As filed with the Securities and Exchange Commission on August 7, 2014
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________________________________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
____________________________________________________________
Tree.com, Inc.
(Exact name of registrant as specified in charter)
Delaware | 26-2414818 | |
(State or other jurisdiction | (IRS Employer | |
of incorporation) | Identification No.) | |
11115 Rushmore Drive, Charlotte, NC | 28277 | |
(Address of principal executive offices) | (Zip Code) | |
_____________________________________________________________
Fourth Amended and Restated Tree.com, Inc. 2008 Stock and Annual Incentive Plan
(Full title of the plan)
_____________________________________________________________
Douglas R. Lebda
Chief Executive Officer
Tree.com, Inc.
11115 Rushmore Drive
Charlotte, North Carolina 28277
(Name and address of agent for service)
(704)541-5351
(Telephone number, including area code, of agent of service)
With a copy to:
John D. Tishler, Esq.
Sheppard, Mullins, Richter & Hampton, LLP
12275 El Camino Real, Suite 200
San Diego, California 92130
(858) 720-8943
_____________________________________________________________
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of "large accelerated filer," "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer o | Accelerated filer x | Non-accelerated filer o | Smaller reporting company o | |||
(Do not check if a smaller reporting company) | ||||||
CALCULATION OF REGISTRATION FEE
______________________________________________________________________________________________________
Title of securities to be registered | Amount to be registered (1) | Proposed maximum offering price per share (2) | Proposed maximum aggregate offering price (2) | Amount of registration fee |
Common Stock, par value $0.01 per share | 1,000,000 shares | $26.59 | $26,590,000 | $3,425 |
(1) Pursuant to Rules 416 and 457 under the Securities Act of 1933, as amended, this Registration Statement shall also cover any additional shares of common stock that may become issuable pursuant to the anti-dilution adjustment provisions of the Fourth Amended and Restated Tree.com, Inc. 2008 Stock and Annual Incentive Plan (the "Incentive Plan").
(2) Pursuant to Rule 457(h), the maximum offering price, per share and in the aggregate, and the registration fee were calculated based upon the actual exercise price for shares subject to outstanding options under the Incentive Plan. The following chart shows the calculation of the registration fee:
Type of Shares | Number of shares | Exercise price per share (as applicable) ($) | Maximum aggregate offering price ($) |
Shares subject to issuance upon exercise of stock options outstanding under the Incentive Plan | 1,000,000 | $26.59 | $26,590,000 |
The Registration Statement shall become effective upon filing in accordance with Rule 462(a) under the Securities Act of 1933, as amended.
EXPLANATORY NOTE
This Registration Statement on Form S-8 is filed by Tree.com, Inc., a Delaware corporation (the “Registrant” or “Company”), relating to 1,000,000 shares of the Company’s common stock, par value $0.01 per share, issuable to directors, officers, employees, and consultants of the Company and the Company’s subsidiaries under the Fourth Amended and Restated Tree.com, Inc. 2008 Stock and Annual Incentive Plan (the “Incentive Plan”). This Registration Statement registers the 1,000,000 shares that were added to the authorized shares under the Incentive Plan upon the adoption by the Company’s stockholders of the fourth amendment and restatement of the Incentive Plan on June 11, 2014.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Securities and Exchange Commission (the “SEC”) allows the Registrant to “incorporate by reference” the information that the Registrant files with the SEC, which means that the Registrant can disclose important information by reference to those documents. The information incorporated by reference is considered to be part of this Registration Statement, and later information filed with the SEC will update and supersede this information. The following documents filed by the Registrant with the SEC are hereby incorporated by reference into this Registration Statement:
• | The Registrant’s latest Annual Report on Form 10-K for the fiscal year ended December 31, 2013, filed on March 17, 2014; |
• | All reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since the end of the fiscal year covered by the annual report referenced in paragraph (a) above; and |
• | The description of the Registrant’s common stock contained in the Registrant’s Registration Statement on Form 8-A (File No. 333-152700) filed with the SEC on August 5, 2008, pursuant to Section 12(b) of the Exchange Act, including any amendments or reports filed for the purpose of updating such description. |
In addition, all documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered by this Registration Statement have been sold or which deregisters all such securities then remaining unsold, will be incorporated by reference into this Registration Statement 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 the purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or deemed to be incorporated by reference herein modifies or supersedes such statement. Any 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 the General Corporation Law of the State of Delaware (the “DGCL”) provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, in which such person is made a party by reason of the fact that the person is or was a director, officer, employee or agent of the corporation (other than an action by or in the right of the corporation-a “derivative action”), if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. A similar standard is applicable in the case of derivative actions, except that indemnification only extends to expenses (including attorneys’ fees) incurred in connection with the defense or settlement of such action, and the statute requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. The statute provides that it is not exclusive of other indemnification that may be granted by a corporation’s by-laws, disinterested director vote, stockholder vote, agreement or otherwise.
The Company’s Amended and Restated Certificate of Incorporation provides that no director shall be liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation on liability is not permitted under the DGCL, as now in effect or as amended. Currently, Section 102(b)(7) of the DGCL requires that liability be imposed for the following:
• | any breach of the director’s duty of loyalty to the Company or its stockholders; |
• | acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; |
• | unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the DGCL; and |
• | any transaction from which the director derived an improper personal benefit. |
The Company’s Amended and Restated By-Laws provide that, to the fullest extent authorized by the DGCL, as now in effect or as amended, the Company will indemnify any person who was or is a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding by reason of the fact that such person, or a person of whom he or she is the legal representative, is or was a director or officer of the Company, or by reason of the fact such person, or a person of whom he or she is the legal representative is or was serving, at the Company’s request, as a director, officer, or trustee of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans maintained or sponsored by the Company. To the extent authorized by the DGCL, the Company will indemnify such persons against all expenses, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such persons in connection with such service. Any amendment of these provisions will not reduce the indemnification obligations of the Company relating to actions taken before such amendment.
The Company maintains a directors’ and officers’ liability insurance policy insuring its directors and officers against certain liabilities and expenses incurred by them in their capacities as such and insuring the Company, under certain circumstances, in the event that indemnification payments are made by the Company to such directors and officers.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits
Exhibit | Description | Location | |||
4.1 | Amended and Restated Certificate of Incorporation of Tree.com, Inc. | Exhibit 3.1 to the Registrant's Current Report on Form 8-K filed August 25, 2008 | |||
4.2 | Second Amended and Restated By-laws of Tree.com, Inc. | Exhibit 3.2 to the Registrant's Quarterly Report on Form 10-Q filed November 12, 2013 | |||
4.3(a) | Fourth Amended and Restated Tree.com, Inc. 2008 Stock and Annual Incentive Plan | Exhibit 10.6 to the Registrant's Quarterly Report on Form 10-Q filed August 7, 2014 | |||
4.3(b) | Form of Notice of Restricted Stock Unit Award | Exhibit 10.3 to the Registrant's Quarterly Report on Form 10-Q filed May 7, 2014 | |||
4.3(c) | Form of Notice of Restricted Stock Award | Exhibit 10.4 to the Registrant's Quarterly Report on Form 10-Q filed May 7, 2014 | |||
4.3(d) | Form of Notice of Stock Option Award | Exhibit 10.5 to the Registrant's Quarterly Report on Form 10-Q filed May 7, 2014 | |||
5.1 | Opinion of Sheppard, Mullin, Richter & Hampton LLP | Filed herewith | |||
23.1 | Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm | Filed herewith | |||
23.2 | Consent of Sheppard, Mullin, Richter & Hampton LLP | Included in Exhibit 5.1 filed herewith | |||
24.1 | Power of Attorney | Included as part of the signature page to this Registration Statement filed herewith | |||
Item 9. Undertakings.
(a)The undersigned Registrant hereby undertakes:
(1)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 this 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 this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(iii)to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(2)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.
(3)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.
(b)The undersigned Registrant hereby undertakes 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.
(c)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 Securities and Exchange 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
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 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Charlotte, State of North Carolina, on August 7, 2014.
TREE.COM, INC. | ||
By: | /s/ALEXANDER MANDEL | |
Alexander Mandel | ||
Chief Financial Officer | ||
(principal financial officer and duly authorized officer) | ||
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Katharine Pierce as his or her true and lawful attorney-in-fact and agent, with full power of substitution, for him in any and all capacities, to sign: (1) this Registration Statement on Form S-8 under the Securities Act of 1933, as amended (the “Securities Act”), in connection with the registration under the Securities Act of shares of common stock of the Registrant to be issued in connection with the Fourth Amended and Restated Tree.com, Inc. 2008 Stock and Annual Incentive Plan; and (2) any one or more amendments to any part of the foregoing Registration Statement, including any post-effective amendments, or appendices or supplements that may be required to be filed under the Securities Act to keep such Registration Statement effective or to terminate its effectiveness; and/or to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, with full power to act alone, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Name and Signature | Title | Date | ||
/s/ DOUGLAS R. LEBDA | Chairman, Chief Executive Officer and Director (Principal Executive Officer) | August 7, 2014 | ||
Douglas R. Lebda | ||||
/s/ ALEXANDER MANDEL | Chief Financial Officer (Principal Financial Officer) | August 7, 2014 | ||
Alexander Mandel | ||||
/s/ CARLA SHUMATE | Senior Vice President and Chief Accounting Officer (Principal Accounting Officer) | August 7, 2014 | ||
Carla Shumate | ||||
/s/ PETER HORAN | Director | August 7, 2014 | ||
Peter Horan | ||||
/s/ JOSEPH LEVIN | Director | August 7, 2014 | ||
Joseph Levin | ||||
/s/ NEAL DERMER | Director | August 7, 2014 | ||
Neal Dermer | ||||
/s/ STEVEN OZONIAN | Director | August 7, 2014 | ||
Steven Ozonian | ||||
/s/ W. MAC LACKEY | Director | August 7, 2014 | ||
W. Mac Lackey | ||||
/s/ CRAIG TROYER | Director | August 7, 2014 | ||
Craig Troyer | ||||
INDEX TO EXHIBITS
The following documents are filed as exhibits to this Registration Statement:
Exhibit | Description | Location | |||
4.1 | Amended and Restated Certificate of Incorporation of Tree.com, Inc. | Exhibit 3.1 to the Registrant's Current Report on Form 8-K filed August 25, 2008 | |||
4.2 | Second Amended and Restated By-laws of Tree.com, Inc. | Exhibit 3.2 to the Registrant's Quarterly Report on Form 10-Q filed November 12, 2013 | |||
4.3(a) | Fourth Amended and Restated Tree.com, Inc. 2008 Stock and Annual Incentive Plan | Exhibit 10.6 to the Registrant's Quarterly Report on Form 10-Q filed August 7, 2014 | |||
4.3(b) | Form of Notice of Restricted Stock Unit Award | Exhibit 10.3 to the Registrant's Quarterly Report on Form 10-Q filed May 7, 2014 | |||
4.3(c) | Form of Notice of Restricted Stock Award | Exhibit 10.4 to the Registrant's Quarterly Report on Form 10-Q filed May 7, 2014 | |||
4.3(d) | Form of Notice of Stock Option Award | Exhibit 10.5 to the Registrant's Quarterly Report on Form 10-Q filed May 7, 2014 | |||
5.1 | Opinion of Sheppard, Mullin, Richter & Hampton LLP | Filed herewith | |||
23.1 | Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm | Filed herewith | |||
23.2 | Consent of Sheppard, Mullin, Richter & Hampton LLP | Included in Exhibit 5.1 filed herewith | |||
24.1 | Power of Attorney | Included as part of the signature page to this Registration Statement filed herewith | |||
Exhibit 5.1
August 7, 2014
Tree.com, Inc.
11115 Rushmore Drive
Charlotte, NC 28277
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection with the filing by Tree.com, Inc., a Delaware corporation (the “Company”), of a Registration Statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended, with the Securities and Exchange Commission, covering 1,000,000 shares (the “Shares”) of the Company’s common stock, par value $0.01 per share (the “Common Stock”), which may be issued pursuant to the Fourth Amended and Restated Tree.com, Inc. 2008 Stock and Annual Incentive Plan (the “Plan”).
This opinion is being furnished in accordance with the requirements of Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.
In connection with this opinion, we have reviewed and relied upon the Registration Statement, the Company’s Amended and Restated Certificate of Incorporation dated August 20, 2008 and as in effect on the date hereof, the Company’s Second Amended and Restated By-Laws dated November 6, 2013 and as in effect on the date hereof (the “By-Laws”), the proceedings taken by the Company with respect to the authorization and adoption of the Plan, resolutions adopted by the board of directors of the Company, and such other documents, records, certificates, memoranda and other instruments as we deem necessary as a basis for this opinion. With respect to the foregoing documents, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to original of all documents submitted to us as certified or reproduced copies. We have also assumed that either (i) the stock certificates to be issued to represent the Shares (collectively, the “Stock Certificates”) will conform to the specimen common stock certificate submitted to us, and such Stock Certificates will be duly executed by the Company and countersigned by the transfer agent therefor in accordance with Section 158 of the Delaware General Corporation Law (“Section 158”), or (ii) the Shares will be uncertificated in accordance with Section 158 and the By-Laws, and the transfer agent therefor will register the purchaser thereof as the registered owner of any uncertificated Shares on its stock transfer books and records. We have further assumed that (a) shares of the Common Stock currently reserved for issuance under the Plan will remain available for the issuance of the Shares, and (b) neither the Company’s charter documents nor any of the proceedings relating to either the Plan or any of the award agreements relating to the Shares, will be rescinded, amended or otherwise modified prior to the issuance of the Shares. We have also obtained from public officials and officers of the Company certificates or comparable documents as to certain factual matters and, insofar as this opinion is based on matters of fact, we have relied on such certificates and comparable documents without independent investigation. We have made such other investigations as we have deemed relevant and necessary in connection with the opinions hereinafter set forth.
On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when issued and sold in the manner referred to in the Plan and pursuant to the agreements that accompany the Plan, will be legally and validly issued, fully paid and nonassessable.
We consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement.
We express no opinion as to matters governed by any laws other than the Delaware General Corporation Law.
Our opinion is expressly limited to the matters set forth above, and we render no opinion, whether by implication or otherwise, as to any other matters relating to the Company, the Shares, the Plan, the award agreements related to the Shares, or the Registration Statement.
Respectfully submitted,
/s/ SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Tree.com, Inc. of our report dated March 17, 2014 relating to the financial statements, financial statement schedule and the effectiveness of internal control over financial reporting, which appears in Tree.com, Inc.'s 2013 Annual Report on Form 10-K for the year ended December 31, 2013.
/s/ PricewaterhouseCoopers LLP
Charlotte, North Carolina
August 7, 2014