As filed with the Securities and Exchange Commission on June 30, 2000
Registration No. 333-
- ------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------------
FORM S-8/S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
------------------------------------
LENDINGTREE, INC.
(Exact name of registrant as specified in its charter)
------------------------------------
DELAWARE 25-1795344
(State of incorporation) (I.R.S. employer identification number)
11115 RUSHMORE DR.
CHARLOTTE, NORTH CAROLINA 28277
(Address of principal executive offices, including zip code)
LENDINGTREE, INC. EMPLOYEE STOCK PURCHASE PLAN
1997 STOCK OPTION PLAN OF CREDITSOURCE USA, INC. (FORMERLY KNOWN AS
LEWISBURG VENTURES, INC. AND A PREDECESSOR TO LENDINGTREE, INC.)
1998 STOCK OPTION PLAN OF
LENDINGTREE, INC.
AMENDED AND RESTATED 1999 STOCK INCENTIVE PLAN OF
LENDINGTREE, INC.
(FULL TITLE OF THE PLANS)
DOUGLAS R. LEBDA
CHIEF EXECUTIVE OFFICER
LENDINGTREE, INC.
11115 RUSHMORE DR.
CHARLOTTE, NORTH CAROLINA 28277
(704) 541-5351
(NAME, ADDRESS AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------------------
WITH COPIES TO:
DAVID J. GOLDSCHMIDT, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
FOUR TIME SQUARE
NEW YORK, NEW YORK 10036
(212) 735-3000
------------------------------------
CALCULATION OF REGISTRATION FEE
=================================================================================================================
Proposed
Proposed Maximum
Maximum Aggregate Amount of
Title of Securities Amount to be Offering Price Offering Registration
to be Registered Registered(1) per Share Price Fee
- -----------------------------------------------------------------------------------------------------------------
Common stock, par value $0.01 per
share: Shares subject to outstanding 1,820,008 $8.0782 $14,702,388 $3,881.43(2)
options under the 1999 Stock Incentive
Plan, as Amended*
=================================================================================================================
Common stock, par value $0.01 per
share: Shares available for future 365,992 $7.375 $2,699,191 $712.59(3)
grant under the 1999 Stock Incentive
Plan as Amended*
=================================================================================================================
Common stock, par value $0.01 per
share: Shares issued under the 1999 100,000 $7.375 $737,500 $194.70(3)
Stock Incentive Plan, as Amended*
=================================================================================================================
Common stock, par value $0.01 per
share: Shares subject to outstanding
options under the 1998 Stock Option 1,324,429 $5.0928 $6,745,052 $1,780.69(4)
Plan*
==================================================================================================================
Common Stock, par value $0.01 per
share: Shares issued under the 1998 103,254 $7.375 $761,498.25 $201.04(3)
Stock Option Plan*
===================================================================================================================
Common stock, par value $0.01 per
share: Shares subject to outstanding
options under the1997 Stock Option 792,144 $1.4573 $1,154,391 $304.76(5)
Plan*
===================================================================================================================
Common stock, par value $0.01 per
share: Shares available for future 123,827 $7.375 $913,224.12 $241.09(3)
grant under the 1997 Stock Option Plan*
===================================================================================================================
Common stock, par value $0.01 per
share: Shares issued under the 1997 291,048 $7.375 $2,146,479 $566.67(3)
Stock Option Plan*
====================================================================================================================
Common stock, par value $0.01 per
share: Shares available for future 444,500 $6.481 $2,880,804.50 $760.53(6)
grant under the Employee Stock Purchase
plan*
=====================================================================================================================
Common stock, par value $0.01 per
share: Shares issued to 100,583 $7.375 $741,799.62 $195.84(3)
consultants/service providers outside
of plans*
======================================================================================================================
Total 5,465,785 N/A $33,482,326 $8,839.34
======================================================================================================================
* The common stock, par value $0.01 per share, includes the associated
rights to purchase series A junior participating preferred stock. The
rights to purchase the series A junior participating preferred stock
are attached to and trade with the shares of the common stock. Value
attributed to such rights, if any, is reflected in the market price of
the common stock.
(1) For the sole purpose of calculating the registration fee, the number
of shares to be registered under this Registration Statement has been
broken down into ten subtotals.
(2) Computed in accordance with Rule 457(h) under the Securities Act. Such
computation is based on the weighted average exercise price of $8.0782
per share covering 1,820,008 outstanding options.
(3) The estimated exercise price of $7.375 per share was computed in
accordance with Rule 457(c) under the Securities Act by averaging the
high and low sales prices of LendingTree common stock as reported by
the Nasdaq National Market on June 27, 2000.
(4) Computed in accordance with Rule 457(h) under the Securities Act. Such
computation is based on the weighted average exercise price of $5.0928
per share covering 1,324,429 outstanding options.
(5) Computed in accordance with Rule 457(h) under the Securities Act. Such
computation is based on the weighted average exercise price of $1.4573
per share covering 792,144 outstanding options.
(6) The exercise price of $6.481 per share, computed in accordance with
Rule 457(h) under the Securities Act, is 85% of the closing price of a
share of LendingTree common stock as reported by the Nasdaq National
Market on June 27, 2000. Pursuant to Section 5(c) of the LendingTree,
Inc. Employee Stock Purchase Plan (Exhibit 10.4) hereto, shares are
sold at 85% of the lesser of the fair market value of such shares on
the offering date or on the exercise date.
- ------------------------------------------------------------------------------
EXPLANATORY NOTE
LendingTree, Inc. ("LendingTree" or the "Company") has prepared
this registration statement in accordance with the requirements of Form S-8
under the Securities Act of 1933, as Amended (the "Securities Act"), to
register shares of Common Stock (the "Common Stock") issuable pursuant to
the employee benefit plans of LendingTree.
This registration statement on Form S-8 also includes a prospectus
prepared in accordance with Instruction C of Form S-8, in accordance with
the requirements of Part I of Form S-3, and may be used for reofferings and
resales on a continuous or delayed basis in the future of up to an
aggregate of 2,659,977 shares that constitute either "control securities"
and/or "restricted securities" which have been issued prior to the filing
of this registration statement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
LendingTree will send or give the documents containing the
information specified in Part I of Form S-8 to employees as specified by
the Securities and Exchange Commission Rule 428(b)(1) under the Securities
Act. LendingTree does not need to file these documents with the Securities
and Exchange Commission either as part of this registration statement or as
prospectuses or prospectus supplements under Rule 424 of the Securities
Act.
REOFFER PROSPECTUS
2,659,977 SHARES OF COMMON STOCK
OF LENDINGTREE, INC.
The shares of Common Stock, $0.01 par value per share, of
LendingTree, Inc. (the "Common Stock") offered hereby will be sold from
time to time by certain stockholders of LendingTree, Inc. ("LendingTree" or
the "Company") described under the caption "Selling Stockholders" in this
prospectus. The Selling Stockholders are current or former employees,
officers and directors of our company or independent contractors who
acquired the shares of Common Stock as compensation for services performed
for LendingTree (the "Selling Stockholders").
The sales may occur in transactions in the over-the-counter market
(quoted on the Nasdaq National Market) at prevailing market prices or in
negotiated transactions. We will not receive proceeds from any of these
sales. We are paying the expenses incurred in registering the shares, but
all selling and other expenses incurred by each of the Selling Stockholders
will be borne by that Selling Stockholder.
The shares of Common Stock are "control securities" and/or
"restricted securities" under the Securities Act of 1933, as amended (the
"Securities Act"), before their sale under this prospectus. This prospectus
has been prepared for the purpose of registering the shares under the
Securities Act to allow for future sales by the Selling Stockholders, on a
continuous or delayed basis, to the public without restriction. Each
Selling Stockholder may be deemed to be an "underwriter" within the meaning
of the Securities Act. Any commissions received by a broker or dealer in
connection with resales of the shares may be deemed to be underwriting
commissions or discounts under the Securities Act.
Our Common Stock is traded on the Nasdaq National Market under the
symbol "TREE." On June 27, 2000, the last reported sale price of the Common
Stock, as reported on the Nasdaq National Market, was $7.625 per share.
-----------------
Investing in the Common Stock involves a high degree risk. For
more information, please see "Risk Factors" beginning on page 6.
-----------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR
DETERMINED WHETHER THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-----------------
June 30, 2000
-----------------
TABLE OF CONTENTS
PAGE
AVAILABLE INFORMATION....................................................3
INCORPORATED DOCUMENTS...................................................4
THE COMPANY..............................................................5
RISK FACTORS.............................................................6
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS.......................18
SELLING STOCKHOLDERS....................................................19
PLAN OF DISTRIBUTION....................................................21
LEGAL MATTERS...........................................................21
EXPERTS.................................................................21
AVAILABLE INFORMATION
LendingTree is subject to the informational reporting requirements
of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and
files reports, proxy statements and other information with the Securities
and Exchange Commission (the "Commission"). These reports, proxy statements
and other information can be inspected and copied at the Public Reference
Room of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549 and
at the Commission's regional offices at 500 West Madison Street, Suite
1400, Chicago, IL 60661-2511 and 7 World Trade Center, 13th Floor, New
York, NY 10048, at prescribed rates. The Commission maintains a website
that contains reports, proxy and information statements and other
information regarding registrants, including LendingTree, that file
electronically with the Commission. The address of this website is
"http://www.sec.gov." In addition, you may obtain information from the
Public Reference Room by calling the Commission at 1-800-SEC-0330. In
addition, our Common Stock is quoted on the Nasdaq National Market System.
Reports, proxy statements, informational statements and other information
concerning LendingTree can be inspected at the offices of the National
Association of Securities Dealers, Inc. at 1735 K Street, N.W., Washington,
D.C. 20006.
LendingTree intends to furnish its stockholders with annual
reports containing additional financial statements and a report thereon by
independent certified public accountants.
A copy of any document incorporated by reference in this
registration statement of which this prospectus forms a part but which is
not delivered with this prospectus will be provided by the Company without
charge to any person to whom this prospectus has been delivered upon the
oral or written request of that person. Requests should be directed to the
attention of the Corporate Secretary, LendingTree, Inc., 11115 Rushmore
Dr., Charlotte, North Carolina 28277. Our telephone number at that location
is (704) 541-5351.
You should only rely on the information incorporated by reference
or provided in this prospectus or any supplement. The Company has not
authorized anyone else to provide you with different information. The
Common Stock is not being offered in any state where the offer is not
permitted. You should not assume that the information in this prospectus or
any supplement is accurate as of any date other than the date on the front
of this prospectus.
INCORPORATED DOCUMENTS
The Commission allows us to "incorporate by reference" information
into this prospectus, which means that we can disclose important
information to you by referring you to another document filed separately
with the Commission. The information incorporated by reference is deemed to
be part of this prospectus, except for any information superseded by
information in this prospectus.
LendingTree's (i) prospectus dated February 15, 2000 and filed on
February 16, 2000 pursuant to Rule 424(b) of the Securities Act, (ii)
LendingTree's registration statement on Form 8-A filed with the Commission
on January 28, 2000 under Section 12 of the Exchange Act and (iii)
LendingTree's Quarterly Report on Form 10-Q filed with the Commission on
May 12, 2000 are incorporated herein by reference. In addition, all
documents subsequently filed by LendingTree pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein
and to be a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for
purposes of this prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is incorporated or
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
prospectus.
THE COMPANY
We offer both an Internet-based loan marketplace for consumers and
lenders and also license our technology or host internet-based systems to
enable other businesses to create their own on-line lending exchanges.
Through our website, www.lendingtree.com, we collect consumer
credit requests and compare these requests and related credit information
to the underwriting criteria of more than 100 participating lenders in our
network. Consumers can receive multiple offers in response to a single
credit request and then compare, review and accept the loan offer that best
suits their needs. Lenders can generate new business that meets their
specific underwriting criteria at a cost that is lower than the cost
associated with offline loan originations. Our marketplace encompasses most
consumer credit categories, including mortgages, home equity loans,
automobile loans, credit cards and personal loans.
We are not a lender; our Internet-based marketplace facilitates
the lending process. Our revenue model depends on revenue generated from
lenders participating in our network who pay fees based upon their receipt
of qualification forms ("transmission fees"), and fees based upon loan
closings ("closed-loan fees"). Our website is powered by our proprietary
loan marketplace technology platform, Lend-X.
We also license or host our Lend-X technology for use by other
businesses, enabling them to create their own customized co-branded or
private-label versions of online lending exchanges. Through these Lend-X
partnerships, we can earn revenue both from network sources, (transmission
fees and closed-loan fees) as well as from technology related to
customization, licensing and hosting the network.
On February 22, 2000, we consummated an initial public offering of
4,197,500 shares of Common Stock for which we received net proceeds of
approximately $44.9 million.
Our executive offices are located at 11115 Rushmore Drive,
Charlotte, North Carolina 28277; our telephone number is (704) 541-5351 and
our facsimile number is (704) 541-1824. Our web site is www.lendingtree.com.
The information contained on the our web site is not incorporated by reference
into this prospectus.
RISK FACTORS
This offering involves a high degree of risk. You should carefully
consider the risks described below and the other information in this
prospectus before deciding to invest in the shares of Common Stock.
RISKS RELATED TO OUR FINANCIAL CONDITION
OUR LIMITED OPERATING HISTORY MAKES OUR BUSINESS AND PROSPECTS DIFFICULT TO
EVALUATE.
We have a limited operating history on which to base your
evaluation of our business and prospects. We were formed in 1996 and began
serving consumers across the United States in July 1998. There is no
significant historical basis to assess how we will respond to competitive,
economic or technological challenges. Our business and prospects must be
considered in light of the risks and uncertainties frequently encountered
by companies in the early stages of development, particularly companies
like us who operate in new and rapidly developing online marketplaces. Our
failure to address these risks and uncertainties could cause our operating
results to suffer and result in the loss of all or part of your investment.
WE HAVE A HISTORY OF LOSSES AND EXPECT LOSSES IN THE FUTURE.
We have never been profitable. We incurred losses from operations
of approximately $17.8 in the three months ended March 31, 2000 and $4.1
million in the same period of 1999. As of March 31, 2000, we had an
accumulated net deficit of approximately $49.4 million. We currently
estimate that we will spend approximately $50.0 million during 2000 on
marketing and advertising, more than double what we spent in 1999. As a
result of these and other expenditures, we anticipate further losses for
the foreseeable future.
We forecast our future expense levels based on our operating plans
and our estimates of future revenue. We may find it necessary to accelerate
expenditures relating to our sales and marketing efforts or otherwise
increase our financial commitment to creating and maintaining brand
awareness among consumers and lenders. If our revenue grows at a slower
rate than we anticipate, or if our spending levels exceed our expectations
or cannot be adjusted to reflect slower revenue growth, we may not achieve
or sustain profitability.
OUR BUSINESS MODEL IS UNPROVEN AND COULD FAIL.
Our revenue model and profit potential are unproven and we cannot
assure you that we will be able to become profitable. Our revenue model
depends heavily on revenue generated from lenders participating in our
network who pay us fees based upon their receipt of credit requests,
"transmission fees", and fees based upon loan closings, "closed-loan fees".
We also license our Lend-X technology to other companies who create single
and multi-lender online marketplaces. To generate revenue we must rapidly
achieve broad market acceptance of our service by both lenders and
consumers who have traditionally used other means to lend and borrow money.
In addition, we must attract a sufficient number of consumers with credit
profiles targeted by our lenders. It is possible that our online loan
marketplace model will not gain the widespread acceptance necessary to
support our business, in which case we may find it necessary to alter our
business model. We cannot accurately predict what, if any, changes we would
make to our business model in response to the uncertainties in the online
lending market. These changes might include shifting all or a portion of
our fees to customers or reducing fees currently charged to lenders to
expand volume more quickly. Shifting fees to consumers may not be feasible,
as other companies may be able to offer comparable services with no fees.
If we are not able to anticipate and adapt to changes in the industry or if
our business model is not successful, we may be unable to expand our
business and the value of our Common Stock could be significantly reduced.
OUR OPERATING RESULTS MAY BE NEGATIVELY IMPACTED BY FLUCTUATIONS IN
INTEREST RATES.
During the quarter ended March 31, 2000, revenue earned from
mortgages, traditionally a market segment that is greatly impacted by
changes in interest rates, represented approximately 44% of our total
revenue. While interest rates during this period were rising, we continued
to show increases in website traffic, transmittal qualification forms for
mortgages and revenue from closed-loan fees for mortgages over the first
quarter of 1999. However, during future periods of rising interest rates we
may experience a decline in consumer traffic to our website and during
periods of robust credit demand, typically associated with falling interest
rates, lenders may have less incentive to use our marketplace. Either of
these events could reduce our revenue and we cannot assess the effects of
interest rates on our business over a broad range of interest rate
environments.
YOU SHOULD NOT RELY ON OUR QUARTERLY OPERATING RESULTS AS AN INDICATION OF
OUR FUTURE RESULTS.
Our quarterly operating results may fluctuate significantly in the
future due to a variety of factors that affect our revenue or expenses in
any particular quarter. Our quarterly results will fluctuate in part based
on the demand for and supply of consumer loans which are a function of
seasonal and other fluctuations in interest rates and related economic
factors, all of which are outside of our control. These temporary
fluctuations could adversely affect our business. In addition, we plan to
increase our operating expenses significantly to expand our sales and
marketing, administration, maintenance and technical support, and product
management groups. If revenue falls below our expectations in any quarter
and we are unable to quickly reduce our spending in response, our operating
results would be lower than expected.
In addition, we expect that as our business matures we will
experience seasonal fluctuations in our operating results due to
fluctuations in consumer credit markets during the year. For example, home
buying behavior is seasonal. Typically the second and third quarters of a
year have a greater number of mortgage closings as compared to the first
and fourth quarters. Because of our limited operating history, it has not
yet been possible for us to assess the impact of seasonal effects on our
business.
OUR FAILURE TO OBTAIN SUFFICIENT FUNDS FROM SUBSEQUENT FINANCINGS MAY
SIGNIFICANTLY IMPEDE OUR GROWTH.
We must achieve and sustain rapid growth for our business model to
succeed. To accomplish this, we will need to raise additional funds in the
future, from equity or debt sources. Our future cash requirements may be
substantial. If additional financing is not available when required or is
not available on acceptable terms, we may be unable to successfully promote
our brand name, develop or enhance our service, take advantage of business
opportunities or respond to competitive pressures, any of which could have
a material adverse effect on our financial condition and results of
operations.
RISKS RELATED TO OUR MARKETS AND STRATEGY
OUR FUTURE SUCCESS IS DEPENDENT UPON INCREASED ACCEPTANCE OF THE INTERNET
BY CONSUMERS AND LENDERS AS A MEDIUM FOR LENDING.
If consumer and lender acceptance of our online marketplace does
not increase, our business will not succeed and the value of your
investment may be adversely affected. The online lending market is new and
rapidly developing. The adoption of online lending in general, and our
marketplace in particular, requires the acceptance of a new way of
conducting business, exchanging information, and applying for credit by
consumers as well as acceptance by lenders that have historically relied
upon traditional lending methods. As a result, we cannot be sure that we
will be able to compete effectively with traditional borrowing and lending
methods.
IF POTENTIAL CONSUMERS PERCEIVE THERE ARE SECURITY OR PRIVACY RISKS
ASSOCIATED WITH OUR BUSINESS, DEMAND FOR OUR SERVICE WILL BE REDUCED.
The secure transmission of confidential personal and financial
information, such as personal address, social security number, and bank
account information, over public networks with consumer authorization is
critical to consumer acceptance of our business. Unauthorized access to or
use of this information could result in potential liability under federal
and state privacy laws and damages for which we would be liable. Usage of
our service could decline if any well-publicized compromise of security of
information on our website or the Internet in general were to occur. We and
other Internet-based companies may not be able to respond adequately to
privacy concerns of potential users as advances in computer capabilities
and other technological developments occur.
IF WE ARE UNABLE TO EXPAND OUR BRAND RECOGNITION, CONSUMER AND LENDER
DEMAND FOR OUR SERVICE WILL BE LIMITED.
If we fail to promote and maintain our brand successfully or incur
significant expenses in promoting our brand and fail to generate a
corresponding increase in revenue as a result of our branding efforts, our
business and the value of your investment could be materially adversely
affected. We believe that continuing to build brand awareness of the
LendingTree marketplace is critical to achieving increased demand for our
service. Brand recognition is a key differentiating factor among providers
of online lending services, and we believe it will be increasingly
important as competition intensifies. In order to increase our brand
awareness, we must succeed in our marketing efforts, provide high-quality
service, and increase the number of consumers using our marketplace. If
visitors to our website do not perceive our existing service to be of high
quality or if we alter or modify our existing service, introduce new
services, or enter into new business ventures that are not favorably
received, the value of our brand could be diluted, which could decrease the
attractiveness of our service to consumers and lenders.
IF OUR PARTICIPATING LENDERS DO NOT PROVIDE COMPETITIVE LEVELS OF SERVICE
TO CONSUMERS, OUR BRAND WILL BE HARMED AND OUR ABILITY TO ATTRACT CONSUMERS
TO OUR WEBSITE WILL BE LIMITED.
Our ability to provide a high-quality borrowing experience depends
in part on consumers receiving competitive levels of convenience, customer
service, pricing terms, and responsiveness from our participating lenders.
If our participating lenders do not provide consumers with competitive
levels of convenience, customer service, price, and responsiveness, the
value of our brand may be harmed and the number of consumers using our
service may decline.
WE MAY HAVE DIFFICULTY INTEGRATING LENDERS INTO OUR ONLINE MARKETPLACE,
WHICH COULD IMPEDE OUR ABILITY TO OFFER A COMPETITIVE SERVICE TO CONSUMERS.
The failure to integrate lenders into our online marketplace could
limit the variety of products that we can offer to our customers.
Integration of a lender into our online marketplace requires a significant
commitment of time and resources on our part and on the part of the lender.
This integration process typically takes up to three months to complete.
Potential lenders may not be willing to invest the time and resources
necessary to achieve this integration, and we may not have sufficient
personnel to devote the time necessary to successfully integrate lenders
into our online marketplace.
WE MAY HAVE DIFFICULTY ATTRACTING A COMPREHENSIVE GROUP OF LENDERS WHICH
COMPLEMENT OUR CURRENT CONSUMER CREDIT PRODUCT COVERAGE.
If we are unable to broaden the offering of consumer credit
products on our network for a wide array of credit profiles and locations,
we may be unable to attract additional consumers or may lose our existing
consumers to other online competitors. The success of our online
marketplace depends on our ability to attract and retain a comprehensive
group of lenders to service consumer needs across a wide array of product
lines, consumer credit profiles, and geographic locations. Lenders may
limit the types of credit they offer due to licensing and regulations, the
types of products they offer, and consumer credit profiles. To this end,
some of the lenders in our network do not extend credit in some states,
others are unable to offer particular loan products, and still others do
not lend to consumers with particular credit profiles.
LENDERS IN OUR NETWORK ARE NOT PRECLUDED FROM OFFERING CONSUMER CREDIT
PRODUCTS OUTSIDE OUR MARKETPLACE.
If a significant number of our potential consumers are able to
obtain loans from our participating lenders without utilizing our service,
our ability to generate revenue may be limited. Because we do not have
exclusive relationships with the lenders whose loan products are offered on
our online marketplace, consumers may obtain offers and loans from these
lenders without using our service. Our lenders can offer their products
directly to consumers through brokers, mass marketing campaigns, or through
other traditional methods of credit distribution. These lenders can also
offer their products over the Internet, either directly to prospective
borrowers, through one or more of our online competitors, or both.
IF WE ARE UNABLE TO DEVELOP AND RETAIN OUR ONLINE RELATIONSHIPS, OUR
BUSINESS WILL BE HARMED.
If we are unable to establish or maintain online relationships
that increase consumer traffic to our website, our business and the value
of your investment could be materially adversely affected. We depend on
establishing and maintaining relationships with a large number of high-
traffic websites for a significant portion of our consumers. For example,
in December 1999, Autobytel.com generated approximately 40% of our
automobile loan requests. The loss of this contractual relationship would
materially reduce our revenue in this product area. There is intense
competition for relationships with companies maintaining these websites,
and we may have to pay significant fees to establish additional
relationships or maintain existing relationships in the future. Even if we
enter into these relationships, they may not attract significant numbers of
consumers. As a result, we may be unable to enter into relationships with
these firms or websites on commercially reasonable terms or at all.
WE MAY NOT BE ABLE TO MANAGE OUR EXPANDING OPERATIONS EFFECTIVELY.
We have recently experienced a period of rapid expansion. In order
to execute our business plan, we must continue to expand significantly. Our
inability to expand our operations in an efficient manner could cause our
expenses to grow disproportionately to our revenue, our revenue to decline
or grow more slowly than expected, or could otherwise have a material
adverse effect on our business and the value of your investment. We had
seven employees in July 1998. As of March 31, 2000, that number had
increased to 140. We expect that the number of our employees will continue
to increase for the foreseeable future. Our anticipated future growth,
combined with the requirements we will face as a public company, will
continue to place a significant strain on our management, systems, and
resources. We will need to continue to expand and maintain close
coordination among our technical, accounting, finance, and sales and
marketing departments. We may not succeed in these efforts.
COMPETITION MAY REDUCE OUR MARKET SHARE AND HARM OUR PERFORMANCE.
Increased competition could result in reduced margins or loss of
market share, either of which could materially adversely affect our
business, results of operations, and financial condition. We operate in a
new industry that, like the broader electronic commerce market, is rapidly
evolving, highly competitive and has low barriers to entry. We expect this
competition will increase. Our current competitors include:
o online and offline lenders, brokers, and credit card
issuers, many of whom operate websites from which
consumers can obtain online interest rate quotes, such as
E-LOAN, giggo.com, and iOwn.com; and
o online and offline referral agents that display rates and
products for multiple lenders and refer consumers to
individual lenders, such as Quicken.com, MSN HomeAdvisor,
and getsmart.com.
In addition, current and potential new competitors could establish
online loan marketplaces that are competitive with ours.
Our ability to compete depends on many factors, including:
o pricing and breadth of product offering;
o time of market entry;
o brand awareness;
o variety, quantity, and quality of partners and online
relationships;
o proprietary and scalable technology infrastructure;
o ease of use and convenience; and
o strength of relationships and depth of technology
integration with customers.
In addition, changes in the methods by which loans are made
through traditional channels of distribution may make electronic commerce a
less attractive means for obtaining loans and could reduce our ability to
generate revenue.
Many of our existing competitors, as well as a number of potential
new competitors, have longer operating histories, greater name recognition,
larger customer bases, and significantly greater financial, technical, and
marketing resources than we do. These competitors may engage in more
extensive product development, undertake more far-reaching marketing
campaigns, adopt more aggressive pricing policies than our participating
lenders, and make more attractive offers to existing and potential
employees and companies with which we have relationships.
OUR BUSINESS COULD SUFFER IF WE LOSE THE SERVICES OF KEY EXECUTIVES
If we lose the services of Douglas Lebda, our founder, Chief
Executive Officer, and a director, or any of our other executive officers
or key employees, our ability to expand our business would be seriously
compromised and the value of our Common Stock may be adversely affected.
Mr. Lebda has been instrumental in determining our strategic direction and
focus and in promoting the concept of an Internet based loan marketplace
for consumers and lenders. We do not maintain key person insurance on any
of our key executives.
RISKS RELATED TO THE INTERNET AND OUR TECHNOLOGY INFRASTRUCTURE
WE MAY EXPERIENCE REDUCED VISITOR TRAFFIC, REDUCED REVENUE, AND HARM TO OUR
REPUTATION IN THE EVENT OF UNEXPECTED NETWORK INTERRUPTIONS CAUSED BY
SYSTEM FAILURES.
Any significant failure to maintain the satisfactory performance,
reliability, security, and availability of our website, filtering systems,
or network infrastructure may cause significant harm to our reputation, our
ability to attract and maintain a high volume of visitors to our website,
and to attract and retain participating consumers and lenders. Our revenue
depends in large part on the number of credit requests submitted by
consumers. Any system interruptions that result in the inability of
consumers to submit these credit requests, or more generally the
unavailability of our service offerings, could have an adverse impact on
our revenue. In addition, we believe that consumers who have a negative
experience with our website may be reluctant to return or recommend
LendingTree to other potential consumers.
In the past, our website has experienced outages and decreased
performance. In the worst such instance to date, we experienced a service
outage for a period of approximately six hours due to a database software
failure. If similar outages occur in the future, they may severely harm our
reputation and our ability to offer our service.
Our computer hardware is located in leased facilities in
Beltsville, Maryland. A full backup system is located in Cupertino,
California. If both of these locations experienced a system failure, the
performance of our website would be harmed. These systems are also
vulnerable to damage from fire, floods, power loss, telecommunications
failures, break-ins, and similar events. Our insurance policies may not
compensate us for any losses that may occur due to any failures or
interruptions in our systems. Any extended period of disruptions could
materially adversely affect our business, results of operations, and
financial condition.
BREACHES OF OUR NETWORK SECURITY COULD SUBJECT US TO INCREASED OPERATING
COSTS AS WELL AS LITIGATION AND OTHER LIABILITIES.
Any penetration of our network security or other misappropriation
of our users' personal information could cause interruptions in our
operations and subject us to liability. Claims against us could also be
based on other misuses of personal information, such as for unauthorized
marketing purposes. These claims could result in litigation and financial
liability. Security breaches could also damage our reputation. We rely on
licensed encryption and authentication technology to effect secure
transmission of confidential information. It is possible that advances in
computer capabilities, new discoveries, or other developments could result
in a compromise or breach of the technology that we use to protect consumer
transaction data. We cannot guarantee that our security measures will
prevent security breaches. We may be required to expend significant capital
and other resources to protect against and remedy any potential or existing
security breaches and their consequences.
RISKS RELATED TO LEGAL UNCERTAINTY
FAILURE TO COMPLY WITH LAWS GOVERNING OUR SERVICE OR MATERIAL CHANGES IN
THE REGULATORY ENVIRONMENT RELATING TO THE INTERNET COULD HAVE A MATERIAL
ADVERSE EFFECT ON OUR BUSINESS.
The loan products available through our website are subject to
extensive regulation by various federal and state governmental authorities.
Because of uncertainties as to the applicability of these laws and
regulations to the Internet and, more specifically, to our business, and
considering our business has evolved and expanded in a relatively short
period of time, we may not always have been, and may not always be, in
compliance with applicable federal and state laws and regulations. Failure
to comply with the laws and regulatory requirements of federal and state
regulatory authorities may result in, among other things, revocation of
required licenses or registrations, loss of approved status, loss of exempt
status, indemnification liability to lenders and others doing business with
us, administrative enforcement actions and fines, class action lawsuits,
cease and desist orders, and civil and criminal liability. The occurrence
of one or more of these events could materially affect our business,
results of operations and financial condition. We recently paid a
settlement relating to allegations that we conducted business in a state
without the appropriate registration.
Many, but not all, states require licenses to solicit or broker to
residents of those states, loans secured by residential mortgages, and/or
other consumer loans, including credit card, automobile and personal loans.
We are not currently licensed and/or able to accept credit requests for all
loan products in every state. We are not currently accepting credit
requests for loan products from residents of states in which we are not
licensed to provide those products. In many of the states in which we are
licensed, it is subject to examination by regulators.
As a computer loan origination system conducting business through
the Internet, we face an additional level of regulatory risk given that
most of the laws governing lending transactions have not been substantially
revised or updated to fully accommodate electronic commerce. Until these
laws, rules, and regulations are revised to clarify their applicability to
transactions conducted through electronic commerce, any company providing
loan-related services through the Internet or other means of electronic
commerce will face compliance uncertainty. Federal law, for example,
generally prohibits the payment or receipt of referral fees in connection
with residential mortgage loan transactions. The applicability of referral
fee prohibitions to the compensation provisions of fee arrangements used by
online companies like us may have the effect of reducing the types and
amount of fees that we may charge in connection with real estate-secured
products.
Regulations promulgated by some states may impose compliance
obligations on any person who acquires 10% or more of our Common Stock,
including requiring that person to periodically file financial and other
personal and business information. If any person acquires 10% or more of
our Common Stock and refuses or fails to comply with these requirements, we
may not be able to obtain a license and existing licensing arrangements in
particular states may be jeopardized. The inability to obtain, or the loss
of, required licenses could have a material adverse effect on our
operations or financial condition.
The parties conducting business with us, such as lenders and
affiliated websites, similarly may be subject to federal and state
regulation. These parties act as independent contractors and not as our
agents in their solicitations and transactions with consumers.
Consequently, we cannot ensure that these entities will comply with
applicable laws and regulations at all times. Failure on the part of a
lender or an affiliated website to comply with these laws or regulations
could result in, among other things, claims of vicarious liability or
negatively impact our reputation. In addition, such failure could
jeopardize the statue of our licenses in various states. The occurrence of
one or more of these events could materially adversely affect our business,
results of operations, and financial condition.
REGULATION OF THE INTERNET IS UNSETTLED, AND FUTURE REGULATIONS COULD
INHIBIT THE GROWTH OF THE INTERNET, DECREASE VISITORS TO OUR WEBSITE, AND
OTHERWISE MATERIALLY ADVERSELY AFFECT OUR BUSINESS.
Existing laws and regulations specifically regulate communications
and commerce on the Internet. Further laws and regulations that address
issues such as user privacy, pricing, online content regulation, taxation,
and the characteristics and quality of online products and services are
under consideration by federal, state, local, and foreign governments and
agencies. Several telecommunications companies have petitioned the Federal
Communications Commission to regulate Internet service providers and online
services providers in a manner similar to the regulation of long distance
telephone carriers and to impose access fees on such companies. This
regulation, if imposed, could increase the cost of transmitting data over
the Internet. Moreover, it may take years to determine the extent to which
existing laws relating to issues such as intellectual property ownership
and infringement and personal privacy are applicable to the Internet. Many
of these laws were adopted prior to the advent of the Internet and related
technologies and, as a result, do not contemplate or address the unique
issues of the Internet and related technologies. The Federal Trade
Commission and government agencies in certain states have been
investigating Internet companies regarding their use of personal
information. We could incur additional expenses if any new regulations
regarding the use of personal information are introduced or if these
agencies choose to investigate our privacy practices. In addition, recent
consumer privacy legislation enacted as part of the Gramm-Leach-Bliley Act
will restrict the dissemination of nonpublic consumer information to
nonaffiliated third parties absent consumer consent and will require
regulated institutions to maintain privacy policies when it becomes
effective during 2000. Any new laws or regulations relating to the
Internet, or new application or interpretation of existing laws, could
inhibit the growth of the Internet as a medium for commerce or credit
procurement which could, in turn, decrease the demand for our service or
otherwise materially adversely affect our business, results of operations,
and financial condition. Such laws, rules, and regulations, or other
applicable laws, rules or regulations, could make compliance more difficult
or expensive, restrict our ability to provide lending services, further
limit or restrict the amount of fees charged by us or otherwise adversely
affect our business or prospects.
WE MAY BE LIMITED OR RESTRICTED IN THE WAY WE ESTABLISH AND MAINTAIN OUR
ONLINE RELATIONSHIPS BY LAWS GENERALLY APPLICABLE TO OUR BUSINESS.
The Real Estate Settlement Procedures Act ("RESPA") and related
regulations generally prohibit the payment or receipt of fees or any other
item of value for the referral of a real estate-secured loan to a loan
broker or lender. The act and the related regulations also prohibit fee
shares or splits or unearned fees in connection with the provision of
residential real estate settlement services, including mortgage brokerage
or lending services. Notwithstanding these prohibitions, RESPA permits
payments for goods or facilities furnished or for services actually
performed, so long as those payments bear a reasonable relationship to the
market value of the goods, facilities, or services provided. Failure to
comply with RESPA may result in, among other things, administrative
enforcement actions, class action lawsuits, cease and desist orders and
civil and criminal liability.
The mortgage and home equity products offered through our
marketplace are residential real estate secured loans subject to these
provisions of RESPA. Consequently, our online relationships with lenders
and other Internet companies and websites that offer these products are
subject to RESPA's prohibitions on payment or receipt of fees for referrals
and for unearned fees. We believe that we have structured these
relationships to comply with these regulations. The applicability of
RESPA's compensation provisions to these types of Internet-based
relationships, however, is unclear and the appropriate regulatory agency
has provided limited guidance to date on the subject.
AS AN ONLINE LOAN MARKETPLACE WE MAY BE LIABLE AS A RESULT OF INFORMATION
RETRIEVED FROM OUR WEBSITE OR THE WEBSITES OF COMPANIES WITH WHICH WE
MAINTAIN RELATIONSHIPS.
We may be subject to legal claims relating to information that is
published or made available on our website and the other websites linked to
it. Our service may subject us to potential liabilities or claims resulting
from:
o lost or misdirected messages from our network lenders,
consumers or vendors;
o illegal or fraudulent use of e-mail; or
o interruptions or delays in transmission of Qualification
Forms or lenders' offers.
In addition, we could incur significant costs in investigating and
defending such claims, even if we ultimately are not found liable. If any
of these events occur, our business and the value of our Common Stock could
be materially adversely affected.
FAILURE TO PROTECT OUR INTELLECTUAL PROPERTY RIGHTS COULD HARM OUR
BRAND-BUILDING EFFORTS AND ABILITY TO COMPETE EFFECTIVELY.
Failure to protect our intellectual property could harm our brand
and our reputation, devalue our content in the eyes of our customers, and
adversely affect our ability to compete effectively. Further, enforcing or
defending our intellectual property rights, including our service marks,
patent applications, copyrights and trade secrets, could result in the
expenditure of significant financial and managerial resources. We regard
our intellectual property as critical to our success. To protect the rights
to our intellectual property, we rely on a combination of patent, trademark
and copyright law, trade secret protection, confidentiality agreements, and
other contractual arrangements with our employees, affiliates, clients, and
others. The protective steps we have taken may be inadequate to deter
misappropriation of our proprietary information. We may be unable to detect
the unauthorized use of, or take appropriate steps to enforce, our
intellectual property rights. We have applied for a U.S. patent and filed a
Patent Cooperation Treaty international patent application on our Lend-X
technology and our online loan market process. It is possible that our
patent applications will be denied or granted in a very limited manner such
that they offer little or no basis for us to deter competitors from
employing similar technology or processes or allow us to defend against
third party claims of patent infringement.
While the number of software and business method patents issued by
the U.S. Patent and Trademark Office has been growing substantially in
recent years, there is still a significant degree of uncertainty associated
with these patents.
RISKS RELATED TO OUR STOCK PRICE AND CORPORATE CONTROL
OUR COMMON STOCK MAY EXPERIENCE EXTREME PRICE AND VOLUME FLUCTUATIONS AND
HOLDERS OF OUR STOCK MAY NOT BE ABLE TO RESELL THEIR SHARES AT OR ABOVE THE
PRICE THEY PAID FOR IT
The stock market in general and the market prices of shares in
newly public technology companies including us, have been extremely
volatile and have experienced fluctuations that have often been unrelated
or disproportionate to the operating performance of such companies. The
market price of our Common Stock has been and may continue to be highly
volatile and subject to wide fluctuations in response to many factors, some
of which are largely beyond our control. These factors include:
o quarterly variations in our results of operations;
o adverse business developments;
o changes in financial estimates by securities analysts;
o investor perception of us and online lending services in
general;
o announcements by our competitors of new products and
services; and
o general economic conditions, including interest rate
fluctuations.
IT MAY BE DIFFICULT FOR A THIRD PARTY TO ACQUIRE OUR COMPANY, WHICH COULD
DEPRESS OUR STOCK PRICE.
Delaware corporate law and our amended and restated certificate of
incorporation and by-laws contain provisions that could have the effect of
delaying, deferring, or preventing a change in control of LendingTree or
our management that stockholders may consider favorable or beneficial.
These provisions could discourage proxy contests and make it more difficult
for you and other stockholders to elect directors and take other corporate
actions. These provisions could also limit the price that investors might
be willing to pay in the future for shares of our Common Stock. These
provisions include:
o authorization to issue "blank check" preferred stock,
which is preferred stock that can be created and issued
by the board of directors without prior stockholder
approval, with rights senior to our common stockholders;
o a staggered board of directors, so that it would take
three successive annual meetings to replace all
directors;
o prohibition of stockholder action by written consent; and
o advance notice requirements for the submission by
stockholders of nominations for election to the board of
directors and for proposing matters that can be acted
upon by stockholders at a meeting.
In addition, we are party to a stockholder rights agreement which
will make it more difficult for a third party to acquire us without the
support of our board of directors and principal stockholders.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements within the
meaning of Section 27A of the Securities Act and Section 21E of the
Exchange Act. Forward-looking statements include, but are not limited to,
statements about our plans, objectives, expectations, intentions and
assumptions and other statements that are not historical facts. When used
in this prospectus, the words "expect," "anticipate," "intend," "plan,"
"believe," "seek," "estimate" and similar expressions are generally
intended to identify forward-looking statements. Because these
forward-looking statements involve risks and uncertainties, actual results
may differ materially from those expressed or implied by these
forward-looking statements. We do not intend to update or revise any
forward-looking statements, whether as a result of new information, future
events or otherwise.
SELLING STOCKHOLDERS
The 2,659,977 shares of Common Stock of LendingTree to which this
prospectus relates are being registered for reoffers and resales by our
present and former employees, officers and directors and independent
contractors named below, who acquired the shares of Common Stock pursuant
to our "employee benefit plans" as that term is defined in Rule 405 of
Regulation C under the Securities Act. The Selling Stockholders may resell
all, a portion or none of such shares of Common Stock from time to time. In
addition, this prospectus covers and may be used by unnamed non-affiliate
Selling Stockholders who individually hold less than 1,000 shares of Common
Stock issued under the "employee benefit plans."
No. of Shares
Registered No. of Shares
No. of Shares Under This Owned After
Name Title Owned(1) Prospectus(2) Offering
---- ----- ------------- ------------- -------------
David Anderson* Senior Vice President - 129,599 114,299 15,300
Operations
James Bennett* Senior Vice President, 285,439 152,399 133,040
Strategy Corporate
Development
Steve Campbell* Chief Information 107,549 107,149 400
Officer
James Carthaus* Director 72,350 57,150 15,200
Richard Field* Director 837,952 392,511 445,441
Keith Hall* Chief Financial Officer, 213,335 152,399 60,936
Senior Vice President,
Treasurer
Douglas Lebda* Chief Executive Officer 1,544,163 686,639 857,524
and Director
Virginia Rebata* Senior Vice President - 79,299 76,199 3,100
Human Resources
Thomas Reddin* Chief Marketing Officer 285,749 285,749 -
Richard Stiegler* Chief Technology 135,779 135,755 24
Officer
W. James Tozer, Director 551,174 137,185 413,989
Jr.*
Robert Flemma, Jr. General Counsel 50,800 50,800 -
Robert G. Wilson* Chairman Emeritus 257,383 207,218 50,165
Bruce Gregory Independent Contractor 2,540 2,540 -
Chris Cox Director of Lend-X 20,200 1,640 18,560
Implementation
Pamela Friedman Former Employee 33,020 19,474 13,546
Nelson Macy Former Employee 3,175 3,175 -
J. Edward Powell Director of Investor 28,199 1,270 26,929
Relations
Mitchell York Former President 139,700 25,400 114,300
Cary Aminoff Independent Contractor 3,810 - 3,810
Paul Barrows Developer 19,685 5,000 14,685
Donald Colby Former Chief Operating 305,733 933 304,800
Officer
Louis F Dempsey Independent Contractor 7,934 7,934 -
Jerry J. Jasinowski Independent Contractor 3,882 3,882 -
Roger M. Lynch Independent Contractor 41,582 6,694 34,888
James P. Miscoll Independent Contractor 3,353 3,353 -
John Porta Independent Contractor 26,457 6,350 20,107
Peter Pulver Independent Contractor 7,934 7,934 -
Ellen Rose Independent Contractor 7,634 7,634 -
Seth Page Independent Contractor 1,058 1,058 -
* Affiliates of the Company.
(1) As of April 30, 2000 the number of shares owned by listed
individuals includes restricted stock, options and warrants to
purchase shares of Common Stock under our employee benefit plans,
whether or not exercisable as of, or within sixty days of, the
date of this Prospectus as well as shares of Common Stock
beneficially owned by the Selling Stockholders. As of April 30,
2000 there were 18,023,492 shares of Common Stock outstanding.
(2) For the named affiliates, includes options to purchase shares of
our Common Stock issued to the Selling Stockholders under our
employee benefit plans, whether or not exercisable as of, or
within sixty days of, the date of this Prospectus. For
non-affiliates, options to purchase shares of our Common Stock
issued under our employee benefit plans are excluded.
PLAN OF DISTRIBUTION
Each Selling Stockholder may sell his or her shares of Common
Stock for value from time to time under this prospectus in one or more
transactions on Nasdaq, in negotiated transactions or in a combination of
such methods of sale, at market prices prevailing at the time of sale, at
prices related to such prevailing market prices or at prices otherwise
negotiated. The Selling Stockholders may effect such transactions by
selling the shares of Common Stock to or through broker-dealers, and such
broker-dealers may receive compensation in the form of underwriting
discounts, concessions or commissions from the Selling Stockholders and/or
the purchasers of the shares of Common Stock for whom such broker-dealers
may act as agent (which compensation may be less than or in excess of
customary commissions).
Each Selling Stockholder and any broker-dealer that participates
in the distribution of the shares of Common Stock may be deemed to be an
"underwriter" within the meaning of Section 2(11) of the Securities Act,
and any commissions received by them and any profit on the resale of the
shares sold by them may be deemed to be underwriting discounts and
commissions under the Securities Act. All selling and other expenses
incurred by the Selling Stockholders will be borne by the Selling
Stockholders. We will pay all other expenses in connection with this
offering and will not receive any proceeds from sales of any shares of
Common Stock by the Selling Stockholders.
In addition to any shares of Common Stock sold hereunder, the
Selling Stockholders may sell shares of Common Stock in compliance with all
of the requirements of Rule 144. Notwithstanding the foregoing, the amount
of securities to be reoffered or resold by means of this prospectus, by
each person, may not exceed, during any three-month period, the amount
specified in Rule 144(e). There is no assurance that the Selling
Stockholders will sell all or any portion of the shares of Common Stock
offered hereby.
LEGAL MATTERS
The validity of the shares of Common Stock which are originally
offered under the Registration Statement of which this reoffer prospectus
forms a part will be passed upon for LendingTree by Skadden, Arps, Slate,
Meagher & Flom LLP.
EXPERTS
The financial statements incorporated in this prospectus by
reference to the Registration Statement on Form S-1, have been so
incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
by the registrant, LendingTree, a Delaware corporation, pursuant to the
Exchange Act, are incorporated by reference in this registration statement:
(1) LendingTree's registration statement (Registration No.
333-91839) on Form S-1 filed with the Commission on December 1, 1999, as
amended and LendingTree's U.S. prospectus filed with the Commission under
Rule 424(b) under the Securities Act, filed with the Commission on February
16, 2000;
(2) The description of LendingTree's outstanding Common Stock
contained in LendingTree's registration statement on Form 8-A filed with
the Commission on January 28, 2000 under Section 12 of the Exchange Act;
(3) LendingTree's Quarterly Report on Form 10-Q filed with the
Commission on May 12, 2000; and
All documents subsequently filed by LendingTree pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference herein and to be a
part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes
of this registration statement to the extent that a statement contained
herein or in any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of Delaware Law authorizes a court to award or a
corporation's board of directors to grant indemnity to directors and
officers in terms sufficiently broad to permit such indemnification under
some circumstances for liabilities arising under the Securities Act and to
provide for the reimbursement of expenses incurred.
As permitted by the Delaware Law, Article VIII of our Amended and
Restated Bylaws provides that (1) we are required to indemnify our
directors and officers to the fullest extent permitted by the Delaware Law,
subject to very limited exceptions; (2) we are permitted to indemnify our
other employees to the extent that we indemnify our officers and directors,
unless otherwise required by law, our Amended and Restated Certificate, our
Amended and Restated Bylaws or agreements; (3) we are required to advance
expenses, as incurred, to our directors and officers in connection with a
legal proceeding to the fullest extent permitted by the Delaware Law,
subject to very limited exceptions; and (4) the rights conferred in the
Amended and Restated Bylaws are not exclusive. As permitted by the Delaware
Law, our Amended and Restated Certificate includes a provision that
eliminates the personal liability of our directors for monetary damages for
breach of fiduciary duty as a director, except for liability (1) for any
breach of the director's duty of loyalty to us or our stockholders; (2) for
acts of omissions not in good faith or that involve intentional misconduct
or a knowing violation of law; (3) under Section 174 of the Delaware Law
(regarding payments of dividends; stock purchases or redemptions which are
unlawful) or (4) for any transaction from which the director derived an
improper personal benefit. This provision in the Amended and Restated
Certificate does not eliminate the directors' fiduciary duty, and in
appropriate circumstances equitable remedies such as injunctive or other
forms of non-monetary relief will remain available under Delaware Law. In
addition, each director will continue to be subject to liability for breach
of the director's duty of loyalty to us for acts or omissions not in good
faith or involving intentional misconduct, for knowing violations of law,
for actions leading to improper personal benefit to the director and for
payment of dividends or approval of stock repurchases or redemptions that
are unlawful under Delaware Law. The provision also does not affect a
director's responsibilities under any other law, such as the federal
securities laws or state or federal environmental laws.
Under Article VIII of our Amended and Restated Bylaws, we are
authorized to, and have purchased, insurance covering our directors and
officers against liability asserted against them in their capacity as
officers or directors. In addition, we have entered into indemnification
agreements with our directors, pursuant to which, under certain
circumstances, we are required to indemnify and advance expenses to such
director.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The securities that are to be reoffered or resold pursuant to this
registration statement were issued to employees of LendingTree pursuant to
employee benefit plans maintained by LendingTree in transactions that were
exempt from the registration requirements of the Securities Act pursuant to
Section 4(2) thereto and/or Rule 701 thereunder.
ITEM 8. EXHIBITS.
A list of exhibits is set forth on the Exhibit Index which
immediately precedes the exhibits and which is incorporated by reference
herein.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(b) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(1) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(2) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; and
(3) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1) and (a)(2) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by LendingTree pursuant to Section 13 or 15(d) of the Exchange
Act that are incorporated by reference in the registration statement.
(c) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(d) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(e) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(f) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act
of 1933, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly
caused this registration statement has been signed on its behalf by the
undersigned, thereunto duly authorized in the City of Charlotte, State of
North Carolina, on this thirtieth day of June, 2000.
LENDINGTREE, INC.
(Registrant)
By: /s/ Douglas R. Lebda
--------------------------
Douglas R. Lebda
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Douglas R. Lebda and Keith
B. Hall, and each of them, his true and lawful attorney-in-fact and agents
with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all
amendments to this registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite or necessary to be done in and about
the premises, as fully to all intents and purposes as he might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents or any of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof. This power of attorney
may be executed in counterparts.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on this thirtieth day of June, 2000.
NAME TITLE
----- -----
/s/ Douglas R. Lebda Chief Executive Officer and Director
- ------------------------- (principal executive officer)
Douglas R. Lebda
/s/ Keith B. Hall Senior Vice President,
- ------------------------ Chief Financial Officer and Treasurer
Keith B. Hall
/s/ Matthew A. Packey Vice President and Controller
- ------------------------
Matthew A. Packey
/s/ James A. Carthaus Director
- ------------------------
James A. Carthaus
/s/ Richard Field Director
- ------------------------
Richard Field
/s/ Robert Kennedy Director
- ------------------------
Robert Kennedy
/s/ Daniel C. Lieber Director
- ------------------------
Daniel C. Lieber
/s/ Adam Mizel Director
- ------------------------
Adam Mizel
/s/ W. James Tozer, Jr. Director
- -----------------------
W. James Tozer, Jr.
EXHIBIT INDEX
Exhibit No. Description of Exhibit
- ----------- ----------------------
4.1 Form of certificate representing shares of Common
Stock (incorporated by reference to the Company's
Registration Statement on Form S-1 (Registration No.
333-91839)).
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.+
10.1 Amended and Restated 1999 Stock Incentive Plan of
LendingTree, Inc.(incorporated by reference to the
Company's Registration Statement on Form S-1
(Registration No. 333-91839)).
10.2 1998 Stock Option Plan of LendingTree,
Inc.(incorporated by reference to the Company's
Registration Statement on Form S-1 (Registration No.
333-91839)).
10.3 1997 Stock Option Plan of CreditSource USA, INC.
(formerly known as Lewisburg Ventures, INC. and a
predecessor to LendingTree, Inc.(incorporated by
reference to the Company's Registration Statement on
Form S-1 (Registration No. 333-91839)).
10.4 LendingTree, Inc. Employee Stock Purchase Plan.+
23.1 Consent of PricewaterhouseCoopers LLP.+
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 5.1).+
24.1 Power of Attorney (included on the signature page
hereto).+
+ Filed herewith.