1
Exhibit 10.7
REGISTRATION RIGHTS AGREEMENT
DATED AS OF SEPTEMBER 20, 1999
AMONG
LENDINGTREE, INC.
AND
SIGNATORIES LISTED HEREIN
2
TABLE OF CONTENTS
ARTICLE I
REGISTRATION RIGHTS
PAGE
Section 1.1 Demand Registration...................................... 1
Section 1.2 Piggyback Rights......................................... 4
Section 1.3 Holdback Agreement....................................... 6
Section 1.4 Registration Procedures.................................. 6
Section 1.5 Suspension of Dispositions............................... 8
Section 1.6 Registration Expenses.................................... 9
Section 1.7 Indemnification.......................................... 9
ARTICLE II
MISCELLANEOUS
Section 2.1 Notices................................................. 13
Section 2.2 Entire Agreement........................................ 13
Section 2.3 Non-Waiver.............................................. 14
Section 2.4 Transferees............................................. 14
Section 2.5 No Other Registration Rights............................ 14
Section 2.6 Severability............................................ 14
Section 2.7 Governing Law........................................... 14
Section 2.8 Construction............................................ 14
Section 2.9 Counterparts............................................ 15
Section 2.10 Amendments.............................................. 15
Section 2.11 Definitions............................................. 15
3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into
and effective as of September 20, 1999, by and among LendingTree, Inc., a
Delaware corporation (the "Company"), the holders of Preferred Stock or Common
Stock of the Company who are signatories hereto as of the date hereof and any
direct or indirect transferees of such holders who become parties to this
Agreement in accordance with the provisions of Section 2.4 hereof.
WHEREAS, the parties hereto desire to enter into this Agreement on the
terms set forth herein;
WHEREAS, capitalized terms used, but not otherwise defined herein shall
have the respective meanings indicated in Section 2.11 hereof.
In consideration of the premises, mutual covenants and agreements
hereinafter contained and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
ARTICLE I
REGISTRATION RIGHTS
Section 1.1 Demand Registration.
(a) Request for Registration.
(i) At anytime after the earlier of (A) the third
anniversary of the date hereof and (B) one hundred eighty (180) days after the
consummation by the Company of an underwritten public offering of its Common
Stock, a Preferred Holder or Preferred Holders who collectively own at least
thirty percent (30%) of the Registrable Shares held by all Preferred Holders,
may request the Company, in writing (a "Demand Request"), to effect the
registration under the Securities Act of all or part of its Registrable Shares
(a "Demand Registration").
(ii) In addition, at any time after the earlier of
(A) the third anniversary of the date hereof and (B) one hundred eighty (180)
days after the consummation by the Company of an underwritten public offering of
Common
1
4
Stock, if the Company shall then be qualified to use Form S-3 promulgated under
the Securities Act or any successor form thereto, a Holder or Holders may make a
Demand Request for registration of Registrable Shares on Form S-3 or such
successor form; provided, however, that the aggregate market value (based on the
current market price) of the Registrable Shares to which such Demand Request
relates must be at least $500,000; provided further, that the Company shall not
be required to effect a Demand Registration under this Section 1.1 (a)(ii) if it
shall have effected a Demand Registration within the previous one hundred eighty
(180) days. As used in this Agreement, "Requesting Holder" means a Holder that
makes a Demand Request (regardless of whether such Demand Request is made
pursuant to Section 1.1(a)(i) or this Section 1.1(a)(ii)).
(iii) Each Demand Request shall specify the number of
Registrable Shares proposed to be sold. Subject to Section 1.1(f), the Company
shall file the Demand Registration within ninety (90) days after receiving a
Demand Request (the "Required Filing Date") and shall use all its best efforts
to cause the same to be declared effective by the SEC as promptly as practicable
after such filing; provided, however, that (A) the Company need effect only an
aggregate of three (3) Demand Registrations pursuant to Demand Requests made
pursuant to Section 1.1(a)(i); provided further, that if any Registrable Shares
requested to be registered pursuant to a Demand Request made pursuant to Section
1.1(a)(i) are excluded from the applicable Demand Registration pursuant to
Section 1.1(d) below, the Holders shall have the right, with respect to each
such exclusion, to request one (1) additional Demand Registration pursuant to
Section 1.1(a)(i).
(b) Effective Registration and Expenses. A registration will
not count as a Demand Registration until it has become effective (unless the
Requesting Holders withdraw all their Registrable Shares and the Company has
performed its obligations hereunder in all material respects, in which case such
demand will count as a Demand Registration unless the Requesting Holders pay all
Registration Expenses in connection with such withdrawn registration or unless
such withdrawal is a result of a change in circumstances occurring following the
time of the Demand Request); provided, that if, after it has become effective,
an offering of Registrable Shares pursuant to a registration is interfered with
by any stop order, injunction, or other order or requirement of the SEC or other
governmental agency or court, such registration will be deemed not to have been
effected and will not count as a Demand Registration.
2
5
(c) Selection of Underwriters. The Requesting Holders of a
majority of the Registrable Shares to be registered in a Demand Registration
shall select the nationally recognized investment banking firm or firms to
manage the underwritten offering; provided, however, that such selection shall
be subject to the consent of the Company, which consent shall not be
unreasonably withheld or delayed.
(d) Priority on Demand Registrations. No securities to be sold
for the account of any Person (including the Company) other than a Requesting
Holder shall be included in a Demand Registration unless the managing
underwriter or underwriters shall advise the Company or the Requesting Holders
in writing that the inclusion of such securities will not materially and
adversely affect the price or success of the offering (a "Material Adverse
Effect"). Furthermore, in the event the managing underwriter or underwriters
shall advise the Company or the Requesting Holders that even after exclusion of
all securities of other Persons pursuant to the immediately preceding sentence,
the amount of Registrable Shares proposed to be included in such Demand
Registration by Requesting Holders is sufficiently large to cause a Material
Adverse Effect, the Registrable Shares of the Requesting Holders to be included
in such Demand Registration shall equal the number of shares which the Company
is so advised can be sold in such offering without a Material Adverse Effect and
such shares shall be allocated pro rata among the Requesting Holders on the
basis of the number of Registrable Shares requested to be included in such
registration by each such Requesting Holder.
(e) Rights of Nonrequesting Owners. Upon receipt of any Demand
Request, the Company shall promptly (but in any event within ten (10) days) give
written notice of such proposed Demand Registration to all other Holders, who
shall have the right, exercisable by written notice to the Company within twenty
(20) days of their receipt of the Company's notice, to elect to include in such
Demand Registration such portion of their Registrable Shares as they may
request. All Holders requesting to have their Registrable Shares included in a
Demand Registration in accordance with the preceding sentence shall be deemed
to be "Requesting Holders" for purposes of this Section 1.1 and Section 1.2.
(f) Deferral of Filing. The Company may defer the filing (but
not the preparation) of a registration statement required by this Section 1.1
until a date not later than one hundred twenty (120) days after the Required
Filing Date (or, if longer, one hundred twenty (120) days after the effective
date of the registration statement contemplated by clause (ii) below) if (i) at
the time the Company receives
3
6
the Demand Request, the Company or any of its subsidiaries is engaged in
confidential negotiations or other confidential business activities, disclosure
of which would be required in such registration statement (but would not be
required if such registration statement were not filed), and the Board of
Directors of the Company determines in good faith that such disclosure would be
materially detrimental to the Company and its stockholders or would have a
material adverse effect on any such confidential negotiations or other
confidential business activities, or (ii) prior to receiving the Demand Request,
the Board of Directors of the Company had determined to effect a registered
underwritten public offering of the Company's securities for the Company's
account and the Company had taken substantial steps and is proceeding with
reasonable diligence to effect such offering. A deferral of the filing of a
registration statement pursuant to this Section 1.1(f) shall be lifted, and the
requested registration statement shall be filed forthwith, if, in the case of a
deferral pursuant to clause (i) of the preceding sentence, the negotiations or
other activities are disclosed or terminated, or, in the case of a deferral
pursuant to clause (ii) of the preceding sentence, the proposed registration for
the Company's account is abandoned. In order to defer the filing of a
registration statement pursuant to this Section 1.1(f), the Company shall
promptly (but in any event within ten (10) days), upon determining to seek such
deferral, deliver to each Requesting Holder a certificate signed by an executive
officer of the Company stating that the Company is deferring such filing
pursuant to this Section 1.1(f) and a general statement of the reason for such
deferral and an approximation of the anticipated delay. Within twenty (20) days
after receiving such certificate, the Holders of a majority of the Registrable
Shares held by the Requesting Holders and for which registration was previously
requested may withdraw such Demand Request by giving notice to the Company; and
if withdrawn, the Demand Request shall be deemed not to have been made for all
purposes of this Section 1.1. The Company may defer the filing of a particular
registration statement pursuant to this Section 1.1(f) only once.
Section 1.2 Piggyback Rights.
(a) Right to Piggyback. Each time the Company proposes,
following the completion by the Company of its initial underwritten public
offering of its Common Stock, to register any of its Common Stock under the
Securities Act (other than pursuant to an Excluded Registration) for sale to the
public and the registration form to be used may be used for the registration of
Registrable Shares, the Company shall give prompt written notice to the Holders
of its intention to effect such a registration (which notice shall be given not
less than twenty (20) days prior to the effective date of such registration
statement) and such notice shall offer such
4
7
Holders the opportunity to have any or all of the Registrable Shares included in
such registration statement, subject to the limitations contained in Section
1.2(b). The Holders desiring to have their Registrable Shares registered under
this Section 1.2 will so advise the Company in writing within ten days after the
date of receipt of such notice from the Company. Subject to Section 1.2(b)
below, the Company shall include in such registration statement all such
Registrable Shares so requested to be included therein; provided, however, that
the Company may at any time withdraw or cease proceeding with any such
registration if it shall at the same time withdraw or cease proceeding with the
registration of all other Common Stock originally proposed to be registered.
(b) Priority on Registrations. If the managing underwriter
advises the Company in writing that the number of Shares requested to be
included in the registration by all Persons (including the Company) exceeds the
number of Shares which can be sold in such offering without having an adverse
effect on such offering, including without limitation, the price at which such
securities can be sold (the "Maximum Offering Size"), the Company will be
obligated to include in such registration only (i) first, (x) if such
registration was initiated by the Company for the sale of Shares for its own
account, any and all Shares for sale by the Company, or (y) if such registration
was initiated by any Holder or Holders pursuant to any Demand Request, any and
all Shares for sale by the Requesting Holders pursuant to such Demand Request,
(ii) second, to the extent of any remaining Shares which may be sold in such
offering without exceeding the Maximum Offering Size, each other Holder shall be
entitled to include any and all Shares held by such Holder in the registration
(pro rata based on the total number of such Shares requested to be included in
such registration by each such Holder), (iii) third, to the extent of any
remaining Shares which may be sold in such offering without exceeding the
Maximum Offering Size, pro rata among any other Shares requested to be included
pursuant to any other registration rights that may have been, or may hereafter
be, granted by the Company (on the basis of the total number of Shares that each
holder thereof has requested to be registered) and (iv) fourth, if such
registration was not initiated by the Company for the sale of Shares for its own
account, to the extent of any remaining Shares which may be sold in such
offering, without exceeding the Maximum Offering Size, any Shares for sale by
the Company. No Person may participate in any registration under this Section
1.2 unless such Person (x) agrees to sell such Person's Registrable Shares on
the basis provided in any underwriting arrangements approved by the Company and
(y) completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements, and other documents required under the terms of such
underwriting arrangements.
5
8
Section 1.3 Holdback Agreement. Unless the managing underwriter
otherwise consents, each of the Holders, in the case of the Company initial
underwritten public offering, and each of the Holders participating in any
subsequent underwritten registration (in the case of such registration) agrees
not to effect any public sale or private offer or distribution of any Common
Stock or Common Stock Equivalents during the ten Business Days prior to such
underwritten registration and during such time period after such underwritten
registration (not to exceed one hundred eighty (180) days in the case of the
Company's initial public offering or ninety (90) days in the case of subsequent
public offerings) (except, if applicable, as part of such underwritten
registration) as the Company and the managing underwriter may agree; provided,
however, that such period shall not exceed the period that the Company's senior
executives are bound by a similar restriction.
Section 1.4 Registration Procedures. Whenever the Holders have
requested that any Registrable Shares be registered pursuant to this Agreement,
the Company will use its commercially reasonable efforts to effect the
registration and the sale of such Registrable Shares in accordance with the
intended method of disposition thereof, and pursuant thereto the Company will as
expeditiously as possible:
(a) prepare and file with the SEC a registration statement on
any appropriate form under the Securities Act with respect to such Registrable
Shares and use its commercially reasonable efforts to cause such registration
statement to become effective;
(b) prepare and file with the SEC such amendments,
post-effective amendments, and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of not less than one hundred
eighty (180) days (or such lesser period as is necessary for the underwriters in
an underwritten offering to sell unsold allotments) and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement;
(c) modify, at the request of any seller of Registrable
Shares, any information contained in such registration statement, amendment and
supplement thereto pertaining to such seller if such modification would be
required in order that
6
9
the prospectus not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading;
(d) furnish to each seller of Registrable Shares and the
underwriters of the securities being registered such number of copies of such
registration statement, each amendment and supplement thereto, the prospectus
included in such registration statement (including each preliminary prospectus),
and such other documents as such seller or underwriters may reasonably request
in order to facilitate the disposition of the Registrable Shares owned by such
seller or the sale of such securities by such underwriters;
(e) use its commercially reasonable efforts to register or
qualify such Registrable Shares under such other securities or blue sky laws of
such jurisdictions as the managing underwriter reasonably requests and do any
and all other acts and things which may be reasonably necessary or advisable to
enable such seller to consummate the disposition of the Registrable Shares owned
by such seller in such jurisdictions (provided, however, that the Company will
not be required to (A) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this subparagraph or
(B) consent to general service of process or taxation in any such jurisdiction);
(f) notify each seller of Registrable Shares promptly after it
shall receive notice thereof, of the time when such registration statement has
become effective or a supplement to any prospectus forming a part of such
registration statement has been filed;
(g) notify each seller of Registrable Shares promptly of any
request by the SEC for the amending or supplementing of such registration
statement or prospectus or for additional information or, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the occurrence of any other event requiring the preparation of a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Shares, such prospectus will not contain an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading;
(h) prepare and file with the SEC promptly any amendments or
supplements to such registration statement or prospectus which, in the opinion
of
7
10
counsel for the Company or the managing underwriter, is required in connection
with the distribution of the Registrable Shares;
(i) enter into such agreements (including underwriting
agreements in the managing underwriter's customary form) as are customary in
connection with an underwritten registration;
(j) advise each seller of such Registrable Shares, promptly
after it shall receive notice or obtain knowledge thereof, of the issuance of
any stop order by the SEC suspending the effectiveness of such registration
statement or the initiation or threatening of any proceeding for such purpose
and promptly use its best efforts to prevent the issuance of any stop order or
to obtain its withdrawal if such stop order should be issued;
(k) furnish to each seller of Registrable Shares and the
underwriters of the securities being registered legal opinions of the Company's
counsel in customary form;
(l) furnish to each seller of Registrable Securities and the
under writers of the securities being registered auditors' comfort letters in
customary form; and
(m) make available the members of the Company's management, as
requested by any seller of Registrable Shares or the underwriters of the
securities being registered, to provide reasonable assistance in connection with
such registration, including but not limited to the attendance by such members
of management at road show presentations.
Section 1.5 Suspension of Dispositions. Each Holder agrees by
acquisition of any Registrable Shares that, upon receipt of any notice (a
"Suspension Notice") from the Company of the happening of any event of the kind
which, in the opinion of the Company, requires the amendment or supplement of
any prospectus, such Holder will forthwith discontinue disposition of
Registrable Shares until such Holder's receipt of the copies of the supplemented
or amended prospectus, or until it is advised in writing (the "Advice") by the
Company that the use of the prospectus may be resumed, and has received copies
of any additional or supplemental filings which are incorporated by reference in
the prospectus, and, if so directed by the Company, such Holder will deliver to
the Company all copies, other than permanent file copies then in such Holder's
possession, of the prospectus covering such
8
11
Registrable Shares current at the time of receipt of such notice. In the event
the Company shall give any such notice, the time period regarding the
effectiveness of registration statements set forth in Section 1.4(b) hereof
shall be extended by the number of days during the period from and including the
date of the giving of the Suspension Notice to and including the date when each
seller of Registrable Shares covered by such registration statement shall have
received the copies of the supplemented or amended prospectus or the Advice.
Section 1.6 Registration Expenses. All expenses incident to the
Company's performance of or compliance with this Agreement, including, without
limitation, all registration and filing fees, all fees and expenses associated
with filings required to be made with the National Association of Securities
Dealers, Inc. ("NASD") (including, if applicable, the fees and expenses of any
"qualified independent underwriter" as such term is defined in Schedule E of the
By-Laws of the NASD, and of its counsel), as may be required by the rules and
regulations of the NASD, fees and expenses of compliance with securities or
"blue sky" laws (including reasonable fees and disbursements of counsel in
connection with "blue sky" qualifications of the Registrable Shares), internal
expenses of the Company, rating agency fees, printing expenses (including
expenses of printing certificates for the Registrable Shares in a form eligible
for deposit with Depository Trust Company and of printing prospectuses if the
printing of prospectuses is requested by a Holder of Registrable Shares),
messenger and delivery expenses, fees and expenses of counsel for the Company
and its independent certified public accountants (including the expenses of any
special audit or "cold comfort" letters required by or incident to such
performance), securities acts liability insurance (if the Company elects to
obtain such insurance), the fees and expenses of any special experts retained by
the Company in connection with such registration, reasonable fees and expenses
of up to one counsel for the Holders participating in the offering, and fees and
expenses of other Persons retained by the Company (all such expenses being
herein called "Registration Expenses") will be borne by the Company whether or
not any registration statement becomes effective; provided that in no event
shall Registration Expenses include any underwriting discounts or commissions
attributable to the sale of the Registrable Shares or fees and expenses of any
counsel (other than as permitted above), accountants, or other persons retained
or employed by the Holders.
Section 1.7 Indemnification.
(a) The Company agrees to indemnify and reimburse, to the
fullest extent permitted by law, each seller of Registrable Shares, and each of
its
9
12
employees, advisors, agents, representatives, partners, officers, and directors
and each Person who controls such seller (within the meaning of the Securities
Act or the Exchange Act) (collectively, the "Seller Affiliates") (A) against all
losses, claims, damages, liabilities and expenses, joint or several (including,
without limitation, attorneys' fees except as limited by subparagraph (iii)
below) arising out of or caused by any untrue or alleged untrue statement of a
material fact contained in any registration statement, prospectus, or
preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, or arising out of or
caused by any violation by the Company of any securities or blue sky laws of any
jurisdiction, (B) against any and all loss, liability, claim, damage, and
expense whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission or violation, and (C) against any and all
costs and expenses (including reasonable fees and disbursements of legal counsel
and other agents) as may be reasonably incurred in investigating, preparing, or
defending against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission or violation, to the extent
that any such expense or cost is not paid under subparagraph (A) or (B) above;
except insofar as the same are made in reliance upon and in strict conformity
with information furnished in writing to the Company by such seller or any
Seller Affiliate specifically for use therein or by such seller or any Seller
Affiliate's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after the Company has
furnished such seller or Seller Affiliate with a sufficient number of copies of
the same. The reimbursements required by this Section 1.7(a) will be made by
periodic payments during the course of the investigation or defense, as and when
bills are received or expenses incurred.
(b) In connection with any registration statement in which a
seller of Registrable Shares is participating, each such seller will indemnify
the Company, its directors, officers and other security holders, including
without limitation, each Person who controls the Company (within the meaning of
the Securities Act) against any losses, claims, damages, liabilities, and
expenses (including, without limitation, attorneys' fees except as limited by
subparagraph (iii) below) resulting from any untrue statement or alleged untrue
statement of a material fact contained in the registration statement,
prospectus, or preliminary prospectus or any amendment thereof or supplement
thereto or any omission or alleged omission of a material fact
10
13
required to be stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or alleged untrue
statement, or omission or alleged omission, is contained in any information or
affidavit so furnished in writing by such seller or any of its Seller
Affiliates specifically for use therein; provided that the obligation to
indemnify will be several, not joint and several, among such sellers of
Registrable Shares, and the liability of each such seller of Registrable Shares
will be in proportion to, and provided further that such liability will be
limited to, the net amount received by such seller from the sale of Registrable
Shares pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (A)
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification (provided that the failure to give such notice
shall not limit the rights of such Person) and (B) unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with legal counsel
reasonably satisfactory to the indemnified party; provided, however, that any
Person entitled to indemnification hereunder shall have the right to employ
separate legal counsel and to participate in the defense of such claim, but the
fees and expenses of such legal counsel shall be at the expense of such Person
unless (X) the indemnifying party has agreed to pay such fees or expenses, (Y)
the indemnifying party shall have failed to assume (or shall not be permitted to
assume such defense pursuant to clause (B) above) the defense of such claim and
employ legal counsel reasonably satisfactory to such Person or (Z) such Person
shall have been advised by counsel that there may be legal defenses available to
it or them which are different from or additional to those available to the
indemnifying parties. If such defense is assumed, the indemnifying party will
not be subject to any liability for any settlement made by the indemnified party
without its consent (but such consent will not be unreasonably withheld);
provided, however, that the withholding of consent to any settlement by any
indemnified party will not be deemed to be unreasonable if such settlement (i)
does not contain an unconditional release of such indemnified party from each
Person asserting any claim or (ii) contains any admission of fault on the part
of such Indemnified Party. An indemnifying party who is not entitled to, or
elects not to, assume the defense of a claim will not be obligated to pay the
fees and expenses of more than one legal counsel for all parties indemnified by
such indemnifying party with respect to such claim (and one local counsel in
each jurisdiction where engagement of local counsel is necessary to defend such
claim), unless in the reasonable judgment of any indemnified party, a
11
14
conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim.
(d) Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 1.7(a) or Section 1.7(b) are
unavailable or insufficient (other than in accordance with the terms thereof) to
hold harmless an indemnified party in respect of any losses, claims, damages,
liabilities, or expenses (or actions in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, liabilities, or
expenses (or actions in respect thereof) in such proportion as is appropriate to
reflect the relative fault of the indemnifying party and the indemnified party
as well as any other relevant equitable considerations. The relative fault of
such indemnifying party and indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by such indemnifying party or indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The parties hereto agree that it
would not be just and equitable if contribution pursuant to this Section 1.7(d)
were determined by pro rata allocation (even if the Holders or any underwriters
or all of them were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to in this Section 1.7(d). The amount paid or payable by an indemnified
party as result of the losses, claims, damages, liabilities, or expenses (or
actions in respect thereof) referred to above shall be deemed to include any
legal or other fees or expenses reasonably incurred by such indemnified party in
connection with investigating or, except as provided in Section 1.7(c),
defending any such action or claim. Notwithstanding the provisions of this
Section 1.7(d), no Holder shall be required to contribute an amount greater than
the dollar amount of the proceeds received by such Holder with respect to the
sale of any Registrable Shares, less any amounts paid in indemnity. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Holders' obligations in
this Section 1.7(d) to contribute shall be several in proportion to the amount
of Registrable Shares registered by them and not joint.
12
15
ARTICLE II
MISCELLANEOUS
Section 2.1 Notices. Any notice or request specifically provided for or
permitted to be given under this Agreement must be in writing. Notice may be
served in any manner, including by facsimile or nationally recognized overnight
courier service, but shall be deemed delivered and effective as of the time of
actual delivery thereof to the addressee. For purposes of notice the addresses
of the parties shall be as follows:
if to the Company, to
LendingTree, Inc.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Chief Executive Officer
Facsimile No.: (000) 000-0000
with copies to (which shall not constitute notice):
Xxxxxxx, Phleger & Xxxxxxxx LLP
000 Xxxxxxxxxxxx Xxxxxx X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx X. Xxxxxxxxx, Esquire
Facsimile No.: (000) 000-0000
If to any Holder, at its address listed on the signature pages hereof.
Each party named above may change its address and that of its representative for
notice by the giving of notice thereof in the manner hereinabove provided.
Section 2.2 Entire Agreement. This Agreement sets forth the entire
agreement of the parties with respect to the matters set forth herein. This
Agreement supersedes and terminates any and all other agreements, oral or
written, between any of the parties with respect to such matters, including, but
not limited to that certain Amended and Restated Registration Rights Agreement
dated as of December 9, 1998, further amended as of May 25, 1999, among the
Company and securityholders
13
16
of the Company listed therein, and that certain Convertible Promissory Note and
Warrant Purchase Agreement dated July 13, 1999 by and among the Company and the
Investors (defined therein) and the provisions relating to registration rights
set forth or incorporated by reference in that certain Consulting Agreement
referred to in Section 5.8 of that certain Convertible Preferred Stock Purchase
Agreement dated as of September __, 1999 among the Company and the other
signatories listed thereto.
Section 2.3 Non-Waiver. The failure of any party to insist upon strict
performance of any provision hereof shall not constitute a waiver of, or
estoppel against asserting, the right to require such performance in the future,
nor shall a waiver or estoppel with respect to a later breach of a similar
nature or otherwise.
Section 2.4 Transferees. Other than in the case of transfers to the
public pursuant to an effective Registration Statement or sales to the public
pursuant to Rule 144 promulgated under the Securities Act, each Holder may (but
shall not be required to) cause any proposed transferee of any Common Stock or
Common Stock Equivalent or any interest therein held by him or it to agree, by
execution of a counterpart signature page hereto, to take and hold such Common
Stock or Common Stock Equivalent subject to the provisions and upon the
conditions specified in this Agreement and to become a party to this Agreement.
Section 2.5 No Other Registration Rights. Without the written consent
of the holders of a majority of the outstanding shares of Preferred Stock, the
Company will not grant any other registration rights to any Person.
Section 2.6 Severability. If any provision of this Agreement is held
invalid, such invalidity shall not affect the other provisions hereof which can
be given effect without the invalid provision, and to this end the provisions of
this Agreement are intended to be and shall be deemed severable.
Section 2.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware without
regard to its provisions concerning conflicts of law.
Section 2.8 Construction. The headings in this Agreement are inserted
for convenience and identification only and are not intended to describe,
interpret, define or limit the scope, extent, or intent of this Agreement or any
provision hereof. Whenever the context requires, the gender of all words used in
this Agreement shall
14
17
include the masculine, feminine, and neuter, and the number of all words shall
include the singular and the plural.
Section 2.9 Counterparts. This Agreement may be executed in any number
of counterparts with the same effect as if each of the parties had signed the
same document. All counterparts shall be construed together and shall constitute
one and the same instrument.
Section 2.10 Amendments. Any provision of this Agreement may be amended
or waived if, but only if, such amendment or waiver is in writing and is signed
by the Company and the Holders holding at least 66-2/3% of the Fully-Diluted
Common Shares held by all Holders.
Section 2.11 Definitions.
"Advice" shall have the meaning assigned in Section 1.5.
"Affiliate" shall mean, with respect to a specified Person, a Person that
directly, or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, the Person specified. The term
"control" (including the terms "controlling", "controlled by", or "under common
control with") for purposes of this definition shall mean the possession, direct
or indirect, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract, or otherwise.
"Business Day" shall mean a day on which federally chartered banks located in
New York City, are not required or authorized to close and not be open for
business (other than a Saturday or Sunday) under the Legal Requirements of the
United States.
"Common Stock" shall mean the common stock, par value $.01 per share, of the
Company.
"Common Stock Equivalent" shall mean (without duplication with any other Common
Stock or Common Stock Equivalent) rights, warrants, options, convertible
securities or convertible indebtedness, exchangeable securities or exchangeable
indebtedness, or other rights, exercisable for or convertible or exchangeable
into, directly or indirectly, Common Stock, whether at the time or upon the
occurrence of some future event.
15
18
"Company" shall have the meaning assigned in the introductory paragraph hereof.
"Demand Registration" shall have the meaning assigned in Section 1.1.
"Demand Request" shall have the meaning assigned in Section 1.1.
"Excluded Registration" shall mean a registration under the Securities Act of
securities registered on Form S-4 or S-8 or any similar successor form.
"Fully-Diluted Common Shares" shall mean, at any time, the then outstanding
Common Stock of the Company plus (without duplication) all Common Stock
issuable, whether at such time or upon passage of time or the occurrence of
future events, upon the exercise, conversion, or exchange of all
then-outstanding Common Stock Equivalents.
"Holder" means (i) a holder of Preferred Stock or Common Stock listed on a
signature page hereof as of the date of this Agreement and (ii) any direct or
indirect transferee of any such security holder who shall become a party to this
Agreement in accordance with Section 3.4.
"Legal Requirement" shall mean any and all applicable (a) federal, state or
local laws, whether of the United States or other jurisdiction (statutory and
administrative), rules, ordinances, codes and regulations, (b) judgments,
orders, writs, injunctions and decrees and (c) undertakings to or agreements
with any court or governmental agency.
"Material Adverse Effect" shall have the meaning assigned in Section 1.1(d).
"Maximum Offering Size" shall have the meaning assigned in Section 1.2(b).
"NASD" shall have the meaning assigned in Section 1.6.
"Person" shall mean a natural person, partnership (whether general or limited
and whether domestic or foreign), limited liability company, foreign limited
liability company, trust, estate, association, corporation, custodian, nominee
or any other individual or entity in its own or any representative capacity.
"Preferred Holder" means a Holder who owns Preferred Stock.
16
19
"Preferred Stock" shall mean the Series A Convertible Preferred Stock, par value
$0.01 per share, of the Company, the Series B Convertible Preferred Stock, par
value $.01 per share, of the Company, and/or the Series D Convertible Preferred
Stock, par value $0.01 per share, of the Company.
"Registrable Shares" means any Common Stock held by a Holder (including but not
limited to any Common Stock issuable upon conversion of any of the Preferred
Stock, Common Stock issued as a dividend or other distribution with respect to
any such shares and Common Stock acquired pursuant to the exercise of preemptive
rights); provided, however, that Registrable Shares shall not include any shares
(i) the sale of which has been registered pursuant to the Securities Act and
which shares have been sold pursuant to such registration or (ii) which have
been sold to the public pursuant to Rule 144(k) (or a successor rule or
regulation), as promulgated under the Securities Act.
"Registration Expenses" shall have the meaning assigned in Section 1.6.
"Requesting Holders" shall have the meaning assigned in Section 1.1(a).
"Required Filing Date" shall have the meaning assigned in Section 1.1(a).
"SEC" means the U.S. Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller Affiliates" shall have the meaning assigned in Section 1.7.
"Shares" shall mean the shares of Common Stock of the Company.
"Suspension Notice" shall have the meaning assigned in Section 1.5.
[The remainder of this page intentionally left blank]
17
20
IN WITNESS WHEREOF, the parties have hereunto executed this
Registration Rights Agreement as of September 20, 1999.
LENDINGTREE, INC.
By:
------------------------------------------
Xxxxxxx X. Xxxxx
Chief Executive Officer
18
21
CAPITAL Z FINANCIAL SERVICES
FUND II, L.P.
By: Capital Z Partners, L.P., its sole
general partner
By: Capital Z Partners, Ltd., its sole
general partner
By:
------------------------
Name:
-------------------------
Title:
-------------------------
19
22
CAPITAL Z FINANCIAL SERVICES
PRIVATE FUND II, L.P.
By: Capital Z Partners, L.P., its sole
general partner
By: Capital Z Partners, Ltd., its sole
general partner
By:
------------------------
Name:
-------------------------
Title:
-------------------------
20
23
GENERAL ELECTRIC CAPITAL
ASSURANCE COMPANY
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
21
24
GE CAPITAL RESIDENTIAL
CONNECTIONS CORPORATION
By:
------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
------------------------------------
Title: Sr. Vice President
------------------------------------
22
25
THE XXXXXXX XXXXX GROUP, INC.
By:
------------------------------------
Name: Xxxxxx Xxxxxxxxx, V.P.
------------------------------------
Title:
------------------------------------
23
26
XXXXX & XxXXXXXX RISK
CAPITAL HOLDINGS, LTD.
By:
------------------------------------
Name: Xxxxx Xxxxxxx
------------------------------------
Title: Chairman
------------------------------------
24
27
XXXXXXXXX.XXX INCORPORATED
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
25
00
XXXXX XXXXXX XXXX 0000, XX.
By: Stone Street 1999 Corp.
Its General Partner
By:
-------------------------------
Xxx X. Xxxxxxxx, Vice President
26
29
THE UNION LABOR LIFE INSURANCE
COMPANY ACTING ON BEHALF OF
ITS SEPARATE ACCOUNT P
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
27
30
------------------------------------
Xxxxxxx X. Xxxxx
28
31
------------------------------------
Xxxx X. Xxxxx
00
00
------------------------------------
Xxxxxx X. Xxxxxx
30
33
PHOENIX STRATEGIC CAPITAL
CORPORATION
By:
------------------------------------
Xxxxxxx X. Xxxxx
Executive Vice President
31
34
------------------------------------
Xxxxxxx X. Xxxxxxxx
32
35
------------------------------------
Xxxxxxx X. Xxxxxx
33
36
------------------------------------
Xxxx X. Xxxxxx
34
37
XXXX X. XXXXXX, ACF
XXXXXXXX XXXXXX/U/UT/UTMA
By:
------------------------------------
Xxxx X. Xxxxxx
35
38
XXXX X. XXXXXX ACF
XXXXXXX XXXXXX U/UT/UTMA
By:
------------------------------------
Xxxx X. Xxxxxx
36
39
---------------------------------------
Xxxxxxxx X. Xxxxx
37
40
---------------------------------------
W. Xxxxx Xxxxx, Xx.
38
41
---------------------------------------
Xxxxxxx X. Field
39
42
XXXXXXX X. AND XXXXX X.
XXXXXXXXX
--------------------------------------
Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxxxx
40
43
XXXXXXX INVESTMENTS LLC
By:
----------------------------------
Xxxxxx X. Xxxxxxx, Member
41
44
FINANCIAL INSTITUTION PARTNERS
II, L.P., by its General Partner, XXXXX
CAPITAL, L.L.C.
By:
----------------------------------
Xxxx X. Xxxxx
Managing Member
42
45
XXXXX INVESTMENT CORP., L.L.C.
By:
-----------------------------------
Xxxx X. Xxxxx
Managing Member
43
46
THE SEACRIS GROUP, LTD.
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
44
