclusive and binding on it and may be enforced against it in the courts of
any other jurisdiction.


 


6.                                       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.


 


7.                                       STANDARD TERMS
AND CONDITIONS.  Executive
expressly understands and acknowledges that the Executive 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 Executive Standard
Terms and Conditions attached hereto, taken as a whole.


 


 


 


 


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8.                                       SECTION 409A
OF THE INTERNAL REVENUE CODE.  This Agreement is not intended to constitute
a “nonqualified deferred compensation plan” within the meaning of Section 409A
of the Internal Revenue Code of 1986, as amended, and the rules and
regulations issued thereunder (“Section 409A”).  Notwithstanding the
foregoing, if this Agreement or any benefit paid to Executive hereunder is
subject to Section 409A and if the Executive is a “Specified Employee” (as defined under Section 409A)
as of the date of Executive’s termination of employment hereunder, then the
payment of benefits, if any, scheduled to be paid by the Company to Executive
hereunder during the first six (6) month period beginning on the date of a
termination of employment hereunder shall be delayed during such six (6) month
period and shall commence immediately following the end of such six (6) month
period (and, if applicable, the period in which such payments were scheduled to
be made if not for such delay shall be extended accordingly). 
In no event shall the Company be required to pay Executive any “gross-up” or
other payment with respect to any taxes or penalties imposed under Section 409A
with respect to any benefit paid to Executive hereunder.


 


                                                IN WITNESS WHEREOF, the Company has
caused this Agreement to be executed and delivered by its duly authorized
officer and Executive has executed and delivered this Agreement as of August 3,
2008.


 


 


	
   

  	
  LendingTree, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Claudette Hampton

  
	
   

  	
  By:

  	
  Claudette Hampton

  
	
   

  	
  Title:

  	
  Senior Vice President,
  Human Resources

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Matt Packey

  
	
   

  	
  Matt Packey

  



 


 


 


 


 


 


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EXECUTIVE STANDARD
TERMS AND CONDITIONS


 


1.                                       TERMINATION OF EXECUTIVE’S EMPLOYMENT.


 


                                                (a)                                  DEATH.  In the event Executive’s employment hereunder
is terminated by reason of Executive’s death, the Company shall pay Executive’s
designated beneficiary or beneficiaries, within thirty (30) days of Executive’s
death in a lump sum in cash, (i) Executive’s Base Salary through the end
of the month in which death occurs and (ii) any Other Accrued Obligations
(as defined in Section 1(e) below).


 


                                                (b)                                 DISABILITY.  If, as a result of Executive’s incapacity due
to physical or mental illness (“Disability”), Executive shall have been absent
from the full-time performance of Executive’s duties with the Company for a
period of four (4) consecutive months and, within thirty (30) days after
written notice is provided to Executive by the Company (in accordance with Section 4
of the Employment Agreement), Executive shall not have returned to the
full-time performance of Executive’s duties, Executive’s employment under this
Agreement may be terminated by the Company for Disability.  During any period prior to such termination
during which Executive is absent from the full-time performance of Executive’s
duties with the Company due to Disability, the Company shall continue to pay
Executive’s Base Salary at the rate in effect at the commencement of such
period of Disability, offset by any amounts payable to Executive under any
disability insurance plan or policy provided by the Company.  Upon termination of Executive’s employment
due to Disability, the Company shall pay Executive within thirty (30) days of
such termination (i) Executive’s Base Salary through the end of the month
in which termination occurs in a lump sum in cash, offset by any amounts
payable to Executive under any disability insurance plan or policy provided by
the Company; and (ii) any Other Accrued Obligations (as defined in
paragraph 1(e) below).


 


                                                (c)                                  TERMINATION FOR
CAUSE.  Upon the termination of
Executive’s employment by the Company for Cause (as defined below), the Company
shall have no further obligation hereunder, except for the payment of any Other
Accrued Obligations (as defined in paragraph 1(e) below).  As used herein, “Cause” shall mean:  (i) the Executive’s plea of guilty or
nolo contendere to, or conviction for, the commission of (A) a felony
offense, or (B) a misdemeanor offense involving any breach of trust or
fiduciary duty by Executive or involving any moral turpitude; provided, however,
that after indictment, the Company may suspend Executive from the rendition of
services, but without limiting or modifying in any other way the Company’s
obligations under this Agreement; (ii) a material breach by Executive of a
fiduciary duty owed to the Company; (iii) a material breach by Executive
of any of the covenants made by Executive in Section 2 hereof; (iv) the
willful or gross neglect by Executive of the material duties required by this
Agreement; or (v) a material violation by Executive of any reasonable
Company policy pertaining to ethics, wrongdoing or conflicts of interest.


 


                                                (d)                                 TERMINATION OR
BREACH BY THE COMPANY OTHER THAN FOR DEATH, DISABILITY OR CAUSE OR RESIGNATION
BY EXECUTIVE UPON A CHANGE IN CONTROL.  If (i) Executive’s employment hereunder
is terminated by the Company or the Company commits a material breach of this
Agreement prior to the expiration of the Term for 




 


 


 

















 


 


any reason other than Executive’s death or
Disability or for Cause, or (ii) Executive resigns within ninety (90) days
following the consummation of any Change in Control of the Company, then the
Company shall pay Executive the following:


 


                                                (i)                     Within thirty (30) days
following such termination, breach, or resignation, an amount equal to all
Other Accrued Obligations (as defined herein); and


 


                                                (ii)                  An amount equal to one (1) year’s
Base Salary, payable in equal installments on the Company’s regularly scheduled
paydays over the one (1) year period following the date of such
termination, breach, or resignation (the “Severance Period”).


 


                                                (iii)               If Executive properly elects
COBRA continuation for medical, dental and/or vision coverage, Company shall
subsidize the cost of Executive’s COBRA benefits through the end of the
Severance Period or until such time as Executive becomes eligible for group
coverage pursuant to another policy or program, whichever comes first.  The subsidy provided by Company for the COBRA
benefits shall be the total amount owed for COBRA benefits less the amount of
Executive’s current employee contribution for these benefits.  Should, within the period eligible for subsidy,
Executive elect more costly benefits options, the Company subsidy will remain
the same with Executive responsible for the difference.  Should, within the period eligible for
subsidy, Executive elect less costly benefits, the contribution by both Company
and Executive shall be reduced proportionally.


 


If
Executive obtains other employment or is otherwise compensated for services
provided during this Severance Period, the Company’s obligation to make future
payments to Executive under these subparagraphs (d)(ii) and (d)(iii) and
shall be offset against any compensation earned by Employee 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’s right to
the payments under these subparagraphs (d)(ii) and (d)(iii) shall be
subject to Executive’s execution and non-revocation of a reasonable general
release of the Company and its affiliates, in a form substantially similar to
that used for similarly situated executives of the Company and its affiliates,
and Executive’s compliance with the restrictive covenants set forth in Section 2
of these Standard Terms and Conditions. 
Executive acknowledges and agrees that the payments described in this Section 1(d) constitutes
good and valuable consideration for such release.


 


For
purposes of this Agreement, a “Change in Control” means


 


                                                (i)                     the acquisition, by any
means, by any individual entity or group, within the meaning of Section 13
(d)(3) or 14 (d)(2) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), other than IAC/InterActiveCorp, Barry Diller,
Liberty Media Corporation, and their respective affiliates (a “Person”),
directly or indirectly, of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of equity securities of LendingTree, LLC
representing more than 50% of the voting power of the then outstanding equity
securities of LendingTree, LLC entitled to vote generally in the election of
directors or managing members (as applicable) of the entity 




 


 


 


 


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(the
“Outstanding Voting Securities”); provided, however, that for purposes of this subsection (i), the
following acquisitions shall not constitute a Change in Control: (1) any
acquisition by any employee benefit plan (or trust related to such employee
benefit plan) sponsored or maintained by LendingTree, LLC or any corporation
controlled by LendingTree, LLC or (2) any acquisition by any Person
pursuant to a transaction which complies with clauses (A) and (B) of
subsection (ii) of this definition; or


 


                                                (ii)                  the consummation of a
reorganization, merger or consolidation or sale or other disposition, directly
or indirectly of all or substantially all of the assets of LendingTree, LLC or
the purchase of assets or stock or another entity (a “Business Combination”) in
each case, unless immediately following such Business Combination, (A) all
or substantially all of the individuals and entities who were the beneficial
owners of the Outstanding Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more than 50% of the then
outstanding combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, managing members or
other required persons (as applicable) of the entity resulting from such
Business Combination (including, without limitation, an entity which as a
result of such transaction owns LendingTree, LLC or all or substantially all of
the assets of LendingTree, LLC either directly or through one or more
subsidiaries) in substantially the same proportion as their ownership
immediately prior to such Business Combination of the outstanding voting
securities, and (B) no person (excluding IACInteractiveCorp, Barry Diller,
Liberty Media Corporation and their respective affiliates, any employee benefit
plan (or related trust) of LendingTree, LLC or such entity resulting from such
Business Combination) beneficially owns, directly or indirectly, more than a
majority of the combined voting power of the then Outstanding Voting Securities
of such entity except to the extent that such ownership of LendingTree, LLC existed
prior to the Business Combination; or


 


                                                (iii)               the approval by the members,
stockholders or other required persons (as applicable) of LendingTree, LLC of a
complete liquidation or dissolution of LendingTree, LLC.


 


                                                (e)                                  OTHER ACCRUED
OBLIGATIONS.  As used in
this Agreement, “Other Accrued Obligations” shall mean the sum of (i) any
portion of Executive’s accrued but unpaid Base Salary or Bonus 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 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 Section 3(d) of the
Agreement.


 


2.                                       CONFIDENTIAL INFORMATION;
NON-COMPETITION; NON-SOLICITATION; AND PROPRIETARY 

                                                RIGHTS.


 


                                                (a)                                  CONFIDENTIALITY.  Executive
acknowledges that, while employed by the Company, Executive will occupy a
position of trust and confidence.  The
Company, its 




 


 


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subsidiaries and/or
affiliates shall provide Executive with “Confidential Information” as referred
to below.  Executive shall not, except as
may be required to perform Executive’s duties hereunder or as required by
applicable law, without limitation in time, communicate, divulge, disseminate,
disclose to others or otherwise use, whether directly or indirectly, any
Confidential Information regarding the Company and/or any of its subsidiaries
and/or affiliates.


 


                “Confidential
Information” shall mean information about the Company or any of its
subsidiaries or affiliates, and their respective businesses, employees, consultants,
contractors, clients and customers that is not disclosed by the Company or any
of its subsidiaries or affiliates for financial reporting purposes or otherwise
generally made available to the public (other than by Executive’s breach of the
terms hereof) and that was learned or developed by Executive in the course of
employment by 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.  Executive 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.  Executive agrees to deliver
or return to the Company, at the Company’s request at any time or upon termination
or expiration of Executive’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 Company
and its subsidiaries or affiliates or prepared by Executive in the course of
Executive’s employment by the Company and its subsidiaries or affiliates.  As used in this Agreement, “subsidiaries” and
“affiliates” shall mean any company controlled by, controlling or under common
control with the Company.  For purposes
of this Agreement, “Confidential Information” shall not include any information
that is now or hereafter becomes known to the public or otherwise is in the
public domain other than through Executive’s fault, breach, disclosure, or
other act of Executive.


 


                                                (b)                                 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 Executive’s employment hereunder and for a period of
twelve (12) months thereafter (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 Section 2(b), (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
LendingTree and/or the Company 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 




 


 


 


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“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, 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.


 


                                                Notwithstanding
the foregoing, Executive may make and retain investments during the Restricted
Period, for investment purposes only, in less than five 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 National Market System if Executive is not
otherwise affiliated with such corporation.  
Executive acknowledges that Executive’s covenants under this Section 2(b) are
a material inducement to the Company’s entrance into this Agreement.


 


                                                (c)                                  NON-SOLICITATION
OF EMPLOYEES.  Executive
recognizes that he or she will possess Confidential Information about other
employees, consultants 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
or she will possess about these other employees, consultants 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 business position with the Company. 
Executive agrees that, during Executive’s employment hereunder and for a
period of twelve (12) months thereafter, (i) Executive will not, directly
or indirectly, hire or solicit or recruit any person then employed by the
Company  and/or any of its subsidiaries
and/or affiliates with whom Executive has had direct contact during his
employment hereunder, 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 of the Company or any of its subsidiaries or
affiliates to any other person except within the scope of Executive’s duties
hereunder.  Notwithstanding the
foregoing, the restrictions set forth immediately above shall, in the case of
employees with whom Executive had a direct working relationship prior to his
employment with the Company, its subsidiaries and/or affiliates, (i) upon
a termination of Executive’s employment by the Company for any reason other
than for Cause, shall apply for a period of nine (9) months following such
termination, or (ii) if Executive terminates his employment hereunder,
apply for a period of twelve (12) months following such termination.


 


                                                (d)                                 NON-SOLICITATION
OF CUSTOMERS.  During
Executive’s employment hereunder and for a period of twelve (12) months thereafter,
Executive shall not solicit any Customers of LendingTree or encourage
(regardless of who initiates the contact) any such Customers to use the
facilities or services of any competitor of LendingTree.  For the purposes of this subsection, “Customers”
means any persons or entities that purchased products or services from the
Company within twelve (12) calendar months of the termination of Executive’s
employment.


 


 


 


 


 


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                                                (e)                                  PROPRIETARY
RIGHTS; ASSIGNMENT.  All
Employee Developments (defined below) shall be considered works made for hire
by Executive for the Company or, as applicable, its subsidiaries or affiliates,
and Executive agrees that all rights of any kind in any Employee Developments
belong exclusively to the Company.  In
order to permit the Company to exploit such Employee Developments, Executive
shall promptly and fully report all such Employee Developments to the
Company.  Except in furtherance of his
obligations as an employee of the Company, Executive shall not use or reproduce
any portion of any record associated with any Employee Development without
prior written consent of the Company or, as applicable, its subsidiaries or
affiliates.  Executive agrees that in the
event actions of Executive are required to ensure that such rights belong to
the Company under applicable laws, Executive will cooperate and take whatever
such actions are reasonably requested by the Company, whether during or after
the Term, and without the need for separate or additional compensation.  “Employee Developments” means any idea,
know-how, discovery, invention, design, method, technique, improvement,
enhancement, development, computer program, machine, algorithm or other work of
authorship, whether developed, conceived or reduced to practice during or
following the period of employment, that (i) concerns or relates to the
actual or anticipated business, research or development activities, or
operations of LendingTree (or any other Company business for which Executive
has direct or indirect responsibility during his employment hereunder), or (ii) results
from or is suggested by any undertaking assigned to Executive or work performed
by Executive 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, or (iii) uses, incorporates or is based on Company equipment,
supplies, facilities, trade secrets or inventions of any form or type.  All Confidential Information and all Employee
Developments are and shall remain the sole property of the Company or any of
its subsidiaries or affiliates. 
Executive shall acquire no proprietary interest in any Confidential
Information or Employee Developments developed or acquired during the
Term.  To the extent Executive may, by
operation of law or otherwise, acquire any right, title or interest in or to
any Confidential Information or Employee Development, Executive hereby assigns
and covenants to assign to the Company all such proprietary rights without the
need for a separate writing or additional compensation.  Executive shall, both during and after the
Term, upon the Company’s request, promptly execute, acknowledge, and deliver to
the Company all such assignments, confirmations of assignment, 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 period that Executive is employed with the Company hereunder,
Executive shall adhere to the reasonable policies and standards of
professionalism set forth in the Company’s Policies and Procedures applicable
to all employees of the Company and its subsidiaries and/or affiliates, as well
as LendingTree’s reasonable policies (or the reasonable policies of such other
businesses for which Executive has direct or indirect responsibility under this
Agreement) as they may exist from time to time.


 


                                                (g)                                 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 Executive’s 




 


 


 


 


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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 that any restriction in this Section 2
is excessive in duration or scope or is unreasonable or unenforceable under
applicable law, 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 applicable law.


 


3.                                       TERMINATION OF PRIOR
AGREEMENTS.  This
Agreement constitutes the entire agreement between the parties and, as of the
Effective Date, terminates and supersedes any and all prior agreements and
understandings (whether written or oral) between the parties with respect to
the subject matter of this Agreement. 
Executive acknowledges and agrees that neither the Company nor anyone
acting on its behalf has made, and is not making, and in executing this
Agreement, Executive has not relied upon, any representations, promises or
inducements except to the extent the same is expressly set forth in this
Agreement.  Executive hereby represents
and warrants that by entering into this Agreement, Executive will not rescind
or otherwise breach an employment agreement or other agreement with Executive’s
current employer prior to the natural expiration date of such agreement.  Notwithstanding the foregoing, nothing in
this Agreement shall alter the Executive’s rights to (i) any grant of RSUs
or other equity interests, or the vesting rights or conditions of termination
and/or expiration thereof, granted in any prior agreement (including, without
limitation, the rights granted to Executive under that certain Restricted
Shares Grant and Shareholders’ Agreement dated as of May 5, 2003, as
amended from time to time), or (ii) the payment of any cash bonus, whether
guaranteed or discretionary, attributable to the Company’s 2007 fiscal year and
awarded in any prior agreement.


 


4.                                       ASSIGNMENT; SUCCESSORS.  Without limiting the provisions of Section 2(d) of
this Agreement, the parties agree that this Agreement is personal in its nature
and that 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 the Company may assign this Agreement to, or allow any of its
obligations to be fulfilled by, or take actions through, any affiliate of the
Company and, in the event of the merger, consolidation, transfer, or sale of
all or substantially all of the assets of the Company (a “Transaction”) 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 shall discharge and perform all the promises, covenants,
duties, and obligations of the Company hereunder, and in the event of any such
assignment or Transaction, all references herein to the “Company” shall refer
to the Company’s assignee or successor hereunder.


 


5.                                       WITHHOLDING.  The Company shall make such deductions and
withhold such amounts from each payment and benefit made or provided to
Executive 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 Standard Terms and Conditions and the Employment Agreement
attached hereto, taken as a whole.


 


 


 


 


 


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7.                                       REMEDIES FOR BREACH.  Executive expressly agrees and understands
that Executive will notify the Company in writing of any alleged breach of this
Agreement by the Company, and the Company will have thirty (30) days from
receipt of Executive’s notice to cure any such breach.  Executive expressly agrees and understands
that in the event of any termination of Executive’s employment by the Company
during the Term, the Company’s contractual obligations to Executive shall be
fulfilled through compliance with its obligations under Section 1 of the
Standard Terms and Conditions.


 


                                                Executive
expressly agrees and understands that the remedy at law for any breach by
Executive of Section 2 of the Standard Terms and Conditions 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
Executive’s violation of any provision of such Section 2, 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 shall be
deemed to limit the Company’s remedies at law or in equity for any breach by
Executive of any of the provisions of this Agreement, including Section 2,
which may be pursued by or available to the Company.


 


8.                                       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.


 


9.                                       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.


 


10.                                 INDEMNIFICATION.  The Company shall indemnify and hold
Executive harmless for acts and omissions in Executive’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 Executive
for any losses incurred by Executive as a result of acts described in Section 1(c) of
this Agreement.


 


 


 


 


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