Exhibit 10.4


 


Notice of Restricted Stock Unit Award
Granted Under the 

Amended and Restated Tree.com, Inc. 2008 Stock and Annual Incentive Plan


 


	
  Award
  Recipient:

  	
   

  	
  [Last Name, First Name]

  
	
  2009 Restricted Stock Unit Award:

  	
   

  	
               restricted
  stock units (“RSUs”) under the Tree.com, Inc. 2008 Stock and Annual
  Incentive Plan (the “2008 Plan”).

  
	
   

  	
   

  	
   

  
	
  Award Date

  	
   

  	
  [                  ]

  
	
   

  	
   

  	
   

  
	
  Vesting Schedule:

  	
   

  	
  Your RSUs shall, subject
  to the provisions of the 2008 Plan, vest and no longer be subject to any restriction
  as set forth below:

  
	
   

  	
   

  	
  Vesting
  Date

  	
   

  	
  Percentage
  of Total

  Award Vesting

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Impact of a Termination of Employment:

  	
   

  	
  Except as otherwise provided in the 2008 Plan, in the attached Terms
  and Conditions for Restricted Stock Unit Awards, or any prior employment
  agreement, all of your unvested RSUs will be forfeited and canceled in their
  entirety upon a Termination of Employment by Tree.com.

  
	
   

  	
   

  	
   

  
	
  Terms and Conditions:

  	
   

  	
  Capitalized terms used (but not defined) in this Award Notice shall
  have the meanings set forth in the 2008 Plan.

   

  Your RSUs are subject to the Standard
  Terms and Conditions for Restricted Stock Unit Awards attached hereto
  and to the 2008 Plan, both of which are posted on www.benefitaccess.com and
  incorporated herein by reference. Additional copies of these documents are
  also available upon request from your Human Resources Department.

   

  Without a complete review of these documents, you will not have a
  full understanding of all the material terms of your RSUs.

  



 


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Standard
Terms and Conditions for Restricted Stock Unit Award


 


Overview


 


These Terms and Conditions apply to the grant awarded
to you by Tree.com, Inc. (“Tree.com” or the “Company”) pursuant to Section 7
of the Tree.com Amended and Restated 2008 Stock and Annual Incentive Plan (the “Plan”)
of restricted stock units (the “Award”). 
You were notified of your Award by way of an award notice (the “Award
Notice”).  All capitalized terms used herein, to the extent not defined, shall have
the meaning as set forth in the Plan.


 


Continuous Service


 


In order for your Award to vest, you must be
continuously employed by Tree.com or any of its Subsidiaries or Affiliates
during the Restriction Period (as defined below).  Nothing in your Award Notice, these Terms and
Conditions, or the Plan shall confer upon you any right to continue in the
employ or service of Tree.com or any of its Subsidiaries or Affiliates or
interfere in any way with their rights to terminate your employment or service
at any time.


 


Vesting


 


Subject to the Award Notice, these Terms and
Conditions and the Plan, the RSUs in respect to your Award, shall vest and no
longer be subject to any restriction (such period during which restrictions
apply is the “Restriction Period”) as follows:


 


	
   

  	
   

  	
  Percentage
  of Total

  
	
  Vesting
  Date

  	
   

  	
  Award
  Vesting

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


Termination of Employment


 


[For employees:  [Except as otherwise provided in the Award
Notice or these Terms and Conditions] Upon the termination of your employment
with Tree.com or any of its Subsidiaries or Affiliates during the Restriction
Period for any reason, any unvested portion of your Award shall be forfeited
and canceled in its entirety effective immediately upon such termination of
employment. .


 


For the avoidance of doubt, transfers of employment
among the Company and its Subsidiaries and Affiliates, without any break in
service, is not a Termination of Employment.]


 


[For directors: The
unvested portion of your Award shall be forfeited and canceled in its entirety
effective immediately upon termination of service as a director.]


 


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Settlement


 


Subject to your satisfaction of the tax obligations
described immediately below under “Taxes and Withholding,” as soon as
practicable after any RSUs in respect of your Award have vested and are no
longer subject to the Restriction Period (but in no event later than two and a
half months after the end of the fiscal year in which the RSUs vest), such RSUs shall be settled.  For each RSU settled, Tree.com shall issue
one share of Common Stock for each RSU vesting. 
Notwithstanding the foregoing, Tree.com shall be entitled to hold the
shares or cash issuable to you upon settlement of all RSUs that have vested
until Tree.com or the agent selected by Tree.com to administer the Plan (the “Agent”)
has received from you (i) a duly executed Form W-9 or W-8 and (ii) payment
for any federal, state, local or foreign taxes of any kind required by law to
be withheld with respect to such RSUs.


 


Taxes and Withholding


 


No later than the date as of which an amount in
respect of any RSUs first becomes includable in your gross income for federal,
state, local or foreign income or employment or other tax purposes, Tree.com or
its Subsidiaries and/or Affiliates shall, unless prohibited by law, have the
right to deduct any federal, state, local or foreign taxes of any kind required
by law to be withheld with respect to such amount due to you, including
deducting such amount from the delivery of shares or cash issued upon
settlement of the RSUs that gives rise to the withholding requirement.  In the event shares are deducted to cover tax
withholdings, the number of shares withheld shall generally have a Fair Market
Value equal to the aggregate amount of Tree.com’s withholding obligation.  If the event that any such deduction and/or
withholding is prohibited by law, you shall, prior to or contemporaneously with
the vesting of your RSUs, pay to Tree.com, or make arrangements satisfactory to
Tree.com regarding the payment of, any federal, state, local or foreign taxes
of any kind required by law to be withheld with respect to such amount.


 


Non-Transferability of the RSUs


 


Until such time as your RSUs are ultimately settled,
they shall not be transferable by you by means of sale, assignment, exchange,
encumbrance, pledge, hedge or otherwise.


 


No Rights as a Stockholder


 


Except as otherwise specifically provided in the Plan,
unless and until your RSUs are settled, you shall not be entitled to any rights
of a stockholder with respect to the RSUs (including the right to vote the
underlying shares).  Notwithstanding the
foregoing, if Tree.com declares and pays dividends on the Common Stock during
the Restriction Period for particular RSUs in respect of your Award, you will
be credited with additional amounts for each RSU underlying such Award equal to
the dividend that would have been paid with respect to such RSU as if it had
been an actual share of Common Stock, which amount shall remain subject to
restrictions (and as determined by the Committee may be reinvested in RSUs or
may be held in kind as restricted property) and shall vest concurrently with
the vesting of the RSUs upon which such dividend equivalent amounts were paid.


 


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Other Restrictions


 


The RSUs shall be subject to the requirement that, if
at any time the Committee shall determine that (i) the listing,
registration or qualification of the shares of Common Stock subject or related
thereto upon any securities exchange or under any state or federal law, or (ii) the
consent or approval of any government regulatory body is necessary or desirable
as a condition of, or in connection with, the delivery of shares, then in any
such event, the award of RSUs shall not be effective unless such listing,
registration, qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Committee.


 


Conflicts and Interpretation


 


In the event of any conflict between these Terms and
Conditions and the Plan, the Plan shall control; provided, that an action or
provision that is permissive under the terms of the Plan, and required under
these Terms and Conditions, shall not be deemed a conflict and these Terms and
Conditions shall control.  In the event
of any ambiguity in these Terms and Conditions, or any matters as to which
these Terms and Conditions are silent, the Plan shall govern.  In the event of (i) any conflict between
the Award Notice (or any other information posted on Tree.com’s intranet or
given to you directly or indirectly through the Agent (including information
posted on https://www.benefitaccess.com/ and Tree.com’s books and records, or (ii) ambiguity
in the Award Notice (or any other information posted on Tree.com’s intranet or
given to you directly or indirectly through the Agent (including information
posted on https://www.benefitaccess.com/, 
Tree.com’s books and records shall control.


 


Amendment


 


Tree.com may modify, amend or waive the terms of your
RSUs, prospectively or retroactively, but no such modification, amendment or
waiver shall materially impair your rights without your consent, except as
required by applicable law, NASDAQ or stock exchange rules, tax rules or
accounting rules.


 


Data Protection


 


The acceptance of your RSUs constitutes your
authorization of the release from time to time to Tree.com or any of its
Subsidiaries or Affiliates and to the Agent (together, the “Relevant Companies”)
of any and all personal or professional data that is necessary or desirable for
the administration of your RSUs and/or the Plan (the “Relevant Information”).  Without limiting the above, this
authorization permits your employing company to collect, process, register and
transfer to the Relevant Companies all Relevant Information (including any
professional and personal data that may be useful or necessary for the purposes
of the administration of your RSUs and/or the Plan and/or to implement or
structure any further grants of equity awards (if any)).  The acceptance of your RSUs also constitutes
your authorization of the transfer of the Relevant Information to any
jurisdiction in which Tree.com, your employing company or the Agent considers
appropriate.  You shall have access to, and
the right to change, the Relevant Information, which will only be used in
accordance with applicable law.


 


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Section 409A of the Code


 


Your Award is not intended to constitute “nonqualified
deferred compensation” within the meaning of Section 409A of the Internal
Revenue Code of 1986, as amended, and the rules and regulations issued
there under (“Section 409A”).  In no
event shall Tree.com be required to pay you any “gross-up” or other payment
with respect to any taxes or penalties imposed under Section 409A with
respect to any amounts or benefits paid to you in respect of your Award.


 


Notification of Changes


 


Any changes to these
Terms and Conditions shall either be posted on Tree.com’s intranet or
communicated (either directly by Tree.com or indirectly through any of its
Subsidiaries, Affiliates or the Agent) to you electronically via e-mail (or
otherwise in writing) promptly after such change becomes effective.


 


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