As filed with the Securities and Exchange Commission on December 14, 2001
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
the Securities Act of 1933
LENDINGTREE, INC.
(Exact name of registrant as specified in its charter)
Delaware 25-1795344
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
11115 Rushmore Drive
Charlotte, North Carolina 28277
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(Address of principal executive offices) (Zip code)
LENDINGTREE 401(k) RETIREMENT SAVINGS PLAN
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(Full title of the plan)
Douglas R. Lebda
Chief Executive Officer
LendingTree, Inc.
11115 Rushmore Drive
Charlotte, North Carolina 28277
(704) 541-5351
(Name, address and telephone number, including area code, of agent for service)
WITH COPIES TO:
Sean M. Jones Robert J. Flemma, Jr.
Kennedy Covington Lobdell & Hickman, L.L.P. General Counsel
100 North Tryon Street LendingTree, Inc.
Suite 4200 11115 Rushmore Drive
Charlotte, North Carolina 28202 Charlotte, North Carolina 28277
(704) 331-7400 (704) 541-5351
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Registration
to be Registered (1) Registered Per Share Offering Price Fee (2)
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Common Stock, par 500,000 $4.88 $2,440,000 $584 (2)
value $0.01 per share
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(1) This registration statement covers 500,000 shares of common stock, par
value $0.01 per share, of LendingTree, Inc., a Delaware corporation
("LendingTree"), which may be offered and sold from time to time
pursuant to the LendingTree.com 401(k) Retirement Savings Plan (the
"Plan"). The common stock includes the associated rights to purchase
series A junior participating preferred stock that are attached to and
trade with the shares of the common stock. In addition, pursuant to
Rule 416(c) under the Securities Act of 1933, this registration
statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the Plan.
(2) Pursuant to Rules 457(c) and 457(h)(1) under the Securities Act of
1933, the registration fee is calculated based upon $4.88, the average
of the high and low price of LendingTree's common stock on the Nasdaq
National Market on December 11, 2001. Any value attributable to the
rights to purchase series A junior participating preferred stock that
are attached to shares of common stock is reflected in the market price
of the common stock. Pursuant to Rule 457(h)(2), no separate
registration fee is required with respect to the plan interests being
registered hereby.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The information required by Item 1 is omitted from this Registration
Statement in accordance with the Note to Part I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
The information required by Item 2 is omitted from this Registration
Statement in accordance with the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
LendingTree and the Plan hereby incorporate by reference into this
Registration Statement the following documents filed with the Securities and
Exchange Commission:
(a) LendingTree's Annual Report on Form 10-K for the fiscal year
ended December 31, 2000;
(b) LendingTree's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 2001, June 30, 2001 and September 30,
2001;
(c) LendingTree's Current Reports on Form 8-K dated July 24, 2001,
September 13, 2001 and November 29, 2001; and
(d) The description of LendingTree's Common Stock contained in its
Registration Statement on Form 8-A filed pursuant to Section
12 of the Exchange Act on January 28, 2000, including any
amendments and reports filed for the purpose of updating such
description.
All documents subsequently filed by LendingTree or the Plan 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 is
also 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 102 of the Delaware General Corporation Law ("DGCL"), as
amended, allows a corporation to eliminate the personal liability of directors
of a corporation to the corporation or its stockholders for monetary damages for
a breach of fiduciary duty as a director, except where the director breached his
duty of loyalty, failed to act in good faith, engaged in intentional misconduct
or knowingly violated a law, authorized the payment of a dividend or approved a
stock repurchase in violation of Delaware corporate law or obtained an improper
personal benefit.
Section 145 of the DGCL provides, among other things, that LendingTree
may indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding, other
than an action by or in the right of LendingTree, by reason of the fact that the
person is or was a director, officer, agent or employee of LendingTree or is or
was serving at LendingTree's request as a director, officer, agent, or employee
of another corporation, partnership, joint venture, trust or other enterprise,
against expenses, including attorneys' fees, judgment, fines and amounts paid in
settlement actually and reasonably incurred by the person in connection with
such action, suit or proceeding. The power to indemnify applies (a) if such
person is successful on the merits or otherwise in defense of any action, suit
or proceeding, or (b) if such person acted in good faith and in a manner he
reasonably believed to be in the best interest, or not opposed to the best
interest, of LendingTree, and with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The power to
indemnify applies to actions brought by or in the right of LendingTree as well,
but only to the extent of defense expenses, including attorneys' fees but
excluding amounts paid in settlement, actually and reasonably incurred and not
to any satisfaction of judgment or settlement of the claim itself, and with the
further limitation that in such actions no indemnification shall be made in the
event of any adjudication of negligence or misconduct in the performance of his
duties to LendingTree, unless the court believes that in light of all the
circumstances indemnification should apply.
Section 174 of the DGCL provides, among other things, that a director,
who willfully or negligently approves of an unlawful payment of dividends or an
unlawful stock purchase or redemption, may be held liable for such actions. A
director who was either absent when the unlawful actions were approved or
dissented at the time, may avoid liability by causing his or her dissent to such
actions to be entered in the books containing the minutes of the meetings of the
board of directors at the time such action occurred or immediately after such
absent director receives notice of the unlawful acts.
LendingTree's Amended and Restated Certificate of Incorporation
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:
- for any breach of the director's duty of loyalty to
LendingTree or its stockholders;
- for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law;
- under the section 174 of the DGCL regarding unlawful dividends
and stock purchases; or
- for any transaction from which the director derived an
improper personal benefit.
These provisions are permitted under the DGCL.
LendingTree's Amended and Restated Bylaws provide that:
- LendingTree must indemnify its directors and officers to the
fullest extent permitted by Delaware law;
- LendingTree may indemnify its other employees and agents to
the same extent that it indemnified its officers and
directors, unless otherwise determined by its Board of
Directors; and
- LendingTree must advance expenses, as incurred, to its
directors and executive officers in connection with a legal
proceeding to the fullest extent permitted by Delaware law.
The indemnification provisions contained in LendingTree's Amended and
Restated Certificate of Incorporation and Amended and Restated Bylaws are not
exclusive of any other rights to which a person may be entitled by law,
agreement, vote of stockholders or disinterested directors or otherwise. In
addition, LendingTree maintains insurance on behalf of its directors and
executive officers insuring them against any liability asserted against them in
their capacities as directors or officers or arising out of such status.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
A list of exhibits is set forth on the Exhibit Index that immediately
precedes the exhibits and that is incorporated by reference herein.
LendingTree undertakes that it will submit or has submitted the Plan
and any amendment thereto to the Internal Revenue Service ("IRS") in a timely
manner and has made or will make all changes required by the IRS in order to
qualify the Plan.
Item 9. Undertakings.
The Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) 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
(iii) 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)(i) and (a)(ii) 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.
(b) 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.
(c) 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.
(d) That, for purposes of determining any liability under the
Securities Act, each filing of LendingTree's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of the 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.
(e) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of LendingTree 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 LendingTree of expenses incurred or paid by a director,
officer or controlling person of LendingTree 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, LendingTree 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 14th day of December, 2001.
LENDINGTREE, INC.
(Registrant)
By: /s/ Douglas R. Lebda
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Douglas R. Lebda
Chief Executive Officer
The Plan. Pursuant to the requirements of the Securities Act of 1933,
the LendingTree.com 401(k) Retirement Savings Plan has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Charlotte, State of North Carolina, on this 14th
day of December, 2001.
LENDINGTREE 401(k) RETIREMENT SAVINGS PLAN
(Plan)
By: LendingTree, Inc., Plan sponsor
By: /s/ Douglas R. Lebda
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Douglas R. Lebda
Chief Executive Officer
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 14th day of December, 2001.
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 (principal financial officer)
/s/ Matthew A. Packey Vice President and Controller
------------------------------------ (principal accounting officer)
Matthew A. Packey
/s/ Richard Field Director
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Richard Field
/s/ Robert Kennedy Director
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Robert Kennedy
/s/ Daniel C. Lieber Director
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Daniel C. Lieber
/s/ Michael DeVico Director
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Michael DeVico
/s/ W. James Tozer, Jr. Director
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W. James Tozer, Jr.
/s/ Robert A. Spass Director
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Robert A. Spass
LENDINGTREE, INC.
EXHIBIT INDEX
Exhibit No. Exhibit Description
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4.1 Amended and Restated Articles of Incorporation of LendingTree,
Inc. (incorporated by reference to Exhibit 3.1 to
LendingTree's Registration Statement on Form S-1/A
(No. 333-91839))
4.2 Amended and Restated Bylaws of LendingTree, Inc. (incorporated
by reference to Exhibit 3.2 to LendingTree's Registration
Statement on Form S-1/A (No. 333-91839))
4.3 LendingTree's Shareholder Rights Plan (incorporated by
reference to Exhibit 4.2 to LendingTree's Registration
Statement on Form S-1/A (No. 333-91839))
5 Opinion of Kennedy Covington Lobdell & Hickman, L.L.P. as to
the legality of the securities being registered *
23.1 Consent of PricewaterhouseCoopers, LLP *
23.2 Consent of Kennedy Covington Lobdell & Hickman, L.L.P.
(included in Exhibit 5 hereto)
24 Power of Attorney *
* Filed herewith.