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EXHIBIT 10.1
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LENDINGTREE, INC.
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SECURITIES PURCHASE AGREEMENT
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SEPTEMBER 29, 2000
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TABLE OF CONTENTS
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SECTION 1
PURCHASE AND SALE OF EQUITY RIGHTS; AUTHORIZATION OF SHARES AND WARRANTS...............1
1.1 PURCHASE OF EQUITY RIGHTS............................................1
1.2 AUTHORIZATION OF SHARES AND WARRANTS.................................1
SECTION 2
CLOSING DATES; DELIVERY................................................................2
2.1 CLOSING..............................................................2
2.2 DELIVERY.............................................................2
SECTION 3
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY...............................2
3.1 ORGANIZATION AND STANDING; ARTICLES AND BYLAWS.......................2
3.2 CORPORATE POWER......................................................2
3.3 CAPITALIZATION.......................................................2
3.4 AUTHORIZATION........................................................3
3.5 NO SOLICITATION......................................................3
3.6 REPORTS AND FINANCIAL STATEMENTS.....................................3
3.7 NO ADDITIONAL FILINGS................................................4
3.8 ACCESS TO INFORMATION................................................4
3.9 ADDITIONAL COVENANTS.................................................5
SECTION 4
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASERS............................5
4.1 ACCREDITED INVESTOR; EXPERIENCE; RISK................................5
4.2 INVESTMENT...........................................................5
4.3 RESTRICTED SECURITIES; RULE 144......................................5
4.4 AUTHORIZATION........................................................6
4.5 FURTHER LIMITATIONS ON DISPOSITION...................................6
4.6 LEGENDS..............................................................6
SECTION 5
REGISTRATION RIGHTS....................................................................7
5.1 PIGGYBACK REGISTRATION RIGHTS........................................7
5.2 UNDERWRITING.........................................................7
5.3 DELAY PERIOD.........................................................7
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SECTION 6
MISCELLANEOUS..........................................................................8
6.1 GOVERNING LAW........................................................8
6.2 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇....................................................8
6.3 SURVIVAL.............................................................8
6.4 SUCCESSORS AND ASSIGNS...............................................8
6.5 ENTIRE AGREEMENT; AMENDMENT..........................................8
6.7 NOTICES, ETC.........................................................9
6.8 DELAYS OR OMISSIONS.................................................10
6.9 COUNTERPARTS........................................................10
6.10 SEVERABILITY........................................................10
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LENDINGTREE, INC.
SECURITIES PURCHASE AGREEMENT
This Agreement is made as of September 29, 2000, among LENDINGTREE,
INC., a Delaware corporation (the "COMPANY"), Capital Z Financial Services Fund
II, L.P. ("CAPITAL Z FUND II") and Capital Z Financial Services Private Fund II,
L.P. ("CAPITAL Z PRIVATE FUND II" each of Capital Z Fund II and Capital Z
Private Fund II a "PURCHASER" and collectively the "PURCHASERS").
RECITALS
WHEREAS, the Company desires to sell, and Purchasers desire to
purchase, at an aggregate purchase price of $10,000,000 (the "PURCHASE PRICE")
equity rights in the form of the Equity Rights Certificate attached hereto as
Exhibit A (the "EQUITY RIGHTS"), which shall be initially exercisable in the
aggregate for (i) 1,253,918 shares (the "SHARES") of the Company's common stock,
par value $.01 per share (the "COMMON STOCK") and (ii) warrants to purchase an
aggregate of 225,000 shares of Common Stock at an exercise price per share of
$7.975 (the "WARRANTS").
WHEREAS, the Equity Rights to be purchased by each Purchaser shall be
initially exercisable for the respective number of Shares and Warrants set forth
beside such Purchaser's name on Schedule I (attached hereto).
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements set forth in this
Agreement, and intending to be legally bound hereby, the parties hereto agree as
follows:
SECTION 1
PURCHASE AND SALE OF EQUITY RIGHTS; AUTHORIZATION OF SHARES AND WARRANTS
1.1 PURCHASE OF EQUITY RIGHTS. Subject to the terms and conditions
hereof, at the Closing (as defined in Section 2 hereof) the Purchasers shall
purchase from the Company, and the Company shall sell and issue to the
Purchasers, the Equity Rights for the Purchase Price.
1.2 AUTHORIZATION OF SHARES AND WARRANTS. The Company has authorized
the issuance of the Shares and has reserved the Shares for issuance. The Company
has authorized the issuance of the Warrants and has reserved 225,000 shares of
Common Stock for issuance upon the exercise of the Warrants.
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SECTION 2
CLOSING DATES; DELIVERY
2.1 CLOSING. The closing of the purchase and sale of the Equity Rights
hereunder (the "CLOSING") shall take place on the date hereof at such time and
place as the Company and Purchasers shall agree (the actual time and date of the
Closing is hereinafter referred to as the "CLOSING DATE").
2.2 DELIVERY. At the Closing, the Company will deliver to the
Purchasers the Equity Rights, duly executed by the Company and the Purchasers
will deliver the Purchase Price to the Company by wire transfer of same-day
funds.
SECTION 3
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
The Company hereby represents, warrants and covenants to the Purchasers
with respect to the sale and issuance to the Purchasers of the Equity Rights, as
follows:
3.1 ORGANIZATION AND STANDING; ARTICLES AND BYLAWS. The Company is a
corporation duly organized and existing under the laws of the State of Delaware
and is authorized to exercise all its corporate powers, rights and privileges
and is in good legal standing in the State of Delaware. The Company has made
available to the Purchasers true and complete copies of its Certificate of
Incorporation, as amended ("Charter"), and Bylaws, as amended.
3.2 CORPORATE POWER. The Company has all requisite legal and corporate
power to execute and deliver this Agreement, the Equity Rights and the Warrants
and to issue the Equity Rights and the securities provided for thereunder, and
to carry out and perform its obligations under the terms hereunder and under
such documents.
3.3 CAPITALIZATION. As of July 31, 2000, the authorized capital stock
of the Company consisted of 100,000,000 shares of Common Stock, 18,663,384
shares of which were issued and outstanding and 10,000,000 shares of preferred
stock, par value $0.01 per share, none of which were issued and outstanding. All
such issued and outstanding shares have been duly authorized and validly issued,
and are fully paid and nonassessable and have been issued in compliance with
federal and state securities law. Except as contemplated herein, as of July 31,
2000, there were no options, warrants, conversion privileges or other rights
presently outstanding to purchase or otherwise acquire any authorized but
unissued shares of the capital stock or other securities of the Company, nor any
agreements or understandings with respect thereto, other than (i) options to
purchase 3,872,394 shares of Common Stock granted to eligible participants under
the Company's benefit plans and (ii) warrants to purchase 857,885 shares of
Common Stock. Neither the offer nor the issuance or sale of the Equity Rights,
nor the issuance of any security directly or indirectly provided for thereunder
will trigger any anti-dilution or similar provision under any
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Equity Security (as hereinafter defined) or of any agreement or instrument to
which the Company is a party or by which it is bound or affected, which shall
either automatically increase the number of shares or units of Equity Securities
issuable upon conversion of any securities or upon exercise of any warrant,
option or right to subscribe to or purchase any stock or similar security, or
decrease the consideration per share or unit of Equity Security to be received
by the Company upon such conversion or exercise. For the purposes of this
Agreement, "EQUITY SECURITY" shall mean any stock or similar security of the
Company or any security convertible or exchangeable, with or without
consideration, into or for any stock or similar security, or any security
carrying or representing any option, warrant or right to subscribe to or
purchase any stock or similar security, or any such option, warrant or right;
provided, that the Equity Rights and any security directly or indirectly
provided for thereunder shall not be included in the definition of Equity
Security.
3.4 AUTHORIZATION. All corporate action on the part of the Company, its
directors and stockholders necessary for the authorization, execution, delivery
and performance of this Agreement, the Equity Rights and the Warrants, the
authorization, sale, issuance and delivery of any security directly or
indirectly provided for thereunder and the performance of the Company's
obligations hereunder and thereunder have been taken. This Agreement, the Equity
Rights and the Warrants, when executed and delivered by the Company, shall
constitute valid and binding obligations of the Company enforceable in
accordance with their respective terms, subject to laws of general application
relating to bankruptcy, insolvency and the relief of debtors, and rules of law
governing specific performance, injunctive relief or other equitable remedies.
The Common Stock issuable upon exercise of the Warrants and any other shares of
capital stock directly or indirectly issuable upon the exercise of the Equity
Rights (based upon the market price of the Common Stock on the date hereof) have
been duly and validly reserved for issuance, and upon issuance will be duly and
validly issued, fully paid and nonassessable, free of pre-emptive rights and
restrictions on transfer, and the Company shall periodically reserve such
additional shares of capital stock, if any, as may be necessary to satisfy the
Company's obligations under the Warrants and Equity Rights; provided, however,
that the Equity Rights, the Shares, the Warrants, the Common Stock issuable upon
exercise of the Warrants and any other security directly or indirectly provided
for thereunder (collectively the "SECURITIES") will be subject to applicable
restrictions on transfer under state and/or federal securities laws.
3.5 NO SOLICITATION. None of the Company, any of its affiliates as
defined in Rule 501(b) under the Securities Act of 1933, as amended, (the
"SECURITIES ACT") or any person authorized to act on behalf of any such person
(excluding the Purchasers, as to which no representation is made) has engaged in
any form of general solicitation or general advertising (as such terms are
defined in Rule 502(c) under the Securities Act) in connection with the proposed
offering of the Equity Rights, the Shares and Warrants.
3.6 REPORTS AND FINANCIAL STATEMENTS. The Company has filed all
required registration statements, prospectuses, reports, schedules, forms,
statements and other documents required to be filed by it with the Securities
and Exchange Commission (the "SEC") (collectively, including all exhibits
thereto, the "COMPANY SEC REPORTS"). None of the Company
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SEC Reports, as of their respective dates (and, if amended or superseded by a
filing prior to the date of this Agreement or the Closing Date, then on the date
of such filing), contained any untrue statement of a material fact or omitted or
will omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading. Each of the financial statements (including the related
notes) included in the Company SEC Reports presents fairly, in all material
respects, the financial position and results of operations and cash flows of the
Company as of the respective dates or for the respective periods set forth
therein, all in conformity with United States generally accepted accounting
principles ("GAAP") consistently applied during the periods involved except as
otherwise noted therein, and subject, in the case of the unaudited interim
financial statements, to the absence of notes and normal year-end adjustments
that have not been and are not expected to be material in amount. All of such
Company SEC Reports, as of their respective dates (and as of the date of any
amendment to the respective Company SEC Report), complied as to form in all
material respects with the applicable requirements of the Securities Act and the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder. Except as disclosed in the Company SEC Reports filed
prior to the date hereof, since June 30, 2000, (i) the Company has not incurred
any liabilities that are of a nature that would be required to be disclosed on a
balance sheet of the Company or the footnotes thereto prepared in conformity
with GAAP, other than (x) liabilities incurred in the ordinary course of
business or (y) liabilities that, in the aggregate, would not reasonably be
expected to have a material adverse effect on the Company and (ii) there have
not been any changes, circumstances or events which, in the aggregate, have had,
or would reasonably be expected to have, a material adverse effect on the
Company.
3.7 NO ADDITIONAL FILINGS. To the extent that after the issuance and
delivery of the Securities, Purchasers' control less than 25% of the Company's
issued and outstanding Common Stock, the issuance and delivery of the
Securities, will not, by itself, require Purchasers to make any additional
filings with or deliver any notice to, or to obtain any consent of, any
governmental authority that has issued any mortgage or other regulatory license
to the Company or that otherwise regulates the Company's online business. To the
extent that Purchasers' are required to make any additional filings with or
deliver any notice to, or to obtain any consent of, any governmental authority
that has issued any mortgage or other regulatory license to the Company as a
result of the issuance and delivery of the Securities, regardless of the
percentage of the Company's issued and outstanding Common Stock held by
Purchasers', the parties shall cooperate to satisfy any such requirement and the
Company will indemnify the Purchasers for any expenses, including any fees,
penalties and reasonable attorneys' fees incurred by Purchasers in connection
with satisfying such requirements.
3.8 ACCESS TO INFORMATION. The Company hereby acknowledges that any
information regarding the Company that was provided to the Purchasers in
connection with this Agreement and the transactions contemplated hereby was, at
such time, available to the public. The Company further acknowledges that under
this Agreement the Purchasers shall not be entitled to receive any information
that is not made generally available to holders of the publicly traded
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common stock of the Company.
3.9 ADDITIONAL COVENANTS. In addition to the foregoing, the Company
will be deemed to make to the Purchasers any representations or warranties made
to any person who purchases securities in any Subsequent Event (as defined in
the Equity Rights.) Upon the request of the Purchaser, the Company shall, upon
the closing of any such Subsequent Event, deliver to the Purchaser an Officer's
Certificate to such effect.
SECTION 4
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASERS
The Purchasers hereby represent, warrant and covenant to the Company
with respect to the receipt of the Equity Rights, as follows:
4.1 ACCREDITED INVESTOR; EXPERIENCE; RISK. The Purchasers are
accredited investors within the definition of Regulation D of the Securities
Act. The Purchasers and their representatives have been solely responsible for
the Purchasers' own "due diligence" investigations of the Company and its
management and business, for their own analysis of the merits and risks of the
investment, and for their own analysis of the fairness and desirability of the
terms of the investment. The Purchasers have such knowledge and experience in
financial and business matters that such Purchasers are capable of evaluating
the merits and risks associated with the receipt of the Warrant pursuant to the
Agreement and of protecting the Purchasers' interests in connection therewith.
The Purchasers are able to fend for itself in the transactions contemplated by
this Agreement and have the ability to bear the economic risk of the investment,
including complete loss of the investment. The Purchasers are experienced in
evaluating and investing in relatively early-stage, high-technology companies
such as the Company.
4.2 INVESTMENT. The Purchasers are acquiring the Securities for
investment for their own accounts, not as a nominees or agents, and not with a
view to, or for resale in connection with, any distribution thereof, and the
Purchasers have no present intention of selling, granting any participation in,
or otherwise distributing the same in violation of applicable law. The
Purchasers understand that the Securities, have not been and will not have been
registered under the Securities Act by reason of a specific exemption from the
registration provisions of the Securities Act which depends upon, among other
things, the bona fide nature of the investment intent and the accuracy of each
Purchaser's representations as expressed herein.
4.3 RESTRICTED SECURITIES; RULE 144. The Purchasers understand that the
Securities are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations the Securities may be resold without registration under
the Securities Act only in certain limited circumstances. The Purchasers
acknowledge that the Securities must be held indefinitely unless subsequently
registered under the Securities Act or an exemption from such registration is
available. The Purchasers are aware of the provisions of
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Rule 144 promulgated under the Securities Act, which permit limited resale of
shares purchased in a private placement subject to the satisfaction of certain
conditions, including, among other things, the existence of a public market for
the shares, the availability of certain current public information about the
Company, the resale occurring not less than one (1) year after a party has
purchased and paid for the security to be sold, the sale being effected through
a "broker's transaction" or in transactions directly with a "market maker" (as
provided by Rule 144(f)) and the number of shares being sold during any three
(3) month period not exceeding specified limitations.
4.4 AUTHORIZATION. The Purchasers represent that they have the full
right, power and authority to enter into and perform the Purchasers' obligations
under this Agreement, and this Agreement when executed and delivered by the
Purchasers will constitute a valid and binding obligation of the Purchasers,
enforceable in accordance with its terms, subject to the laws of general
application relating to bankruptcy, insolvency and the relief of debtors, rules
of law governing specific performance, injunctive relief or other equitable
remedies.
4.5 FURTHER LIMITATIONS ON DISPOSITION. Without in any way limiting the
representations set forth above, the Purchasers further agrees not to make any
disposition of all or any portion of the Securities unless and until either:
(a) There is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with such registration statement and the provisions of Section 5.3
hereof; or
(b) The relevant Purchaser shall have notified the Company of
the proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition. If, in the
good faith determination of the General Counsel (and/or outside counsel) of the
Company, there is a reasonable basis for the belief that such disposition would
require registration under the Securities Act, the Company may require that such
Purchaser furnish the Company with an opinion of counsel, reasonably
satisfactory to the Company, that such disposition will not require registration
under the Securities Act.
4.6 LEGENDS. It is understood that each certificate representing the
Securities shall bear a legend in the following form or substantially similar
form (in addition to any legend required under applicable state securities
laws):
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), OR ANY
APPLICABLE STATE SECURITIES LAW AND HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN
CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO
SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT (A)
AN EFFECTIVE REGISTRATION
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STATEMENT RELATED THERETO OR (B) AN EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND ANY APPLICABLE STATE SECURITIES LAWS."
SECTION 5
REGISTRATION RIGHTS
5.1. PIGGYBACK REGISTRATION RIGHTS. If the Company at any time or times
prior to the expiration of the applicable holding period under Rule 144(k) under
the Securities Act determines to prepare and file a ("REGISTRATION STATEMENT")
under the Securities Act (except for a registration statement in connection with
the acquisition of any entity or business or any employee benefit plan,
including any stock option plan, or on Form S-4 or Form S-8 under the Securities
Act or any successor forms thereto) in connection with the proposed offer or
sale of Common Stock, the Company shall give prompt written notice to the
Purchasers of its intention and, subject to Sections 5.2 and 5.3, shall permit
the Purchasers to include in such Registration Statement the Shares, any Common
Stock issuable upon the exercise of the Warrants and any other Common Stock that
constitutes Securities (the "REGISTRABLE SECURITIES"), by providing the
Purchasers with at least ten (10) business days prior written notice of the
Company's intention. At the written request of the Purchasers, given within ten
(10) business days after receipt of the aforementioned notice from the Company,
the Company will use its reasonable best efforts to cause all of the Registrable
Securities for which registration has been requested to be included in such
Registration Statement. The Purchasers shall be entitled to the benefits of
Sections 1.6 and 1.7 of the Registration Rights Agreement dated as of September
20, 1999 among the Company and certain stockholders of the Company, including
the Purchasers.
5.2 UNDERWRITING. Notwithstanding Section 5.1 hereof, if the offering
that is the subject of such Registration Statement is underwritten, in whole or
in part, and the managing underwriter advises the Company that the inclusion of
Registrable Securities proposed to be included in such Registration Statement
would interfere with the successful marketing (including pricing) of the Common
Stock proposed to be registered by the Company, then the number of Registrable
Securities to be included in the underwritten offering may be reduced or
excluded altogether on the same basis as other holders of piggyback or other
similar registration rights with respect to Common Stock, as determined by the
Company in its sole discretion.
5.3 DELAY PERIOD. Notwithstanding Section 5.1, the Company shall have
the right to suspend the filing, effectiveness or use of any Registration
Statement for a reasonable length of time not to exceed sixty (60) calendar days
(a "DELAY PERIOD") and from time to time if the Company shall determine that
such use (i) would require disclosure by the Company that would materially
interfere with a material financing, merger, sale or acquisition of assets,
recapitalization or other similar corporate action of the Company that is
pending or expected by the Company to occur or be announced during the Delay
Period or (ii) would require pre-mature disclosure of non-public information the
disclosure of which, in the determination of the Company, would be materially
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adverse to the Company or with respect to which the Company has a bona fide
business purpose for keeping such information confidential; provided, that the
aggregate number of days in all Delay Periods occurring in any period of twelve
(12) consecutive months shall not exceed ninety (90). The Company shall provide
written notice (to the extent practicable) no fewer than two (2) business days
prior to commencement of a Delay Period and promptly upon the end of any Delay
Period to each holder of Common Stock covered by the Registration Statement and
such holders shall cease all disposition efforts with respect to such shares
immediately upon the beginning of any Delay Period until notified of the end of
such Delay Period.
SECTION 6
MISCELLANEOUS
6.1 GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of the State of New York.
6.2 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇. The Company shall make such filings, take such
other reasonable actions, and otherwise reasonably cooperate with the Purchasers
in order to cause any waiting period under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvement Act of 1976, as amended, to expire or otherwise be terminated as
promptly as practicable.
6.3 SURVIVAL. The representations, warranties, covenants and agreements
made in Sections 3 and 4 hereof shall not survive the Closing, except (i) for
(x) the representations, warranties and covenants of the Company set forth in
Sections 3.3 and 3.7 and (y) the covenants of the Purchasers in Section 4.5,
which shall survive for a period of two years from the Closing Date and (ii) for
the covenant of the Company set forth in Section 3.9 which shall survive from
the Closing Date until the expiration of the Exercise Period (as defined in the
Equity Rights) and (iii) any representation or warranty made in connection with
any Subsequent Event (whether such representation or warranty is set forth
herein or is made by the Company pursuant to Section 3.9) that survives the
closing of such Subsequent Event shall also be deemed to survive the Closing for
the benefit of the Purchasers.
6.4 SUBSEQUENT DELIVERIES. At the closing of a Subsequent Financing (as
defined in the Equity Rights) in which the Purchasers elect to exercise their
Equity Rights, the Purchasers shall be entitled to rely on any certificates of
officers of the Company and legal opinion issued by counsel to the Company
pursuant to such transaction, if any, to the same extent as the purchasers
participating in such transaction.
6.5 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
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6.6 ENTIRE AGREEMENT; AMENDMENT. This Agreement and the other documents
delivered pursuant hereto constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof and
supersede and preempt any prior understandings, agreements or representations by
or among the parties, written or oral, which may have related to the subject
matter hereof in any way, including, without limitation, any summary of terms or
similar agreement. Neither this Agreement nor any term hereof may be amended,
waived, discharged or terminated other than by a written instrument signed by
the Company and the Purchasers.
6.7 NOTICES, ETC. Any notice required or permitted pursuant to this
Agreement shall be in writing and shall be deemed sufficient (i) immediately
when delivered personally or by facsimile, (ii) twenty (20) hours after being
deposited with an overnight courier service (e.g. Federal Express) for next day
delivery, or (iii) forty-eight (48) hours after being deposited in the U.S.
mail, as certified or registered mail, with postage prepaid, addressed as
follows:
If to the Purchasers:
Capital Z Partners
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:
with a copy to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: R. ▇▇▇ ▇▇▇▇▇, Esq.
If to the Company:
LendingTree
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: CEO
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
Four Times Square
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.
6.8 DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to the Purchasers, upon any breach or default of the
Company under this Agreement, shall impair any such right, power or remedy of
the Purchasers nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of the Purchasers of any breach or default under this Agreement, or any
waiver on the part of any holder of any provisions or conditions of this
Agreement, must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement or by law or otherwise afforded to the Purchasers, shall be cumulative
and not alternative.
6.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
6.10 SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided, however, that no such severability shall be
effective if it materially changes the economic benefit of this Agreement to any
party.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the ______ day of September, 2000.
"COMPANY" LENDINGTREE, INC.,
By: __________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer
"PURCHASERS" CAPITAL Z FINANCIAL SERVICES
FUND II, L.P
By: Capital Z Partners, L.P., its
sole partner
By: Capital Z Partners, Ltd., its
sole general partner
By: __________________________
Name: ________________________
Title: _______________________
CAPITAL Z FINANCIAL SERVICES
PRIVATE FUND II, L.P.
By: Capital Z Partners, L.P., its
sole partner
By: Capital Z Partners, Ltd., its
sole general partner
By: _________________________
Name: ________________________
Title: _______________________
15
Schedule I
Column A* Column B**
--------- ----------
CAPITAL Z FINANCIAL SERVICES FUND II, L.P 1,247,292 223,811
CAPITAL Z FINANCIAL SERVICES PRIVATE FUND II, L.P. 6,626 1,189
* The numbers set forth in Column A are the numbers of Shares of Common Stock
issuable to the respective parties upon exercise of the Equity Rights.
** The numbers set forth in Column B are the numbers of shares of Common Stock
issuable upon exercise of the Warrants for which the Equity Rights granted to
such party are initially exercisable.