EXHIBIT 10.18
EMPLOYMENT CONTINUITY AGREEMENT
THIS AGREEMENT, dated as of March 3, 2003 (the "Agreement Date"), is
made by and between LendingTree, Inc. (the "Company"), a Delaware corporation,
and Xxxxx X. Xxxx (the "Executive").
ARTICLE I
PURPOSES
The Board of Directors of the Company (the "Board") has determined that
it is in the best interests of the Company and its shareholders to assure that
the Company will have the continued services of the Executive, despite the
possibility or occurrence of a Change in Control of the Company. The Board
believes that this objective may be achieved by giving key management employees
assurances of financial security in case of a pending or threatened Change in
Control, so that they will not be distracted by personal risks and will continue
to devote their full time and best efforts to the performance of their duties.
The Company and the Executive enter into this Agreement to induce the Executive
to remain an employee of the Company and to continue to devote Executive's full
energy to the Company's affairs. This Agreement is not intended to provide the
Executive with any right to continued employment with the Company, except in the
event of a Change of Control of the Company and subject to the provisions of
this Agreement. The effect of this Agreement on other agreements is explained in
Article IX below.
ARTICLE II
CERTAIN DEFINITIONS
When used in this Agreement, the terms specified below shall have the
following meanings:
2.1 "Agreement Term" means the period commencing on the Agreement
Date, as set forth above, and ending on the date of the Executive's termination
of employment with the Company if such termination of employment occurs prior to
the Effective Date. The Agreement Term shall also include the Employment Period.
Notwithstanding anything in this Agreement to the contrary, if a Change in
Control occurs and the Executive's employment with the Company had terminated
prior to the date on which the Change in Control occurs, and if it is reasonably
demonstrated by the Executive that such termination of employment (a) was at the
request of a third party who has taken steps reasonably calculated to effect a
Change in Control, or (b) otherwise arose in connection with or in anticipation
of a Change in Control, then for all purposes of this Agreement, the "Effective
Date" shall mean the date immediately prior to the date of such termination of
employment.
2.2 "Accrued Obligation." See Section 5.4(a).
2.3 "Annual Base Salary." See Section 3.3(a).
2.4 "Annual Bonus." See Section 3.3(b).
2.5 "Cause." See Section 4.3.
2.6 "Change in Control" means (i) the acquisition by any Person of
shares of the Company's stock representing more than 50.0% of the total voting
power of the Company; (ii) the following individuals cease for any reason to
constitute a majority of the number of directors then serving: individuals who,
on the date hereof, constitute the Board and any new director (other than a
director whose initial assumption of office is in connection with an actual or
threatened election contest, including but not limited to a consent
solicitation, relating to the election of directors of the Company) whose
appointment or election by the Board or nomination for election by the Company's
stockholders was approved or recommended by a vote of at least two-thirds (2/3)
of the directors then still in office who either were directors on the date
hereof or whose appointment, election or nomination for election was previously
so approved or recommended; (iii) any merger, share exchange, consolidation or
other reorganization or business combination in which the Company is not the
surviving or continuing corporation or in which the Company's stockholders do
not control greater than 50.0% of the voting power of the surviving or
continuing corporation, or in which the Company's stockholders become entitled
to receive cash, securities of the Company other than voting common stock, or
securities of another issuer; or (iv) the stockholders of the Company approve a
plan of complete liquidation or dissolution of the Company or there is
consummated an agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets, other than a sale or disposition by
the Company of all or substantially all of the Company's assets to an entity, at
least 50.0% of the combined voting power of the voting securities of which are
owned by stockholders of the Company in substantially the same proportions as
their ownership of the Company immediately prior to such sale. For purposes of
this Section, the term "Person" shall have the meaning given in Section 3(a)(9)
of the Securities Exchange Act of 1934, as amended, as modified and used in
Sections 13(d) and 14(d) thereof, except that such term shall not include: (i)
the Company or any of its subsidiaries; (ii) a trustee or other fiduciary
holding securities under an employee benefit plan of the Company or any of its
affiliates; (iii) an underwriter temporarily holding securities pursuant to an
offering of such securities; or (iv) a corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company.
2.7 "Code" means the Internal Revenue Code of 1986, as amended.
2.8 "Disability." See Section 4.1.
2.9 "Disability Effective Date." See Section 4.1
2
2.10 "Effective Date" means the first date during the Agreement
Term on which a Change in Control occurs.
2.11 "Employment Period" means the period commencing on the
Effective Date and ending on the second anniversary of such date.
2.12 "Incentive Plans." See Section 3.2.
2.13 "Performance Period." See Section 3.3(b).
2.14 "Plans." See Section 3.3(c).
2.15 "Prior Year Annual Bonus" means the total amount of the annual
bonus that was paid to the Executive during the twelve-month period immediately
preceding the Effective Date, or which is payable with respect to that period.
2.16 "Termination Date" means the date of termination of the
Executive's employment; provided, however, that if the Executive's employment is
terminated by reason of Disability, then the Termination Date shall be the
Disability Effective Date (as defined in Section 4.1).
2.17 "Welfare Plans." See Section 3.3(d).
ARTICLE III
TERMS OF EMPLOYMENT
3.1 Position and Duties.
(a) The Company hereby agrees to continue the Executive
in its employ during the Employment Period and, subject to Article IV of this
Agreement, the Executive agrees to remain in the employ of the Company subject
to the terms and conditions hereof.
(b) During the Employment Period, the Executive (i) will
devote his knowledge, skill and best efforts on a full-time basis to performing
his duties and obligations to the Company (with the exception of absences on
account of illness or vacation in accordance with the Company's policies and
civic and charitable commitments not involving a conflict with the Company's
business), (ii) will comply with the directions and orders of the Board of
Directors, the Chief Executive Officer or other superior officer of the Company
with respect to the performance of his duties, and (iii) will comply with the
provisions of Article XI.
3.2 Vesting of Outstanding Incentive Awards. On the Effective
Date, the Executive shall become fully vested in any and all stock option awards
granted to the Executive under the Company's 1997 Stock Option Plan, 1998 Stock
Option Plan, 1999 Incentive Option Plan, Amended and Restated 1999 Stock
Incentive Plan, the 2001 Stock Incentive Plan of LendingTree, Inc., the Amended
and Restated
3
2001 Stock Incentive Plan of LendingTree, Inc., and any similar plan or other
arrangement of the Company ("Incentive Plans") which have not become exercisable
as of the Effective Date, and such stock option awards shall remain exercisable
until the applicable option expiration date. All forfeiture conditions that as
of the Effective Date are applicable to any restricted stock, phantom stock
unit, stock bonus, or other stock-based award granted to the Executive by the
Company pursuant to the Incentive Plans shall lapse immediately.
3.3 Compensation.
(a) Base Salary. During the Employment Period, the
Executive shall receive an annual base salary ("Annual Base Salary"), which
shall be paid at a monthly rate at least equal to twelve times the highest
monthly base salary paid or payable (including any base salary which has been
earned but deferred) to the Executive by the Company in respect of the
twelve-month period immediately preceding the month in which the Effective Date
occurs. During the Employment Period, the Annual Base Salary shall be reviewed
no more than 12 months after the last salary increase awarded to the Executive
prior to the Effective Date, and shall be increased at any time and from time to
time as shall be substantially consistent with increases in base salary awarded
to other peer Executives of the Company. Annual Base Salary shall not be reduced
after any such increase unless such reduction is part of a policy, program or
arrangement applicable to peer Executives of the Company and of any successor
entity, and the term Annual Base Salary as used in this Agreement shall refer to
Annual Base Salary as so adjusted.
(b) Annual Bonus. In addition to Annual Base Salary, the
Company shall grant or cause to be granted to the Executive a bonus award
opportunity (the "Annual Bonus") for each Performance Period which ends during
the Employment Period. "Performance Period" means each period of time designated
in accordance with any annual incentive award arrangement which is based upon
performance. The Executive's target and maximum Annual Bonus with respect to any
Performance Period shall not be less than the largest target and maximum annual
incentive award payable with respect to the Executive under the Company's annual
incentive program as in effect during the twelve-month period immediately
preceding the Effective Date.
(c) Incentive, Savings and Retirement Plans. During the
Employment Period, the Executive shall be entitled to participate in all
incentive, savings and retirement plans, practices, policies and programs
("Plans") applicable generally to other peer Executives of the Company, but in
no event shall such Plans provide the Executive with incentives or savings and
retirement benefits which, in each case, are less favorable, in the aggregate
than the greater of (i) those provided by the Company for the Executive under
such Plans as in effect at any time during the 90-day period immediately
preceding the Effective Date, or (ii) those provided generally at any time after
the Effective Date to other peer Executives of the Company. The Plans shall
include both tax-qualified retirement plans and nonqualified retirement plans.
4
(d) Welfare Benefit Plans. During the Employment Period,
the Executive and/or the Executive's family, as the case may be, shall be
eligible for participation in and shall receive all benefits under welfare
benefit plans, practices, policies and programs that provide benefits including,
but not limited to, medical, prescription, dental, disability, salary
continuance, employee life, group life, accidental death and travel accident
insurance benefits ("Welfare Plans"), but in no event shall such Welfare Plans
provide the Executive with benefits which are less favorable, in the aggregate
than the greater of (i) those provided by the Company for the Executive under
such Welfare Plans as were in effect at any time during the 90-day period
immediately preceding the Effective Date, or (ii) those provided generally at
any time after the Effective Date to other peer Executives of the Company.
(e) Other Employee Benefits. During the Employment
Period, the Executive shall be entitled to other employee benefits and
perquisites in accordance with the most favorable plans, practices, programs and
policies of the Company, as in effect with respect to the Executive at any time
during the 90-day period immediately preceding the Effective Date, or if more
favorable, as in effect generally with respect to other peer Executives of the
Company. These other employee benefits and perquisites include, but are not
limited to, vacation, use of a Company car, parking benefits, financial planning
services, and one (1) month of paid sabbatical following completion of three (3)
full years of employment with the Company.
(f) Subsidiaries. To the extent that immediately prior to
the Effective Date, the Executive has been on the payroll of, and participated
in the incentive or employee benefit plans of, a subsidiary of the Company, the
references to the Company contained in Sections 3.3(a) through 3.3(e) and the
other Sections of this Agreement referring to benefits to which the Executive
may be entitled shall be read to refer to such subsidiary.
ARTICLE IV
TERMINATION OF EMPLOYMENT
4.1 Disability. During the Employment Term, the Company may
terminate the Executive's employment upon the Executive's Disability. The
Executive's employment shall terminate effective on the 30th day (the
"Disability Effective Date") after the Executive's receipt of written notice of
termination from the Company unless, before the Disability Effective Date, the
Executive shall have resumed the full-time performance of the Executive's
duties. "Disability" means a condition, resulting from bodily injury or disease,
that renders, and for a six consecutive month period has rendered, the Executive
unable to perform substantially the duties pertaining to his employment with the
Company. A return to work of less than 14 consecutive days will not be
considered an interruption in the Executive's six consecutive months of
disability. Disability will be determined by the Company on the basis of medical
evidence satisfactory to the Company.
5
4.2 Death. The Executive's employment shall terminate
automatically upon the Executive's death during the Employment Term.
4.3 Cause. The Company may terminate the Executive's employment
during the Employment Period for Cause. For purposes of this Agreement, "Cause"
means (a) fraud or material misappropriation with respect to the business or
assets of the Company, (b) persistent refusal or willful failure of the
Executive to perform substantially his duties and responsibilities to the
Company, which continues after the Executive receives notice of such refusal or
failure, (c) conviction of a felony or crime involving moral turpitude, or (d)
the use of drugs or alcohol that interferes materially with the Executive's
performance of his duties.
4.4 Constructive Termination. The Executive may terminate the
Executive's employment for Constructive Termination at any time during the
Employment Period. "Constructive Termination" means any material breach of this
Agreement by the Company during the Employment Period, including:
(a) the failure to maintain the Executive in the office
or position, or in a substantially equivalent office or position, held by the
Executive immediately prior to the Effective Date;
(b) a material adverse alteration in the nature or scope
of the Executive's position, duties, functions, responsibilities or authority as
compared to the nature or scope immediately prior to the Effective Date;
(c) any failure by the Company to provide the Executive
with the compensation and benefits described in Section 3.3, including any
reduction of the Executive's Annual Base Salary in violation of Section 3.3(a);
(d) the failure of any successor to the Company to assume
this Agreement;
(e) a relocation of more than 50 miles of (i) the
Executive's workplace, or (ii) the principal offices of the Company (if such
offices are the Executive's workplace), in each case without the consent of the
Executive; or
An act or omission shall not constitute Constructive Termination unless
(1) the Executive gives written notice to the Company indicating that the
Executive intends to terminate employment under this Section 4.4; (2) the
Executive's voluntary termination occurs within 60 days after the Executive
knows or reasonably should know of an event described above, or within 60 days
after the last in a series of such events, and (3) the Company has failed to
remedy the event described above, as the case may be, within 30 days after
receiving the Executive's written notice. If the Company remedies the event
described above, as the case may be, within 30 days after receiving the
Executive's written notice, the Executive may not terminate employment under
this Section 4.4 on account of the event specified in the Executive's notice.
6
ARTICLE V
OBLIGATIONS OF THE COMPANY UPON TERMINATION
5.1 If by the Executive for Constructive Termination or by the
Company Other Than for Cause or Disability. If, during the Employment Period,
the Company shall terminate the Executive's employment other than for Cause or
Disability, or if the Executive shall terminate employment for Constructive
Termination, the Company's obligations to the Executive shall be as follows:
(a) The Company shall, within 30 business days of such
termination of employment, pay the Executive a cash payment equal to the sum of
the following amounts:
(i) to the extent not previously paid, the
Annual Base Salary and any accrued paid time off through the
Termination Date;
(ii) an amount equal to the product of (i) the
target Annual Bonus (as defined in Section 3.3(b)) for the Performance
Period in which the Termination Date occurs multiplied by (ii) a
fraction, the numerator of which is the number of days actually worked
during such Performance Period, and the denominator is the total number
of days included in the Performance Period; and
(iii) all amounts previously deferred by the
Executive under any nonqualified deferred compensation plan sponsored
by the Company, together with any accrued earnings thereon, and not yet
paid by the Company.
(b) The Company shall, within 30 business days of such
termination of employment, pay the Executive a cash payment equal to two (2)
times the sum of the Executive's Annual Base Salary and the Prior Year Annual
Bonus.
(c) For a period of two (2) years following the
Termination Date, the Company shall continue to provide to the Executive and the
Executive's family welfare benefits which are at least as favorable as those
provided under the most favorable Welfare Plans of the Company applicable (i)
with respect to the Executive and his family during the 90-day period
immediately preceding the Termination Date, or (ii) with respect to other peer
Executives and their families during the Employment Period. In determining
benefits under such Welfare Plans, the Executive's annual compensation
attributable to base salary and incentives for any plan year or calendar year,
as applicable, shall be deemed to be not less than the Executive's Annual Base
Salary and Prior Year Annual Bonus. The cost of the welfare benefits provided
under this Section 5.1(c) shall not exceed the cost of such benefits to the
Executive immediately before the Termination Date or, if less, the Effective
Date. Notwithstanding the foregoing, if the Executive obtains comparable
coverage under any Welfare Plans sponsored by another employer, then the amount
of coverage required to be provided by the Company hereunder shall be reduced by
the amount of coverage provided by such other employer's Welfare Plans. The
Executive's rights under this Section shall be in addition to and not in lieu of
any post-termination continuation coverage or conversion rights the Executive
may have
7
pursuant to applicable law, including, without limitation, continuation coverage
required by Section 4980B of the Code.
(d) In lieu of continuing welfare benefits for the
Executive and the Executive's family in the manner described in Section 5.1(c)
above, the Company may in its discretion elect to pay the Executive, within 30
business days of the Termination Date, a lump sum cash payment equal to a
reasonable estimate of the after-tax value to the Executive and the Executive's
family of the welfare benefits that would have been continued pursuant to
Section 5.1(c) above. If the Company elects to make the payment described in
this Section 5.1(d), the Company shall not be obligated to continue to provide
to the Executive and the Executive's family welfare benefits described in
Section 5.1(c) above.
5.2 If by the Company for Cause. If the Company terminates the
Executive's employment for Cause during the Employment Period, this Agreement
shall terminate without further obligation by the Company to the Executive,
other than:
(a) the obligation immediately to pay the Executive in
cash the Executive's Annual Base Salary through the Termination Date, plus any
accrued paid time off, in each case to the extent not previously paid, and
(b) the Executive's rights to benefits under the terms of
any of the Plans, Welfare Plans and other employee benefit programs in which the
Executive was participating immediately prior to the Termination Date, pursuant
to Sections 3.3(c) through (e).
5.3 If by the Executive Other Than for Constructive Termination.
If the Executive terminates employment during the Employment Period other than
for Constructive Termination, Disability or death, this Agreement shall
terminate without further obligation by the Company to the Executive, other
than:
(a) the obligation immediately to pay the Executive in
cash the Executive's Annual Base Salary through the Termination Date, plus any
accrued paid time off, in each case to the extent not previously paid, and
(b) the Executive's rights to benefits under the terms of
any of the Plans, Welfare Plans and other employee benefit programs in which the
Executive was participating immediately prior to the Termination Date, pursuant
to Sections 3.3(c) through (e).
5.4 If by the Company for Disability. If the Company terminates
the Executive's employment by reason of the Executive's Disability during the
Employment Period, this Agreement shall terminate without further obligation to
the Executive, other than:
8
(a) the Company shall pay the Executive in cash all
amounts specified in Sections 5.1(a)(i), (ii), (iii) and 5.1(b), in each case,
to the extent unpaid as of the Termination Date (such amounts collectively, the
"Accrued Obligations"),
(b) the Executive's rights to benefits under the terms of
any of the Plans, Welfare Plans, and other employee benefit programs in which
the Executive was participating immediately prior to the Termination Date,
pursuant to Sections 3.3(c) through (e).
5.5 If upon Death. If the Executive's employment is terminated by
reason of the Executive's death during the Employment Period, this Agreement
shall terminate without further obligation to the Executive's legal
representatives under this Agreement, other than:
(a) the obligation immediately to pay the Executive's
estate or beneficiary in cash all Accrued Obligations (as defined in Section
5.4), and
(b) the rights of the Executive's legal representatives
to benefits under the terms of any of the Plans, Welfare Plans, and other
employee benefit programs in which the Executive was participating immediately
prior to the Termination Date, pursuant to Sections 3.3(c) through (e).
ARTICLE VI
EXPENSES AND INTEREST
6.1 Legal Fees and Other Expenses. The Company will pay all
reasonable fees and expenses, if any, (including, without limitation, legal fees
and expenses) that are incurred by the Executive to enforce this Agreement and
that result from a breach of this Agreement by the Company.
6.2 Interest. If the Company does not pay any amount due to the
Executive under this Agreement within three days after such amount became due
and owing, interest shall accrue on such amount from the date it became due and
owing until the date of payment at a annual rate equal to 200 basis points above
the base commercial lending rate published in The Wall Street Journal in effect
from time to time during the period of such nonpayment.
ARTICLE VII
NO ADVERSE EFFECT ON POOLING OF INTERESTS
Any benefits provided to the Executive under this Agreement may be
reduced or eliminated to the extent necessary, in the reasonable judgment of the
Board, to enable the Company to account for a merger, consolidation or similar
transaction as a pooling of interests; provided that (i) the Board shall have
exercised such judgment and approved the reduction by a vote of at least
two-thirds (2/3) of the directors then in office, (ii) the Board shall have
given the Executive written notice thereof prior to the Effective Date
9
and (iii) the determination of the Board shall be supported by the Company's
independent auditors.
ARTICLE VIII
NO SET-OFF OR MITIGATION
8.1 No Set-off by Company. The Executive's right to receive when
due the payments and other benefits provided for under this Agreement is
absolute, unconditional and subject to no set-off, counterclaim or legal or
equitable defense. Any claim which the Company may have against the Executive,
whether for a breach of this Agreement or otherwise, shall be brought in a
separate action or proceeding and not as part of any action or proceeding
brought by the Executive to enforce any rights against the Company under this
Agreement.
8.2 No Mitigation. The Executive shall not have any duty to
mitigate the amounts payable by the Company under this Agreement by seeking new
employment following termination. Except as specifically otherwise provided in
this Agreement, all amounts payable pursuant to this Agreement shall be paid
without reduction regardless of any amounts of salary, compensation or other
amounts which may be paid or payable to the Executive as the result of the
Executive's employment by another employer.
ARTICLE IX
NON-EXCLUSIVITY OF RIGHTS
9.1 Waiver of Other Severance Rights. To the extent that payments
are made to the Executive pursuant to Section 5.1 of this Agreement, the
Executive hereby waives the right to receive severance benefits under any plan
or agreement (including an offer of employment or employment contract) of the
Company or its subsidiaries which provides for severance benefits. However, no
waiver of severance benefits under another plan or agreement shall take effect
pursuant to this Agreement until the Effective Date.
9.2 Other Rights. Except as provided in Section 10.1, this
Agreement shall not prevent or limit the Executive's continuing or future
participation in any benefit, bonus, incentive or other plans provided by the
Company or any of its subsidiaries and for which the Executive may qualify, nor
shall this Agreement limit or otherwise affect such rights as the Executive may
have under any other agreements with the Company or any of its subsidiaries.
Amounts which are vested benefits or which the Executive is otherwise entitled
to receive under the terms of any plan or program of the Company or any of its
subsidiaries and any other payment or benefit required by law at or after the
Termination Date shall be payable in accordance with such plan, program or
applicable law except as expressly modified by this Agreement.
9.3 Effect On Other Employment Continuity Agreement. This
Agreement supercedes and replaces the Employment Continuity Agreement that the
Company and the Executive entered into as of April 27, 2000 (the "2000
Agreement"), which will
10
terminate as of the date on which this Agreement is executed. The Executive and
the Company agree that the 2000 Agreement is null and void.
ARTICLE X
OBLIGATIONS OF THE EXECUTIVE
10.1 Confidentiality.
(a) The Executive recognizes, by the virtue of the
Executive's employment with the Company, that the Executive will have access to
certain information relating to the Company. The Executive agrees that this
information is a valuable asset of the Company, and that use or knowledge of
this information by others would harm the Company. Therefore, the Executive
covenants and agrees that the Executive will not at any time during the
Agreement Term or for a period of one (1) year after the Executive's Termination
Date, reveal to any person or entity any of the trade secrets or confidential
information concerning the organization, business or finances of the Company or
of any third party which the Company is under an obligation to keep
confidential, except as may be required in the ordinary course of performing the
Executive's duties as an employee of the Company, and the Executive shall keep
secret such trade secrets and confidential information and shall not use or
attempt to use any such secrets or information in any manner which is designed
to injure or cause loss to the Company. Trade secrets or confidential
information shall include, but not be limited to, the Company's financial
statements and projections, expansion proposals, customer lists and details of
its Internet web site or business relationships with banks, lenders and other
parties not otherwise publicly available.
(b) Further, the Executive agrees that during the
Agreement Term the Executive shall not make, use or permit to be used any notes,
memoranda, reports, lists, records, drawings, sketches, specifications, software
programs, data, documentation or other materials of any nature relating to any
matter within the scope of the business of the Company or concerning any of its
dealings or affairs otherwise than for the benefit of the Company. The Executive
further agrees that the Executive shall not, for a period of one (1) year after
the Executive's Termination Date, use or permit to be used any such notes,
memoranda, reports, lists, records, drawings, sketches, specifications, software
programs, data, documentation or other materials, it being agreed that all of
the foregoing shall be and remain the sole and exclusive property of the Company
and that immediately upon the termination of the Executive's employment, the
Executive shall deliver all of the foregoing, and all copies thereof, to the
Company, at its main office, at the Company's expense.
10.2 Non-Hire.
(a) The Executive agrees that for a period of one (1)
year after the Executive's Termination Date, the Executive will not hire or
otherwise employ or retain, or knowingly permit (to the extent reasonably within
the Executive's control) any other entity or business which employs the
Executive or in which the Executive has any
11
ownership interest or is otherwise involved to hire or otherwise employ or
retain, any person who was employed by the Company as of the Executive's
Termination Date.
10.3 Enforcement.
(a) The Executive acknowledges that monetary damages will
not be an adequate remedy for the Company in the event of a breach of this
Article X, and that it would be impossible for the Company to measure damages in
the event of such a breach. Therefore, the Executive agrees that, in addition to
other rights that the Company may have, the Company is entitled to an injunction
preventing the Executive from any breach of this Article X.
(b) The obligations of the Executive under this Article X
shall survive the termination of the Executive's employment for the periods
specified herein, regardless of the reasons or method of termination. The
existence of any claim or cause of action that the Executive may have against
the Company, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company of these obligations.
(c) The restrictions in this Article X, to the extent
applicable, shall be in addition to any restrictions imposed upon the Executive
by statute or at common law.
(d) The parties hereby acknowledge that the restrictions
in this Article X have been agreed to by the parties hereto and are limited only
to those restrictions reasonably necessary to protect the Company from unfair
competition. The parties hereby agree that if the scope or enforceability of any
provision, paragraph or subparagraph of this Article X is an any way disputed at
any time, and should a court find that such restrictions are overly broad, the
court may modify and enforce the covenant to the extent that it believes to be
reasonable under the circumstances. Each provision, paragraph and subparagraph
of this Article X is separable from every other provision, paragraph and
subparagraph and constitutes a separate and distinct covenant.
ARTICLE XI
MISCELLANEOUS
11.1 No Assignment. The Executive's rights under this Agreement may
not be assigned or transferred in whole or in part, except that the personal
representative of the Executive's estate will receive any amounts payable under
this Agreement after the death of the Executive. This Agreement shall inure to
the benefit of and be enforceable by the Executive's legal representatives.
11.2 Successors. The rights and obligations of the Company under
this Agreement will inure to the benefit of and will be binding upon the
successors and assigns of the Company. Before or upon a Change in Control, the
Company shall obtain the agreement of the surviving or acquiring corporation
that it will succeed to the Company's rights and obligations under this
Agreement.
12
11.3 Rights Under the Agreement. The right to receive benefits
under the Agreement will not give the Executive any proprietary interest in the
Company or any of its assets. Benefits under the Agreement will be payable from
the general assets of the Company, and there will be no required funding of
amounts that may become payable under the Agreement, except to the extent
otherwise provided under the terms of the Plans or Welfare Plans. The Executive
will for purposes of this Agreement be a general creditor of the Company. The
interest of the Executive under the Agreement cannot be assigned, anticipated,
sold, encumbered or pledged and will not be subject to the claims of the
Executive's creditors.
11.4 Notice. For purposes of this Agreement, notices and all other
communications must be in writing and are effective when delivered or mailed by
United States registered mail, return receipt requested, postage prepaid,
addressed to the Executive or his personal representative at his last known
address. All notices to the Company must be directed to the attention of the
Corporate Secretary with a copy to the General Counsel. Such other addresses may
be used as either party may have furnished to the other in writing. Notices of
change of address are effective only upon receipt.
11.5 Miscellaneous. This instrument contains the entire agreement
of the parties. To the extent not governed by federal law, this Agreement will
be construed in accordance with the laws of the State of Delaware, without
reference to its conflict of laws rules. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and the writing is signed by the Executive and the Company.
A waiver of any breach of or compliance with any provision or condition of this
Agreement is not a waiver of similar or dissimilar provisions or conditions. The
invalidity or unenforceability of any provision of this Agreement will not
affect the validity or enforceability of any other provision of this Agreement,
which will remain in full force and effect. This Agreement may be executed in
one or more counterparts, all of which will be considered one and the same
agreement.
11.6 Tax Withholding. The Company may withhold from any amounts
payable under this Agreement any federal, state or local taxes that are required
to be withheld pursuant to any applicable law or regulation.
* * * * *
13
IN WITNESS WHEREOF, the Executive and the Company have executed this Agreement
as of the date first above written.
LENDINGTREE, INC.
By: ______________________________
Xxxxxxx X. Xxxxx
Chief Executive Officer
___________________________________
Xxxxx X. Xxxx
14
