Exhibit 10.48


 


CONFIDENTIAL SEVERANCE
AGREEMENT AND RELEASE


 


THIS CONFIDENTIAL SEVERANCE AGREEMENT AND RELEASE (“Agreement”) is made this 10th day of May, 2010, by and between Matthew A.
Packey (“Packey”) and Tree.com, Inc.,
for itself and on behalf of its subsidiaries including LendingTree, LLC (“Company”), with its principal office
in Charlotte, NC.


 


WHEREAS, Packey has been employed by the Company as Senior
Vice President, Chief Financial Officer;


 


WHEREAS, Packey has submitted his resignation and Company
has accepted such resignation and Packey and the Company desire to terminate
their employment relationship in an amicable and definitive manner and to
settle, compromise and resolve any and all claims they may have against each
other;


 


WHEREAS, Packey’s  last day in
the office is May 28, 2010 (“Termination
Date”); and 


 


WHEREAS, the Company, in exchange for the Release provided
by Packey herein, has agreed to provide Packey with certain additional
compensation which it is not otherwise obligated to provide.


 


NOW, THEREFORE, in consideration of the execution of this
Agreement, and for other good and valuable consideration, the parties hereto
agree as follows:


 


1.             Compensation.  Packey shall perform all normal duties
through May 28, 2010 and the Company will pay to Packey all salary
payments and other compensation due and payable, during the term of employment
through and including the Termination Date. 
On the next regularly scheduled Company pay date following the Termination
Date, the Company will also pay to Packey an amount equal to up to forty (40)
hours of any 2010 accrued but unused Paid Time Off (“PTO”)
balance.


 


2.             Employee Benefits.  From and after June 1, 2010, Packey
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 any other plan, policy or arrangement of the Company providing benefits or
perquisites to employees of the Company generally or individually.  Provided, however, that Packey 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 


 


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Reconciliation Act of 1986,
26 U.S.C. § 490B et seq. (“COBRA”)
(and with respect to which the Company will provide Packey with a separate
notice as required by federal law); and (ii) to elect the payment of
benefits to which Packey is entitled under the Tree.com, Inc. 401(k) Retirement
Savings Plan as provided under the terms of the plan.  If Packey elects COBRA coverage, upon
submission of proof payment for his COBRA coverage, Company will promptly
reimburse Packey for the amount that represents the employer’s portion of such
coverage from June 1, 2010 through February 15, 2011 or until such
time as Packey secures a position offering a benefit package that renders him
ineligible for COBRA coverage, whichever occurs sooner.


 


3.    Special
Exit Package.  Also as consideration
for Packey’s execution of this Agreement and his assent to its terms and
conditions, the Company shall:


 


a.             Pay Packey an
amount equal to seven (7) months’ Base Salary (calculated from his former
base salary of $312,500.00), payable in equal installments on the Company’s regularly
scheduled paydays over the seven (7) month period following his
Termination Date (the “Severance Period”).  If, however, Packey obtains other employment
or is otherwise compensated for services provided to any party during this
Severance Period, the Company’s obligation to make future payments to Packey
shall be offset against any compensation earned by him as a result such
employment or services provided.  Packey
agrees to inform the Company promptly of his employment status and any amounts
earned during the Severance Period.


 


b.             Pay Packey an
amount equal to forty (40) hours of PTO lost at the end of calendar year 2009
as well as all accrued, unused 2010 PTO, if any, in excess of the forty (40)
hours referenced in Section 1.


 


4.             Adequacy of
Consideration.  Packey understands
that the Special Exit Package provided hereunder by the Company is
discretionary in nature, is not an admission of liability by the Company, is
not required of the Company in the absence of this Agreement, and constitutes
adequate consideration for the Agreement.


 


5.             Return of
Property.  Packey acknowledges that
the Company has returned to him all of his personal effects and property which
were in the Company’s possession or control. 
Packey 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
Packey’s possession or control, including all copies and summaries of any of
the Company’s 


 


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confidential
or proprietary information.  Packey
further affirms that he understands his obligation to keep confidential the
business and proprietary information of the Company and that he will not
discuss or disclose such information with anyone.


 


6.    Release.


 


(a) As a
material inducement to the Company to provide the Special Exit Package and any
other consideration described herein, Packey, for himself and his heirs,
executors, administrators and assigns, hereby irrevocably and unconditionally
forever releases and discharges the Company and its predecessors, successors,
affiliates, benefits plans, assigns, and their respective directors, officers,
shareholders, trustees, administrators, employees, representatives and agents
from any and all actual or potential claims, demands, actions, causes of action
or liabilities of any kind or nature, whether known or unknown, including, but
not limited to, all claims related to or arising out of his employment with the
Company, whether based on tort, contract (express or implied) or any federal,
state or local law, statute or regulation, including, but not limited to,
claims brought under: (i) the Age Discrimination in Employment Act, 29
U.S.C. § 621 et seq.; (ii) the Employee Retirement Income Security Act, 29
U.S.C. § 1001 et seq.; (iii) the Family and Medical Leave Act, 29 U.S.C. §
2611 et seq.; (iv) Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2001e et seq., as amended; (v) the Americans with Disabilities Act, 42
U.S.C. § 12101 et seq.; (vi) the discrimination or other employment laws
of the State of North Carolina; and (vii) any other claims for personal
injury, compensatory or punitive damages or attorneys’ fees.  (This release does not apply to claims that
may arise after the date this Agreement is executed or to any claims to vested
benefits under the employee retirement benefit plan.)


 


(b)  ADEA Claims.  Packey hereby releases and discharges
Company, its subsidiaries, affiliates, and their respective parents, direct or
indirect subsidiaries, divisions, affiliates and related companies or entities,
any predecessors, successors, joint ventures, and parents of any such entity,
and any and all of their respective past or present shareholders, partners,
directors, officers, employees, consultants, independent contractors, trustees,
administrators, insurers, agents, attorneys, representatives and fiduciaries,
including without limitation all persons acting by, through, under or in
concert with any of them (collectively, the “Released
Parties”), from any and all claims, 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 


 


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Employment
Act of 1967, as amended (“ADEA”), and
the applicable rules and regulations promulgated thereunder.  Packey acknowledges and understands that ADEA
is a federal statute that prohibits discrimination on the basis of age in
employment, benefits and benefit plans. 
Packey specifically agrees and acknowledges that:  (A) the release in this Section 6
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 his 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 6(b) only and that, if he chooses not to so
revoke, the agreement in this Section 6 shall then become effective and
enforceable and the Special Exit Package shall then be made to him in
accordance with the terms of this Agreement. 
To cancel this Agreement, Packey 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 (7) 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.


 


7.             Complete Bar.  Packey agrees that the parties released above
in paragraph 6 may plead this Agreement as a complete bar to any action or suit
before any court or administrative body with respect to any claim released
herein.


 


8.             Confidentiality,
Non-disparagement and Continuing Obligations.


 


(a)               Packey agrees, promises, and covenants that the terms
and provisions of this Agreement shall remain and be kept strictly confidential
by him and shall not be disclosed except as provided herein.  Without the express written agreement of the
Company, or unless required to do so by law, Packey agrees to take every
precaution to disclose this information only to those attorneys, accountants, governmental
entities, and family members who have a 


 


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reasonable need to know such
information.  To the extent required by
law or applicable regulation, Packey may also disclose the provisions of this
Agreement to the appropriate taxing authorities.  This confidentiality provision applies to and
expressly prohibits all communications by Packey to any person or entity,
including, without limitation, communications to any present, former or future
Company employee.


 


(b)           Packey promises that
he will not 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.


 


(c)           Additionally, Packey
acknowledges that, during his employment with the Company, he may have learned
information that is confidential to the Company (“Confidential
Information”).  Such
Confidential Information may have included (among other things): purchasing and
product information; sales and account information; customer information; sales
and marketing plans and strategies; pricing strategies; profit margins; pricing
reports; information concerning claims or potential claims against the Company;
personnel information, and any other information of a similar nature.  Packey agrees that he will not disclose any
Confidential Information to any person (including any Company employee who does
not need to know such Confidential Information), agency, institution, company
or other entity without first obtaining the written consent of the Company.


 


(d)           Packey acknowledges
that his obligations governed by any agreements entered into with Company
regarding rights in intellectual property, non-competition and non-solicitation
remain in effect pursuant to their original terms.


 


9.             No Admission of
Liability.  Packey understands and
agrees that the Company admits no liability with respect to any claim related
to or arising out of the termination of Packey’s employment or any other
matters.


 


10.           References.  Any and all inquiries relating to Packey’s
employment with the Company shall be directed to the Company’s Senior Vice
President, Human Resources.  If asked
about Packey’s employment with the Company, the Company will only provide
neutral information pursuant to Company policy, consisting of dates of
employment and positions held.


 


11.           Entire Agreement.  This Agreement contains the entire agreement
between the parties and may be modified only in a writing executed in the same
manner as the original 


 


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Agreement;
and no agreements, representations, or statements of any party not contained
herein shall be binding on such party; provided, however,
that this Agreement does not supersede Packey’s Employment Agreement dated August 3,
2008, as amended, including without limitation, Sections 2(b)-(e).


 


12.           Controlling Law.  This Agreement shall be governed by and
construed in accordance with the laws of the state of North Carolina, as they
are applied to contracts made and to be wholly performed in this state,
regardless of choice of law principles to the contrary.  In addition, Packey consents to the
jurisdiction of any North Carolina court over any claims arising under or
relating to this Agreement.


 


13.           Enforcement.  Should any provision of this Agreement be declared or
be determined by any court of competent jurisdiction to be wholly or partially
illegal, invalid, or unenforceable (with the exception of the release contained
in paragraph 6), the legality, validity, and enforceability of the remaining
parts, terms, or provisions shall not be affected thereby, and said illegal,
unenforceable, or invalid part, term, or provision shall be deemed not to be a
part of this Agreement.


 


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


 


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


 


16.  Section 409A of the Internal Revenue
Code.  This Agreement and the benefits provided
hereunder are intended to be exempt from the requirements of Section 409A
of the Internal Revenue Code of 1986, as amended, and the rules,
regulations and other guidance issued thereunder because the
Agreement provides only a short-term deferral of compensation within the
meaning of Treasury Regulation 1.409A-1(b)(4) (or any successor or
replacement section thereto).  This Agreement shall be interpreted
consistently with such exemption.


 


17.  Acknowledgments.


 


(a) Packey acknowledges that he has had ample opportunity to
consult with his attorney prior to his execution of this Agreement, and was
encouraged and advised in writing to do so by the Company.


 


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(b)           Packey has carefully
read and fully understands all of the provisions and effects of this Agreement
and he knowingly and voluntarily entered into all of the terms set forth in
this Release.


 


(c)           Packey knowingly and
voluntarily intends to be legally bound by all of the terms set forth in this
Agreement.


 


(d)           Packey relied solely
and completely upon his own judgment or the advice of his attorney in entering
into this Agreement.


 


(e)           Packey’s signature
below evidences his understanding and voluntary waiver of all claims against
the Company.


 


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


 


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  /s/ Matthew A. Packey

  	
  (SEAL)

  
	
   

  	
   

  	
  MATTHEW A. PACKEY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Sworn to and subscribed
  before me  this 10 day
  of May 2010.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Frederica
  Jefferson-Eason

  	
   

  	
   

  
	
  Notary Public

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  My Commission Expires:
  10/21/2014

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  LENDINGTREE, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ Claudette Hampton

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title: SVP, Human
  Resources

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (CORPORATE
  SEAL)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Sworn to and subscribed
  before me  this 10 day
  of May 2010.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Frederica
  Jefferson-Eason

  	
   

  	
   

  
	
  Notary Public

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  My Commission Expires:
  10/21/2014

  	
   

  	
   

  
					



 


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