1
Exhibit 10.13
COMMON STOCK WARRANT AGREEMENT
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NO
SALE, TRANSFER OR OTHER DISPOSITION OF THIS WARRANT OR SAID SHARES MAY BE
EFFECTED WITHOUT (i) AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO, (ii)
AN OPINION OF COUNSEL FOR THE HOLDER THAT SUCH REGISTRATION IS NOT REQUIRED OR
(iii) RECEIPT OF A NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION
TO THE EFFECT THAT REGISTRATION UNDER THE ACT IS NOT REQUIRED.
WHEREAS, the Company (as defined herein) Previously issued to ULLICO
(as defined herein) a Series A warrant agreement dated December 9, 1998, for the
purchase of 260,000 shares of the Company's Series A Convertible Preferred Stock
and a Series B Warrant Agreement dated March 4, 1999, for the purchase of 40,000
shares of the Company's Series B Convertible Preferred Stock (collectively, the
"Prior Warrants"); and
WHEREAS, in connection with the sale and issuance by the Company of up
to $50,000,000 in Series D Convertible Preferred Stock, the Company and ULLICO
have agreed to cancel the Prior Warrants and issue this Warrant in replacement
thereof.
NOW, THEREFORE, in consideration of the premises, promises and
covenants set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows.
LENDINGTREE, INC.
WARRANT TO PURCHASE
SHARES OF COMMON STOCK
Number of Shares Issuable Upon Exercise: 300,000 September 20, 1999
No. CSW-13
2
THIS CERTIFIES THAT, for value received, The Union Labor Life Insurance
Company, Acting on Behalf of its Separate Account P ("ULLICO") (ULLICO and any
transferee of ULLICO a "Warrantholder") is entitled to subscribe for and
purchase 300,000 shares, as adjusted pursuant to the provisions hereof (the
"Shares") of the Common Stock, $0.01 par value per share, of LendingTree, Inc.,
a Delaware corporation (the "Company"), at a price per share of $6.00 (the
"Exercise Price"), subject to the provisions and upon the terms and conditions
hereinafter set forth (such right being referred to as the "Warrant").
1. Term.
1.1 Exercisability. This Warrant is immediately exercisable as to all
of the Shares. This Warrant may be exercised in whole or in part, but in no
event may any partial exercise be for fewer than 10,000 Shares.
1.2 Termination and Expiration. If not earlier exercised, the Warrant
shall expire on the sixth anniversary of the date hereof (the "Expiration
Date").
1.3 Exceptions. In the event that an unaffiliated third party acquires
the Company in a bona fide transaction (i.e., not a recapitalization,
reincorporation for the purpose of changing corporate domicile or other similar
transaction), regardless of the form of the transaction (e.g., merger,
consolidation, sale of assets or sale of stock) (the "Acquisition"), then (i) no
less than twenty (20) business days prior to the record date for determining the
stockholders of the Company entitled to vote on (or otherwise approve) the
Acquisition, the Company shall provide the Warrantholder with notice of such
Acquisition, and (ii) the Company shall provide the Warrantholder with all
information with respect to the Acquisition that is otherwise provided to
stockholders of the Company at such time and from time to time during the
pendency of the Acquisition, including (but not limited to) the proposed price
to be paid in the proposed Acquisition.
2. Method of Exercise.
2.1 Method of Exercise: Payment. This Warrant may be exercised by the
holder hereof, at any time, by delivery of the duly executed Notice of Exercise
form attached hereto as Exhibit A to the principal office of the Company and by
the payment to the Company, by cash, wire transfer, check or cancellation of
indebtedness, if any, of an amount equal to the Exercise Price per share
multiplied by the aggregate number of Shares that the Warrantholder is entitled
to purchase hereunder.
2
3
The person or persons in whose name(s) any certificate(s) representing Shares
shall be issuable upon exercise of this Warrant shall be deemed to have become
the holder(s) of record of, and shall be treated for all purposes as the record
holder(s) of, the Shares represented thereby (and such Shares shall be deemed to
have been issued) immediately prior to the close of business on the date or
dates upon which this Warrant is exercised. In the event of any exercise of this
Warrant, certificates for the Shares so purchased shall be delivered to the
holder hereof as soon as possible.
2.2 Right to Exercise Warrant for Stock, Net Issuance.
(a) Notwithstanding any provisions herein to the contrary, in lieu of
exercising this Warrant by paying the Exercise Price in the manner set forth in
Section 2. 1, prior to its expiration pursuant to Section 1.2, the Warrantholder
may, by providing notice thereof to the Company along with the Notice of
Exercise, elect to exercise the Warrants, in whole or in part, for a reduced
number of Shares deter mined in accordance with the following formula:
X = Y(A-B)
------
A
Where:
X = The number of Shares to be issued to the Warrantholder.
Y = The number of Shares as to which this Warrant is being exercised.
A = The fair market value of one Share (at the date of such exercise).
B = Exercise Price (as adjusted to the date of such exercise).
(b) For purposes of this Section 2.2, the "fair market value" per Share
shall be determined in such reasonable manner as may be prescribed in good faith
by the Company's Board of Directors except as follows:
(i) in the event the Warrant is being exercised at the time
the Company is making a public offering of its Common Stock, the fair market
value per Share shall be the per share offering price to the public of the
Company's Common Stock in such public offering;
3
4
(ii) in the event the Warrant is being exercised at the time
the Company's Common Stock is listed on a national securities exchange or
admitted to unlisted trading privileges on any such exchange or listed for
trading on the NASDAQ National Market System, the fair market value per Share
shall be the last reported sale price of Common Stock on such exchange or system
on the last business day prior to the date of exercise of the Warrant (or if no
such sale is made on such day, the average of the closing bid and ask prices for
Common Stock for such day on such exchange or system); and
(iii) in the event the Warrant is being exercised at the time
of the consummation of an Acquisition, the fair market value per Share shall be
the consideration per share of Common Stock the holders thereof are to receive
in connection with such Acquisition.
3. Stock Fully Paid; Reservation of Shares. All Shares that may be
issued upon the exercise of this Warrant shall, upon issuance, be validly
issued, fully paid and nonassessable, and free from all taxes, liens and charges
with respect to the issue thereof. During the period within which this Warrant
may be exercised, the Company will at all times have duly authorized and
reserved, for the purpose of issuance upon exercise of this Warrant, a
sufficient number of Shares.
4. Adjustments to Conversion Price and Number of Shares. The number and
kind of securities purchasable upon the exercise of this Warrant and the
Exercise Price shall be subject to adjustment from time to time as set forth in
Appendix I hereto upon the occurrence of certain events described therein. The
provisions of Appendix I are incorporated by reference herein with the same
effect as if set forth in full herein.
5. Fractional Shares. No fractional Shares will be issued in connection
with any exercise hereunder, but in lieu of such fractional Shares the Company
shall make a cash payment therefor based upon the per share fair market value
(determined in accordance with Section 2.2(b)) of the Shares on the date of
exercise.
6. Compliance with Securities Act; Disposition of Warrant or Shares of
Common Stock.
6.1 Compliance with Securities Act. The Warrantholder, by acceptance
hereof, agrees that this Warrant, the Shares to be issued upon exercise hereof
are being acquired for investment and that the Warrantholder will not offer,
sell or
4
5
otherwise dispose of this Warrant or any Shares to be issued upon exercise
hereof except under circumstances which will not result in a violation of the
Securities Act. All Shares issued upon exercise of this Warrant (unless
registered under the Securities Act) shall be stamped or imprinted with a
legend in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. NO SALE OR DISPOSITION MAY BE EFFECTED WITHOUT (i) AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO, (ii) AN OPINION OF
COUNSEL FOR THE HOLDER THAT SUCH REGISTRATION IS NOT REQUIRED OR (iii)
RECEIPT OF A NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE
COMMISSION TO THE EFFECT THAT REGISTRATION UNDER THE ACT IS NOT
REQUIRED.
6.2 Disposition of Warrant and Shares. With respect to any offer, sale
or other disposition of any Shares acquired pursuant to the exercise of this
Warrant, the Warrantholder agrees to give written notice to the Company prior
thereto, describing briefly the manner thereof, together with a written opinion
of such Warrantholder's counsel, if reasonably requested by the Company, to the
effect that such offer, sale or other disposition may be effected without
registration or qualification (under the Securities Act as then in effect or any
federal or state law then in effect) of such Shares and indicating whether under
the Securities Act certificates for such Shares to be sold or otherwise disposed
of require any restrictive legend as to applicable restrictions on
transferability to insure compliance with the Securities Act. Each certificate
representing the Shares thus transferred (except a transfer pursuant to Rule
144) shall bear a legend as to the applicable restrictions on transferability in
order to insure compliance with the Securities Act unless, in the aforesaid
opinion of counsel for the Warrantholder, such legend is not required in order
to insure compliance with the Securities Act. The foregoing legends shall be
removed from the certificates representing any Shares, at the request of the
holder thereof, at such time as:
(i) they are to be sold pursuant to Rule 144 promulgated under
the Securities Act or
(ii) they become eligible for resale pursuant to Rule 144(k)
promulgated under the Securities Act
5
6
and the Company has been furnished with an opinion of counsel reasonably
satisfactory to the Company that such legends may be removed in connection with
such sales or eligibility for resale. Notwithstanding anything to the contrary
contained elsewhere in this Warrant Agreement, this Warrant may not be
transferred by the Warrantholder, whether to a partnership affiliated with the
initial Warrantholder or to any partner of such partnership, without compliance
by the Warrantholder with applicable federal and state securities laws. The
Company may issue stop transfer instructions to its transfer agent in connection
with the foregoing restrictions.
7. Rights as Stockholders. Except as set forth herein, the
Warrantholder shall not be entitled to vote upon any matter submitted to
shareholders at any meeting thereof, or to receive notice of meetings, or be
deemed the holder of Common Stock until this Warrant shall have been exercised
and the Shares purchasable upon such exercise shall have become deliverable, as
provided herein.
8. Modification and Waiver. This Warrant and any provision hereof may
be amended, changed, waived, discharged or terminated only by an instrument in
writing signed by the Company and Warrantholder.
9. Notices. Any notice, request or other document required or permitted
to be given or delivered to the Warrantholder or the Company shall be delivered
or sent to the Warrantholder at its address as shown on the books of the Company
or to the Company at the address indicated on the signature page of this Warrant
and shall be deemed received by the holder upon the earlier of actual receipt
or, if sent by certified mail (postage pre-paid), five (5) days after deposit in
the U.S. mail.
10. Binding Effect on Successors. This Warrant shall be binding upon
any corporation or other entity succeeding the Company and the Warrantholder by
merger, consolidation or acquisition of all or substantially all of the
Company's assets or stock. All of the obligations of the Company relating to the
Shares shall survive the exercise and termination of this Warrant. All of the
covenants and agreements of the Company shall inure to the benefit of the
successors and assigns of the holder hereof.
11. Lost Warrant or Stock Certificates. The Company covenants to the
Warrantholder and any holder of shares of Common Stock received pursuant to the
exercise of this Warrant that upon receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction, or mutilation of this Warrant or
any stock certificate issued upon exercise thereof and, in the case of any such
loss, theft or
6
7
destruction, upon receipt of an indemnity reasonably satisfactory to the
Company, or in the case of any such mutilation upon surrender and cancellation
of such Warrant or stock certificate, the Company shall make and deliver a new
Warrant or stock certificate, of like tenor, in lieu of the lost, stolen,
destroyed or mutilated Warrant or stock certificate.
12. Descriptive Headings. The descriptive headings of the several
paragraphs of this Warrant are inserted for convenience only and do not
constitute a part of this Warrant.
13. Recovery of Litigation Costs. If any legal action or other
proceeding is brought for the enforcement of this Warrant, or because of an
alleged dispute, breach, default or misrepresentation in connection with any of
the provisions of this Warrant, the successful or prevailing party or parties
shall be entitled to recover reasonable attorneys' fees and other costs incurred
in that action or proceeding, in addition to any other relief to which it or
they may be entitled.
14. Governing Law. THIS WARRANT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF
THE STATE OF DELAWARE IRRESPECTIVE OF ANY CONFLICT OF LAWS PROVISION.
15. Supersedes Prior Warrants. The terms and conditions set forth in
this Warrant supersede and replace in their entirety the terms and conditions
set forth in the Prior Warrants, and upon execution hereof, the Prior Warrants
shall be of no further force or effect.
[THIS SPACE IS INTENTIONALLY LEFT BLANK]
7
8
IN WITNESS WHEREOF, the parties hereto have executed Common Stock
Warrant Agreement as of September __, 1999.
LENDING TREE, INC.
By:
-----------------------------------------------
Douglas R. Lebda, Chief Executive Officer
Lending Tree, Inc.
6701 Carmel Road
Suite 205
Charlotte, North Carolina 28226
AGREED AND ACCEPTED this day of September, 1999.
--------
THE UNION LABOR LIFE INSURANCE COMPANY,
ACTING ON BEHALF OF ITS SEPARATE ACCOUNT P
By:
-----------------------------------------------
Michael R. Steed, Senior Vice President
The Union Labor Life Insurance Company
8
9
IN WITNESS WHEREOF, the parties hereto have executed Common Stock
Warrant Agreement as of September 20, 1999.
LENDINGTREE, INC.
By:
-----------------------------------------------
Douglas R. Lebda, Chief Executive Officer
LendingTree, Inc.
6701 Carmel Road
Suits 205
Charlotte, North Carolina 28226
AGREED AND ACCEPTED this ____ day of September, 1999:
THE UNION LABOR LIFE INSURANCE COMPANY
ACTING ON BEHALF OF ITS SEPARATE ACCOUNT P
By:
-----------------------------------------------
Michael R. Steed, Senior Vice President
The Union Labor Life Insurance Company
9
10
EXHIBIT A
TO COMMON STOCK WARRANT AGREEMENT
NOTICE OF EXERCISE
To: LendingTree, Inc.
1. The undersigned hereby elects to purchase shares of Common Stock of
the Company (as defined in the attached Warrant) pursuant to the terms of the
attached Warrant, and tenders herewith payment of the purchase price of such
shares in full.
2. The undersigned wishes to utilize cashless exercise in payment of
the exercise price of the aforesaid shares and hereby authorizes the Company to
adjust the number of shares for which this Warrant may be exercised to properly
reflect such cashless exercise.
[ ] Yes, for _______ shares [ ] No
3. Please issue a certificate or certificates representing said shares
in the name of the undersigned or in such other name or names as are specified
below:
[ ]
4. The undersigned represents that the aforesaid shares are being
acquired for the account of the undersigned for investment and not with a view
to, or for resale in connection with, the distribution thereof and that the
undersigned has no present intention of distributing or reselling such shares,
except in accordance with the terms of the legend(s), if any, appearing on the
certificate or certificates representing said shares.
- ----------------------------------
(Date)
[ ]
10
11
APPENDIX I
TO COMMON STOCK WARRANT AGREEMENT
1. Capitalized Terms. Capitalized terms used in this Appendix I that
are not otherwise defined herein shall have the respective meanings assigned to
them in the Warrant Agreement, to which this Appendix I is attached, if therein
defined.
2. Reclassification or Merger. In the event of any reclassification,
change or conversion of securities of the class issuable upon exercise of this
Warrant (other than a change in par value, or from par value to no par value, or
from no par value to par value, or as a result of a subdivision or combination),
the Warrantholder shall have the right upon exercise to receive, in lieu of each
Share theretofore issuable upon exercise of this Warrant, the kind and amount of
shares of stock, other securities, money and property receivable upon such
reclassification, change or conversion by a holder of one Share. The provisions
of this Section 2 shall similarly apply to successive reclassifications and
changes.
3. Subdivision or Combination of Shares. If the Company at any time
while this Warrant remains outstanding and unexpired shall subdivide or combine
its Common Stock, the Exercise Price and the number of Shares issuable upon
exercise hereof shall be proportionately adjusted.
4. Stock Dividends. If the Company at any time while this Warrant is
outstanding and unexpired shall pay a dividend on its Common Stock payable in
shares of Common Stock, then the Exercise Price shall be adjusted, from and
after the date of determination of shareholders entitled to receive such
dividend or distribution, to that price determined by multiplying the Exercise
Price in effect immediately prior to such date of determination by a fraction
(a) the numerator of which shall be the total number of shares of Common Stock
outstanding immediately prior to such dividend or distribution, and (b) the
denominator of which shall be the total number of shares of Common Stock
outstanding immediately after such dividend or distribution and the number of
Shares subject to this Warrant shall be proportionately adjusted.
5. Other Distributions. Other than ordinary cash dividends or
distributions paid out of the Company's current earnings, which are specifically
excluded from the provisions of this Section 5, in the event the Company shall
declare a dividend or distribution on its Common Stock payable in cash,
securities of the
11
12
Company, securities of other persons, evidences of indebtedness issued by the
Company or other persons, assets or Warrants or rights not referred to in
Sections 3 or 4 of this Appendix I, then, in each such case, provision shall be
made by the Company such that the holder of this Warrant shall receive upon
exercise of this Warrant a proportionate share of any such dividend or
distribution as though it were the holder of the Shares as of the record date
fixed for the determination of the shareholders of the Company entitled to
receive such dividend or distribution.
12