EXHIBIT 10.5


 


EMPLOYMENT AGREEMENT


 


THIS EMPLOYMENT AGREEMENT (“Agreement”)
is entered into by and between David Norris (“Executive”) and Tree.com, Inc.,
a corporation (the “Company”), and is effective as of June 30th, 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 President,
Home Loan Center.  During Executive’s
employment with the Company, Executive shall do and perform all services and
acts necessary or advisable to fulfill the duties and responsibilities as are
commensurate and consistent with Executive’s position and shall render such
services on the terms set forth herein. 
During Executive’s employment with the Company, Executive shall report
directly to the Chief Executive Officer of the Company or any officer
designated by him (hereinafter referred to as the “Reporting Officer”).  Executive shall have such powers and duties
with respect to the Company or its affiliates 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 the Company and to perform the duties of
Executive’s position in accordance with Company policies applicable to all
employees of the Company and its subsidiaries and/or affiliates, as well as Company
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 Home Loan Center, Inc., located
in Irvine, California; provided, however, that travel to the Company’s other
offices in Charlotte 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 or her direct / indirect reports without any effect
hereunder.


 


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 $350,000 (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.  For all purposes
under this Agreement, the term “Base Salary” shall refer to the Base Salary as
in effect from time to time.


 


(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,
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.


 


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):


 


2

















 


	
  If
  to the Company:

  	
  Tree.com, Inc.

  
	
   

  	
  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.


 


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 


 


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“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 June 30th, 2008.


 


	
   

  	
  Tree.com, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Claudette Hampton

  
	
   

  	
  By: Claudette Hampton

  
	
   

  	
  Title: Senior Vice
  President, Human Resources

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ David Norris

  
	
   

  	
  David Norris

  



 


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EXECUTIVE STANDARD TERMS AND CONDITIONS


 


1A.          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 1A(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 2A 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 Company policy
pertaining to ethics, wrongdoing or conflicts of interest.


 


(d)           TERMINATION OR BREACH BY THE COMPANY OTHER THAN FOR
DEATH, DISABILITY OR CAUSE.  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, 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”).


 


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
subparagraph (d)(ii) 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 or her employment status and any amounts so earned
during the Severance Period.  Executive’s
right to the payments under these subparagraph (d)(ii) shall be subject to
Executive’s execution and non-revocation of a 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 2A of these
Standard Terms and Conditions.  Executive
acknowledges and agrees that the payments described in this Section 1A(d) constitutes
good and valuable consideration for such release.


 


(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.


 


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


 


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


 


2A

















 


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.


 


(g)           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 2A(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 Home Loan Center, Inc., 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 “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 one percent (5%) of the
outstanding capital stock of any publicly-traded corporation engaged in a
Competitive Activity if the stock of


 


3A

















 


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 2A(b) are a material inducement to the
Company’s entering into this Agreement.


 


(h)           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 or her 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 or her 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 or her employment
hereunder, apply for a period of twelve (12) months following such termination.


 


(i)            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 the Company or encourage (regardless of who initiates the contact) any such Customers
to use the facilities or services of any competitor of the Company.  For the purposes of this 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.


 


(j)            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 or her 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 


 


4A

















 


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 the Company (or any other Company business for which Executive
has direct or indirect responsibility during his or her 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.


 


(k)           COMPLIANCE WITH POLICIES AND PROCEDURES.  During the period that Executive is employed
with the Company hereunder, Executive shall adhere to the 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 Company policies (or the 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 2A
shall, to the extent provided in this Section 2A, survive the termination
or expiration of Executive’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 that any restriction in this Section 2A 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.


 


3A.          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 


 


5A

















 


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.


 


4A.          ASSIGNMENT;
SUCCESSORS.  Without
limiting the provisions of Section 2A(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. 
Further, it is the intent of the parties that this Agreement shall
survive the spin-off of LendingTree, LLC and shall be automatically assigned
to, assumed by, and binding upon the new parent company of LendingTree
(referred to herein as “Tree.com”) following the spin-off.  Following the spin-off, all references herein
to “Company” or “LendingTree” shall thereafter refer to Tree.com.


 


5A.          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.


 


6A.          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.


 


7A.          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 


 


6A

















 


obligations to Executive shall be fulfilled through compliance with its
obligations under Section 1A of the Standard Terms and Conditions.


 


Executive expressly agrees and understands that the remedy
at law for any breach by Executive of Section 2A 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 2A, 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 2A,
which may be pursued by or available to the Company.


 


8A.          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.


 


9A.          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.


 


10A.        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 1A(c) of this Standard
Terms and Conditions.


 


7A