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Exhibit 10.9
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE BEEN TAKEN FOR INVESTMENT,
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT.
No. CSW-2 Right to Purchase Shares of Common
Stock of LendingTree, Inc.
December 9, 1998 ("Issue Date")
LENDINGTREE, INC.
Common Stock Warrant
LendingTree, Inc., a Delaware corporation, hereby certifies that, for
value received The Seacris Group, Ltd. ("Holder"), is entitled, subject to the
terms set forth below, to purchase from the Company at any time or from time to
time before 5:00 P.M., Eastern Time, six years from the Issue Date, or such
earlier time as may be specified in Section 17 hereof, 50,000 shares of fully
paid and nonassessable shares of Common Stock (as defined below).
As used herein, the terms set forth below, unless the context otherwise
requires, have the following respective meanings:
(a) "Company" shall mean and include LendingTree, Inc.
and any corporation that may succeed of assume the
obligations of the Company hereunder.
(b) "Common Stock" shall mean the Company's common stock,
$.0l par value per share.
(c) "Purchase Price" shall mean $6.00 per share.
(d) "Warrant" shall mean this Warrant and any and all
additional Warrants to be issued by the Company to
The Seacris Group, Ltd. Capital Corporation or its
assigns, as approved by the Company pursuant to the
terms and conditions set forth in Section 13 hereof.
(e) "Warrant Shares" shall mean the shares of Common
Stock that are to be issued to the holder of this
Warrant upon such holder's exercise of this Warrant.
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1. Exercise of Warrant.
1.1. Full Exercise. This Warrant may be exercised in full by
the holder hereof by surrender of this Warrant, with the form of subscription
attached hereto, duly executed by such holder, to the Company at its principal
office, accompanied by payment, in cash or by certified or official bank check
payable to the order of the Company, in the amount obtained by multiplying the
number of shares of Common Stock for which this Warrant is exercisable by the
Purchase Price.
1.2. Partial Exercise. This Warrant may be exercised in part
by surrender of the Warrant in the manner and at the place provided in
subsection 1.1 except that the amount payable by the holder on such partial
exercise shall be the amount obtained by multiplying (a) the number of shares of
Common Stock designated by the holder in the subscription attached hereto hereof
by (b) the Purchase Price. On any such partial exercise the Company, at its
expense, will forthwith issue and deliver to or upon the order of the holder
hereof a new Warrant or Warrants of like tenor, in the name of the holder hereof
or as such holder (upon payment by such holder of any applicable transfer taxes)
may request, calling in the aggregate on the face or faces thereof for the
number of shares of Common Stock for which such Warrant or Warrants may still be
exercised.
1.3. Right to Exercise Warrant for Common Stock; Net Issuance.
(a) Notwithstanding any provisions herein to the
contrary, in lieu of exercising this Warrant for cash in the manner set forth in
Sections 1.1 and 1.2, the Warrant holder may elect to exercise the Warrant
("Warrant Right") for shares of Common Stock, the aggregate value of which
shares shall be equal to the Purchase Price multiplied by 50,000 (as each value
may be adjusted from time to time as described elsewhere herein). The Warrant
Right may be exercised by delivery to the principal office of the Company
together with notice of the Warrant holder's intention to exercise the Warrant
Right, in which event the Company shall issue to the holder a number of shares
of the Common Stock computed using the following formula:
X = Y(A-B)
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A
X = The number of shares of Common Stock to be issued to holder.
Y = The number of shares of Common Stock purchasable under this
Warrant.
A = The fair market value of one share of Common Stock (at the date of
such calculation).
B = Purchase Price (as adjusted to the date of such calculation).
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(b) For purposes of this Section 1.3, "fair market
value" per share of the Company's Common Stock shall be determined by the
Company's Board of Directors in good faith; provided, however, that in the event
the Company makes an initial public offering of its Common Stock, the fair
market value per share shall be the closing price per share to the public on the
exchange upon which the Company's Common Stock is listed, as reported in The
Wall Street Journal, on the business day immediately preceding the day upon
which the Holder exercises the Warrant.
1.4. Registration Rights.
Company acknowledges and agrees that all shares of
Common Stock purchased or acquired in connection with the exercise of this
Warrant or issued in respect of such shares of Common Stock, will be deemed to
be "Registrable Shares" as such term is defined in that certain Second Amended
and Restated Registration Rights Agreement of even date herewith, 1998, by and
among Holder, the Company and those certain other parties identified therein.
1.5. Company Acknowledgment. The Company will, at the time of
the exercise of the Warrant, upon the request of the holder hereof, acknowledge
in writing its continuing obligation to afford to such holder any rights to
which such holder shall continue to be entitled after such exercise in
accordance with the provisions of this Warrant. If the holder shall fail to make
any such request, such failure shall not affect the continuing obligation of the
Company to afford to such holder any such rights.
2. Delivery of Stock Certificates on Exercise. As soon as practicable
after the exercise of this Warrant in full or in part, and in any event within
15 days thereafter, the Company, at its expense (including the payment by it of
any applicable issue taxes), will cause to be issued in the name of and
delivered to the holder hereof, or as such holder (upon payment by such holder
of any applicable transfer taxes) may direct, a certificate or certificates for
the number of fully paid and nonassessable shares of Common Stock to which such
holder shall be entitled on such exercise, plus, in lieu of any fractional share
to which such holder would otherwise be entitled, cash equal to such fraction
multiplied by the Purchase Price of one full share, together with any other
stock or other securities and property (including cash, where applicable) to
which such holder is entitled upon such exercise pursuant to Section 1 or other
wise.
3. Adjustment for Dividends in Other Stock, Property, Reclassification.
In case at any time or from time to time, the holders of Common Stock shall have
received, or (on or after the record date fixed for the determination of
shareholders eligible to receive) shall have become entitled to receive, without
payment therefor,
(a) other or additional stock or other securities or
property (other than cash) by way of dividend,
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(b) any cash (excluding cash dividends payable solely out
of earnings or earned surplus of the Company), or
(c) other or additional stock or other securities or
property (including cash) by way of spin-off,
split-up, reclassification, recapitalization,
combination of shares or similar corporate
rearrangement,
other than additional shares of Common Stock issued as a stock dividend or in a
stock-split (adjustments in respect of which are provided in Section 5), then
and in each such case the holder of this Warrant, on the exercise hereof as
provided in Section 1, shall be entitled to receive the amount of stock and
other securities and property (including cash in the cases referred to in
subdivisions (b) and (c) of this Section 3) that such holder would hold on the
date of such exercise if on the date hereof he had been the holder of record of
the number of shares of Common Stock called for on the face of this Warrant and
had thereafter, during the period from the date hereof to and including the date
of such exercise, retained such shares and all such other or additional stock
and other securities and property (including cash in the cases referred to in
subdivisions (b) and (c) of this section 3) receivable by him as aforesaid
during such period, giving effect to all adjustments called for during such
period by Sections 4 and 5.
4. Adjustment for Reorganization, Consolidation, Merger.
4.1. General. In case at any time or from time to time, the
Company shall (a) effect a reorganization, (b) consolidate with or merge into
any other person, or (c) transfer all or substantially all of its properties or
assets to any other person under any plan or arrangement contemplating the
dissolution of the Company, then, in each such case, except as otherwise
provided in Section 4.3 hereof, the holder of this Warrant, on the exercise
hereof as provided in Section 1 at any time after the consummation of such
reorganization, consolidation or merger or the effective date of such
dissolution, as the case may be, shall receive, in lieu of the Common Stock
issuable on such exercise prior to such consummation or such effective date, the
stock and other securities and property (including cash) to which such holder
would have been entitled upon such consummation or in connection with such
dissolution, as the case may be, if such holder had so exercised this Warrant,
immediately prior thereto, all subject to further adjustment thereafter as
provided in Sections 3 and 5.
4.2. Dissolution. Except as otherwise provided in Section 4.3
hereof, in the event of any dissolution of the Company following the transfer of
all or substantially all of its properties or assets, the Company, prior to such
dissolution, shall at its expense deliver or cause to be delivered the stock and
other securities and property (including cash, where applicable) receivable by
the holder of the Warrant after the effective date of such dissolution pursuant
to this Section 4 to a bank or trust company, as trustee for the holder of the
Warrant.
4.3. Continuation of Terms. Except as otherwise hereinafter
provided, upon any reorganization, consolidation, merger or transfer (and any
dissolution following any transfer)
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referred to in this Section 4, this Warrant shall continue in full force and
effect and the terms hereof shall be applicable to the shares of stock and other
securities and property receivable on the exercise of this Warrant after the
consummation of such reorganization, consolidation or merger or the effective
date of dissolution following any such transfer, as the case may be, and shall
be binding upon the issuer of any such stock or other securities, including, in
the case of any such transfer, the person acquiring all or substantially all of
the properties or assets of the Company, regardless of whether such person shall
have expressly assumed the terms of this Warrant, provided, however, that if the
holder of Warrants exercisable into at least that number of shares of Common
Stock that represents a majority in interest of the Common Stock issuable upon
exercise of all the Warrants then issued and outstanding, agree in writing to
waive the terms of this Section 4, on and as of the date of the consummation of
such reorganization, consolidation or merger effective date of dissolution, as
the case may be, the rights of the holder of this Warrant and the obligations of
the Company under this Section 4 shall terminate and the provisions of this
Section 4 shall be of no further force and effect.
5. Adjustment for Extraordinary Events. In the event that the Company
shall (i) issue additional shares of the Common Stock as a dividend or other
distribution on outstanding Common Stock, (ii) subdivide its outstanding shares
of Common Stock, or (iii) combine its outstanding shares of the Common Stock
into a smaller number of shares of the Common Stock, then, in each such event,
the Purchase Price shall, simultaneously with the happening of such event, be
adjusted by multiplying the then Purchase Price by a fraction, the numerator of
which shall be the number of shares of Common Stock outstanding immediately
prior to such event and the denominator of which shall be the number of shares
of Common Stock outstanding immediately after such event, and the product so
obtained shall thereafter be the Purchase Price then in effect.
The Purchase Price, as so adjusted, shall be readjusted in the same
manner upon the happening of any successive event or events described herein in
this Section 5. The holder of this Warrant shall thereafter, on the exercise
hereof as provided in Section 1, be entitled to receive that number of shares of
Common Stock determined by multiplying the number of shares of Common Stock
which would otherwise (but for the provisions of this Section 5) be issuable on
such exercise by a fraction of which (i) the numerator is the Purchase Price
which would otherwise (but for the provisions of this Section 5) be in effect,
and (ii) the denominator is the Purchase Price in effect on the date of such
exercise.
6. Certificate as to Adjustments. In each case of any adjustment or
readjustment in the shares of Common Stock issuable on the exercise of the
Warrants, the Company at its expense will promptly cause its treasurer or chief
financial officer to compute such adjustment or readjustment in accordance with
the terms of the Warrants and prepare a certificate setting forth such
adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based, including a statement of (a) the
consideration received or receivable by the Company for any additional shares of
Common Stock issued of sold or deemed to have been issued or sold, (b) the
number of shares of Common Stock outstanding or deemed to be outstand-
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ing, and (c) the Purchase Price and the number of shares of Common Stock to be
received upon exercise of this Warrant, in effect immediately prior to such
issue or sale and as adjusted and readjusted as provided in this Warrant. The
Company will forthwith mail a copy of each such certificate to each holder of a
Warrant, and will, on the written request at any time of any holder of a
Warrant, furnish to such holder a like certificate setting forth the Purchase
Price at the time in effect and showing how it was calculated.
7. Notices of Record Date, etc. In the event of
(a) any taking by the Company of a record of the holders
of any class or securities for the purpose of
determining the holders thereof who are entitled to
receive any dividend or other distribution, or any
right to subscribe for, purchase or otherwise acquire
any shares of stock of any class or any other
securities or property, or to receive any other
right, or
(b) any capital reorganization of the Company, any
reclassification or recapitalization of the capital
stock of the Company or any transfer of all or
substantially all the assets of the Company to or
consolidation or merger of the Company with or into
any other person, or any voluntary or involuntary
dissolution, liquidation or winding-up of the
Company,
then and in each such event the Company will mail or cause to be mailed to each
holder of a Warrant a notice specifying (i) the date on which any such record is
to be taken for the purpose of such dividend, distribution or right, and stating
the amount and character of such dividend, distribution or right, (ii) the date
on which any such reorganization, reclassification, recapitalization, transfer,
consolidation, merger, dissolution, liquidation or winding-up is to take place,
and the time, if any is to be fixed, as of which the holders of record of Common
Stock (or Other Securities) shall be entitled to exchange their shares of Common
Stock (or Other Securities) for securities or other property deliverable on such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding-up, and (iii) the amount and
character of any stock or other securities, or rights or options with respect
thereto, proposed to be issued or granted, the date of such proposed issue or
grant and the persons or class of persons to whom such proposed issue or grant
is to be offered or made. Such notice shall be mailed at least 20 days prior to
the date specified in such notice on which any such action is to be taken.
8. Amendment. The terms of this Warrant may be amended, modified or
waived only with the written consent of the Company and the holders of Warrants
representing at least a majority of the number of shares of Common Stock then
issuable upon the exercise of the warrants. No such amendment, modification or
waiver shall be effective as to this Warrant unless the terms of such amendment,
modification or waiver shall apply with the same force and effect to all of the
other Warrants then outstanding.
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9. Reservation of Stock Issuable on Exercise of Warrant. The Company
will at all times reserve and keep available, solely for issuance and delivery
on the exercise of the Warrant, all shares of Common Stock from time to time
issuable on the exercise of the Warrant.
10. Exchange of Warrants. On surrender for exchange of any Warrant,
properly endorsed, to the Company, the Company at its expense will issue and
deliver to or on the order of the holder thereof a new Warrant or Warrants of
like tenor, in the name of such holder or as such holder (on payment by such
holder of any applicable transfer taxes) may direct, calling in the aggregate on
the face or faces thereof for the number of shares of Common Stock called for on
the face or faces of the Warrant or Warrants so surrendered.
11. Replacement of Warrants. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of any
Warrant and, in the case of any such loss, theft or destruction of any Warrant,
on delivery of an indemnity agreement or security reasonably satisfactory in
form and amount to the Company or, in the case of any such mutilation, on
surrender and cancellation of such Warrant, the Company at its expense will
execute and deliver, in lieu thereof, a new Warrant of like tenor.
12. Warrant Agent. The Company may, by written notice to each holder of
a Warrant, appoint an agent for the purpose of issuing Common Stock (or Other
Securities) on the exercise of the Warrant pursuant to Section 1, exchanging
Warrants pursuant to Section 10, and replacing Warrants pursuant to Section 11,
or any of the foregoing, and thereafter any such issuance, exchange or
replacement, as the case may be, shall be made at such office by such agent.
13. Negotiability, etc. This Warrant is issued upon the following
terms, to all of which each holder or owner hereof by the taking hereof consents
and agrees:
(a) title to this Warrant may only be transferred or
assigned with the written consent of the Company;
(b) any person in possession of this Warrant properly
endorsed, and for which consent of the Company is
evidenced in writing, is authorized to represent
himself as absolute owner hereof and is empowered to
transfer absolute title hereto by endorsement and
delivery hereof to a bona fide purchaser hereof for
value; each prior taker or owner waives and renounces
all of his equities or rights in this Warrant in
favor of each such bona fide purchaser, and each such
bona fide purchaser shall acquire absolute title
hereto and to all rights represented hereby; and
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(c) until this Warrant is transferred on the books of the
Company, the Company may treat the registered holder
hereof as the absolute owner hereof for all purposes,
notwithstanding any notice to the contrary.
14. Notices, etc. All notices and other communications from the Company
to the holder of this Warrant shall be mailed by first class registered of
certified mail, postage prepaid, at such address as may have been furnished to
the Company in writing by such holder or, until any such holder furnishes to the
Company an address, then to, and at the address of, the last holder of this
Warrant who has so furnished an address to the Company.
15. Government Law. This Warrant shall be governed by, and construed in
accordance with, the laws of the State of Delaware.
16. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. The headings in this Warrant are for purposes of reference only, and
shall not limit or otherwise affect any of the terms hereof. This Warrant is
being executed as an instrument under seal. The invalidity or unenforceability
of any provision hereof shall in no way affect the validity or enforceability of
any other provision.
17. Expiration. The right to exercise this Warrant shall expire at 5:00
P.M., Eastern Time, on the earlier provision of (i) six years from the Issue
Date, or (ii) the effective date of the waiver exercised pursuant to Section 4.3
hereof.
LENDINGTREE, INC.
By:
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Mitchell N. York
President
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FORM OF SUBSCRIPTION
(To be signed only on exercise of Warrant)
To: LendingTree, Inc.
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise this Warrant for, and to purchase thereunder,
shares of Common Stock of LendingTree, Inc. and herewith makes payment of
$ therefor, and requests that the certificates for such shares
be issued in the name of, and delivered to , whose address is:
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Dated:
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(Signature must conform to name of holder as
specified on the face of the Warrant)
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(Address)
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FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and
transfers unto the right represented by the within Warrant to purchase
shares of Common Stock of LendingTree, Inc. to which the within
Warrant relates, and appoints Attorney to transfer such right on
the books of LendingTree, Inc. with full power of substitution in the premises.
The Holder of this Warrant and any purchaser, assignee or transferee of
such Holder acknowledge that no sale, assignment or transfer of this Warrant
will be valid without the express written approval of the Company.
Dated:
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(Signature must conform to name of holder as
specified on the face of the Warrant)
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(Address)
Signed in the presence of:
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Name:
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[Print Name]
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