Exhibit 10.1


 


ACKNOWLEDGMENT


 


The undersigned,
Bret Violette, acknowledges that on February 2, 2009, he was provided with
the attached Amended Employment and Release Agreement (“Agreement”).  The undersigned further acknowledges that he
has been advised to consult with his attorney before entering into the attached
Agreement, and that he is being given a period of at least twenty-one (21) days
(i.e., up to and including February 23,
2009) to consider whether to accept or reject the proposed Agreement.  The undersigned acknowledges that he has
received and read this Acknowledgment, and fully understands its meaning.


 


 


	
  /s/ Bret
  Violette

  	
   

  	
  /s/ Robin H. Chandler

  
	
  Bret Violette

  	
   

  	
  Witness

  
	
   

  	
   

  	
   

  
	
  Date:

  	
  2/2/09

  	
   

  	
  Date:

  	
  2-2-09

  
					



 





















 


AMENDED EMPLOYMENT
AND RELEASE AGREEMENT


 


This Amended Employment and Release Agreement
(“Agreement”) is entered into as of
this  2nd day of February, 2009 (“Execution Date”),
by and between Bret Violette (hereinafter “Employee”),
and Tree.com, Inc., and its successors, assigns, and affiliates (collectively,
“Company”).


 


RECITALS


 


WHEREAS, Employee has been employed by the Company
as President of Real Estate;


 


WHEREAS, Employee and Company desire to terminate
the employment relationship in an amicable and definitive manner, and the
parties wish to memorialize the terms upon which Employee’s employment with
Company will end, and to otherwise resolve all outstanding issues between them
concerning Employee’s employment with Company;


 


WHEREAS, Employee’s effective last day of employment
is July 15th, 2009 (“Termination Date”);
and


 


WHEREAS, Employee’s last day in the office is February 27th, 2009 (“Departure Date”); and


 


WHEREAS, the Company, in exchange for the release
provided by Employee herein, has agreed to provide Employee with certain
additional compensation and other consideration which it is not otherwise
obligated to provide.


 


AGREEMENT


 


1.              Compensation.  The
Company will pay to Employee his weekly Base Salary
(as defined in the Employment Agreement between Employee and Company dated April 11,
2007 (the “Employment Agreement”)), and any other compensation due and payable
during the term of employment through and including the Termination Date.  Such payments shall be made in accordance
with the Company’s regular payroll schedule, with the final payment through July 15,
2009 being made on or before July 15, 2009.  The Company will also pay to Employee, on or
before July 15, 2009, an amount equal to any accrued but unused vacation
and personal days balance.  In addition,
and without limiting the foregoing, upon the Termination Date, Company shall
pay Employee the guaranteed bonus as defined in the Employment Agreement in the
amount of five hundred thousand dollars ($500,000) (“Guaranteed
Annual Bonus Payment”) on or before July 15, 2009.  If Company fails to pay the Guaranteed Annual
Bonus Payment as set forth above, Company agrees to pay interest at the legal
rate specified by N.C. Gen. Stat. 24-1 (8% per annum) until paid, along with
attorneys’ fees incurred by Employee in collecting such Guaranteed Annual Bonus
Payment.


 


2.              Employee Benefits. 
Subject to the provisions of Paragraph 3 below, from and after the
Termination Date, Employee shall not have the right to participate in or
receive any benefit under any employee benefit plan of the Company, any fringe
benefit plan of the Company, or 


 


2





















 


any
other plan, policy or arrangement of the Company providing benefits to
employees of the Company generally or individually.  Notwithstanding the foregoing, Employee (a) shall
continue to be eligible for medical, dental, vision, and medical flexible
spending account benefits, to the extent currently enrolled, until July 31,
2009, and (b) shall be entitled, if otherwise eligible, (i) to
exercise his right to continued coverage under the Company medical benefit plan
as provided by the Consolidated Omnibus Budget Reconciliation Act of 1986, 26
U.S.C. §§ 490B et seq. (“COBRA”)
(and with respect to which the Company will provide Employee with a separate
notice as required by federal law); and (ii) to elect the payment of
benefits to which Employee is entitled under any employee pension benefit plan
of the Company as provided under the terms of any such plan.


 


3.               Severance Benefits.


 


(a)           Notwithstanding the provisions of Paragraph 2, as
consideration for Employee’s execution of this Agreement and assent to its
terms and conditions,


 


(i)                                    Company shall cause certain unvested Tree.com
Restricted Stock Units (“RSUs”) issued to Employee by the Company or Company’s
predecessor, IAC/InterActiveCorp (“IAC”), to vest upon the Termination Date, as
set forth on Exhibit A, representing all of Employee’s unvested Tree.com
RSUs.  Notwithstanding the foregoing, any
such Tree.com RSUs that vest pursuant to this subsection (a)(i) shall not
be distributed to Employee until the applicable distribution date set forth in
the Stock Plan governing such Tree.com RSUs; and


 


(ii)                                 Company shall cause certain unvested IAC,
Ticketmaster, Interval, or HSN (individually, “Spinco”)
RSUs issued to Employee, either by Company or by IAC, to vest upon the
Termination Date, as set forth on Exhibit A, representing two-third
(2/3rds) of Employee’s unvested RSUs in each of the respective Spincos.  Notwithstanding the foregoing, any such
Spinco RSUs that vest pursuant to this subsection (a)(ii) shall not be
distributed to Employee until the applicable distribution date set forth in the
Stock Plan governing such spinco RSUs.


 


(b)           All payments described in subsection (a) above
shall be subject to and reduced by any and all applicable federal, state, and
local withholdings or deductions.


 


4.              Adequacy of Consideration. 
Employee understands that the Severance Benefits provided hereunder by
the Company are discretionary in nature, are not an admission of liability by
the Company, and constitute adequate consideration for the Agreement.


 


5.              Release.  (a).  Except as described below, Employee agrees
and covenants not to file any complaints, lawsuits, or charges against 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, 


 


3





















 


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”), in any
court or administrative agency, with regard to any claim, demand, liability or
obligation arising out of or related to his employment with, or resignation
from, the Company.  Employee agrees to
release 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 resignation 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
California; any claims brought under any federal or state statute or regulation
for 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 Agreement; provided,
however, nothing
in this Agreement shall prohibit Employee from filing a charge with or
participating in any investigation or proceeding conducted by the EEOC or a
comparable state or local agency. 
Notwithstanding the foregoing, Employee waives his right to recover
monetary damages in any charge, complaint or lawsuit filed by him or anyone
else on his behalf to the extent such claim relates directly or indirectly to
Employee’s employment with Company. 
Employee further represents that no claims, complaints, charges, or
other proceedings are pending in any court, administrative agency, commission
or other forum relating directly or indirectly to his employment with Company.


 


(b)           Company agrees to forever release,
acquit, and discharge Employee from and against all claims, charges,
complaints, causes of actions or demands which exist as of the date of this
Agreement that are actually known to the Chief Executive Officer or Senior Vice
President – Human Resources and that arise out or are related to Employee’s
employment with the Company.


 


(c)           Nothing contained in this Section 5
shall prohibit Employee from bringing a claim to challenge the validity of the
ADEA agreement in Section 13 herein.


 


(d)           This Agreement specifically excludes
claims, charges, complaints, causes of action or demands that post-date the
Termination Date.


 


6.               Indemnification.  Company agrees to defend and indemnify
Employee and hold Employee harmless from all claims, charges, complaints, causes of actions or demands brought by
third parties against Employee arising out of or related to Employee’s employment
with the Company, to the fullest extent permitted by the Company’s Bylaws.


 


4





















 


7.              Continuing Obligations. 
Employee and Company agree that the provisions of the Standard Terms and
Conditions to Employee’s Employment Agreement (excluding Section 1 of such
Standard Terms and Conditions) shall continue to apply and are hereby
incorporated by reference.  In the event
of any conflict between the provisions of this Agreement and such Standard
Terms and Conditions, the provisions of this Agreement shall control.  Notwithstanding anything to the contrary, for
purposes of the third paragraph of Section 2(b) of such Standard
Terms and Conditions, real estate broker shall not be considered to have a “material
internet or call center marketing operations,” unless either (i) such
broker employs fifteen (15) or more call center employees, or (ii) such
broker derives 25% or more of its revenue from leads generated by Company
sponsored websites.  Furthermore,
notwithstanding anything to the contrary, for purposes of the last sentence of
the third paragraph of Section 2(b) of such Standard Terms and
Conditions, Employee shall not be prohibited creating an internet or call
center marketing capability, or managing or participating in such operations,
for an existing broker, provided that
such existing broker (i) employs fewer than fifteen (15) call center
employees and (ii) derives less than $15 million in revenue during the
Restricted Period from Company sponsored websites.


 


8.              Non-Disparagement.  Employee
covenants and agrees that he will not knowingly make critical, negative or
disparaging remarks about the Company, its affiliates, or their officers,
directors, employees, or representatives, including but not limited to comments
about any of their products, services, business or employment practices.  Company covenants and agrees that it, its
affiliates, or their respective officers, directors, employees, or
representatives will not knowingly make critical, negative, or disparaging
remarks about the Employee to any third party.


 


9.              Return of Property. 
Employee acknowledges that the Company has returned to him all of his
personal effects and property which were in the Company’s possession or
control.  Employee further acknowledges
and agrees that he has returned or will return to the Company all property of
the Company (including, but not limited to, computers, cell phones, pagers,
keys and access cards, Company credit cards, and all other Company documents,
records and equipment) which are in Employee’s possession or control, including
all copies and summaries of any of the Company’s confidential or proprietary
information.


 


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


 


11.        References.  Employee will direct all
employment verification inquiries to the Company’s Senior Vice President of
Human Resources.  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, his position(s), the date his employment
ended, and rates of pay.


 


5




















 


12.         Severability; Choice of Law; Venue; Entire
Agreement.  If any provision of this Agreement or
compliance by Employee or the Company with any provision of the Agreement
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 Agreement, which
provisions will remain binding on both Employee and the Company.  This Agreement is governed by, and construed
and interpreted in accordance with the laws of the State of North Carolina,
without regard to principles of conflicts of law.  Employee consents to venue and personal
jurisdiction in North Carolina for disputes arising under this Agreement.  Except as expressly provided herein, this
Agreement represents the entire understanding with the parties with respect to
the subject matter herein, and the parties acknowledge and agree that no oral
representations have been made or relied upon by the parties.


 


13.         ADEA Claims.  Employee hereby releases and
discharges the Released Parties from any and all claims, actions and causes of
action that he may have against the Released Parties, as of the date of the
execution of this Agreement, arising under the Age Discrimination in Employment
Act of 1967, as amended (“ADEA”), and
the applicable rules and regulations promulgated thereunder.  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 13
was granted in exchange for the receipt of consideration that exceeds the
amount to which he would otherwise be entitled to receive upon termination of
his employment; (B) his waiver of rights under this Agreement is knowing
and voluntary as required under the Older Workers Benefit Protection Act; (C) that
he has read and understands the terms of this Agreement; (D) he has hereby
been advised in writing by the Company to consult with an attorney prior to
executing this Agreement; (E) the Company has given him a period of up to
twenty-one (21) days within which to consider this Agreement, which period
shall be waived by Employee’s voluntary execution prior to the expiration of
the twenty-one day period and the parties agree that any changes to the
terms or conditions of this Agreement (whether material or immaterial) will not
restart the running of the 21-day period;
and (F) following his execution of this Agreement he has seven (7) days
in which to revoke his release as set forth in this Section 133 only and
that, if he chooses not to so revoke, the agreement in this Section 13
shall then become effective and enforceable and the payment listed above shall
then be made to him in accordance with the terms of this Agreement.  To cancel this Agreement, Employee
understands that he must give a written revocation to the Senior Vice President
of Human Resources of the Company at 11115 Rushmore Drive, Charlotte, North
Carolina 28277, either by hand delivery or certified mail within the seven-day
period.  If he rescinds the Agreement, it
will not become effective or enforceable and he will not be entitled to any
benefits from the Company.


 


14.         Cooperation and Assistance. 
Employee agrees to provide the Company with
reasonable cooperation and assistance related to the transition of his job
duties and projects to other 


 


6

















 


employees from the
Departure Date through the Termination Date, including, but not limited to,
assistance with Company’s litigation matters. 
In doing so, Employee will not be required to come to the Company’s offices
(unless Employee and the Company mutually agree to do so), but agrees to make
himself readily available by telephone through March 31, 2009, and
thereafter to reasonable telephone inquiries and other forms of correspondence
from the Company concerning the transition of his job duties and projects.  Employee agrees to use his best efforts to
respond to such inquires within a reasonable period of time.


 


15.         Costs.  The parties will each bear
their own costs, expert fees, attorneys’ fees and other fees incurred in
connection with this Agreement.


 


16.         Default.  In the event Employee has been determined by
any court of law to be default under the provisions of this Agreement Company’s obligations under this Agreement
prior to April 11, 2010, Employee shall have deemed to have forfeited, and
shall immediately reimburse Company, for the amount of any payments paid to or
due or owing to Employee pursuant to paragraph 3(a) of this Agreement


 


16.       EMPLOYEE ACKNOWLEDGES AND AGREES
THAT HE HAS CAREFULLY READ AND VOLUNTARILY SIGNED THIS AGREEMENT, THAT HE HAS
HAD AN OPPORTUNITY TO CONSULT WITH AN ATTORNEY OF HIS CHOICE, AND THAT HE SIGNS
THIS AGREEMENT WITH THE INTENT OF RELEASING THE COMPANY, ITS AFFILIATES,
SUBSIDIARIES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES
AND AGENTS FROM ANY AND ALL CLAIMS TO THE EXTENT SUCH CLAIMS RELATES DIRECTLY
OR INDIRECTLY TO EMPLOYEE’S EMPLOYMENT WITH COMPANY.


 


7

















 


NOW,
THEREFORE, Employee
and Company have executed this Agreement, freely and voluntarily, as of the
date first written above.


 


 


	
  /s/ Bret Violette 

  	
  (SEAL)

  



Bret
Violette


 


Sworn
to and subscribed before me

this 2 day of February, 2009.


 


	
  /s/ Robin H. Chandler

  	
   

  



Notary
Public


 


	
  My Commission Expires: 

  	
  May 4, 2010

  	
   

  



 


	
   

  	
  TREE.COM, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Doug Lebda

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 


 


(CORPORATE SEAL)


 


 


Sworn
to and subscribed before me

this 2 day of February, 2009.


 


	
  /s/ Robin H. Chandler

  	
   

  



Notary
Public


 


	
  My Commission Expires: 

  	
  May 4, 2010

  	
   

  



 


8

















 


Exhibit A


 


Tree.com RSUs Vesting Pursuant to Paragraph 3(a)(i)


 


	
  TREE

  	
   

  	
  15,924 units

  



 


 


Spinco RSUs Vesting Pursuant to Paragraph 3(a)(ii)


 


	
  IACI

  	
   

  	
  1,111 units

  
	
  HSNI

  	
   

  	
  444 units

  
	
  IILG

  	
   

  	
  444 units

  
	
  TKTM

  	
   

  	
  444 units