As filed with the Securities and Exchange Commission on July 15,
2022
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LendingTree, Inc.
(Exact Name of Registrant as Specified in Its Charter)
| Delaware |
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26-2414818 |
(State or Other Jurisdiction of
Incorporation or Organization) |
|
(I.R.S. Employer
Identification Number) |
| |
1415 Vantage Park Dr., Suite 700
Charlotte, North Carolina 28203
(704) 541-5351
|
|
| (Address, Including Zip
Code, and Telephone Number, Including Area Code, of Registrant’s
Principal Executive Offices) |
| |
Lisa M. Young, Esq.
General Counsel
LendingTree, Inc.
1415 Vantage Park Dr., Suite 700
Charlotte, North Carolina 28203
(704) 541-5351
|
|
| (Name, Address,
Including Zip Code, and Telephone Number, Including Area Code, of
Agent For Service) |
| |
Copy
to: |
|
| |
Shane Tintle, Esq.
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, New York 10017
(212) 450-4000
|
|
Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of this
registration statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. ☐
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. ☒
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. ☐
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
☐
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall
become effective upon filing with the Commission pursuant to Rule
462(e) under the Securities Act, check the following box.
☒
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the
following box. ☐
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer, a
smaller reporting company, or an emerging growth company. See the
definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule
12b-2 of the Exchange Act.
| Large accelerated filer ☒ |
Accelerated filer ☐ |
| Non-accelerated filer ☐
|
Smaller
reporting company ☐ |
| |
Emerging
growth company ☐ |
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the Securities
Act. ☐
PROSPECTUS
LendingTree, Inc.
Common Stock
Preferred Stock
Debt Securities
Warrants
Subscription Rights
Units
We may from time to time offer and sell any of the securities
described in this prospectus, either individually or in
combination. In addition, any selling stockholders identified in
this prospectus, or any of their transferees, donees, pledgees or
other successors, may offer and sell from time to time shares of
common stock.
This prospectus provides a general description of the securities we
may offer. Each time we or any selling stockholders sell securities
under this prospectus, we will provide specific terms related to
such sales in one or more supplements to this prospectus. We may
also authorize one or more free writing prospectuses to be provided
to you in connection with these offerings.
The prospectus supplement, and any documents incorporated by
reference, may also add, update or change information contained in
this prospectus. Before you invest, you should carefully read this
prospectus, the applicable prospectus supplement, any documents
incorporated by reference and any related free writing prospectus
before buying any of the securities being offered. This prospectus
may not be used to consummate a sale of securities unless
accompanied by the applicable prospectus supplement.
We or any selling stockholders may sell these securities directly,
through underwriters, dealers or agents as designated from time to
time, or through a combination of these methods. If any
underwriters, dealers or agents are involved in the sale of these
securities, the applicable prospectus supplement will set forth the
names of the agents, dealers or underwriters and any applicable
fees, commissions or discounts. We will not receive any proceeds
from the sale of common stock by the selling stockholders.
Our common stock is currently quoted on the Nasdaq Global Select
Market under the ticker symbol “TREE.” The applicable prospectus
supplement will contain information, where applicable, as to any
other listing of the securities covered by the applicable
prospectus supplement. On July 14, 2022, the last reported sale
price per share of our common stock on the Nasdaq Global Select
Market was $41.21.
An investment in our securities involves a high degree of risk. See
the section entitled “Risk Factors” commencing on page 2 of
this prospectus and the discussion of these risks in the sections
entitled “Risk Factors” in our most recent annual report on Form
10-K and in the quarterly reports on Form 10-Q, in each case,
incorporated by reference in this prospectus, as well as in any
applicable prospectus supplement.
We may amend or supplement this prospectus from time to time by
filing amendments or supplements as required. We urge you to read
the entire prospectus, any amendments or supplements, any free
writing prospectuses, and any documents incorporated by reference
carefully before you make your investment decision.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is
July 15, 2022
table of contents
Page
About This Prospectus
This prospectus is part of a registration statement on Form S-3
that we filed with the Securities and Exchange Commission, or the
SEC, using a “shelf” registration process. Under this shelf
registration process, we may from time to time offer and sell,
either individually or in combination, in one or more offerings,
any combination of the securities described in this prospectus.
Each time we offer securities under this prospectus, we will
provide a prospectus supplement that will contain more specific
information about the terms of that offering. We may also authorize
one or more free writing prospectuses to be provided to you that
may contain material information relating to these offerings. The
prospectus supplement and any related free writing prospectus that
we may authorize to be provided to you may also add, update or
change any of the information contained in this prospectus or in
the documents that we have incorporated by reference into this
prospectus.
In addition, selling stockholders may use this shelf registration
statement to sell shares of our common stock from time to time. We
will not receive any proceeds from the sale of shares by any
selling stockholders. The selling stockholders may deliver a
supplement with this prospectus, if required, to update the
information contained in this prospectus. The selling stockholders
may sell their shares of common stock through any means described
in the section entitled “Plan of Distribution” or described in any
accompanying prospectus supplement. As used herein, the term
“selling stockholders” includes the selling stockholders and any of
their transferees, donees, pledgees or other successors.
You should read this prospectus, any applicable prospectus
supplement and any free writing prospectuses we have authorized for
use in connection with a specific offering together with additional
information described under the headings “Cautionary Note Regarding
Forward-Looking Statements,” “Where You Can Find More Information,”
and “Information Incorporated by Reference” below before investing
in any of the securities being offered. The information appearing
in this prospectus, any applicable prospectus supplement or any
free writing prospectus is accurate only as of the date of such
document and any information we have incorporated by reference is
accurate only as of the date of the document incorporated by
reference, regardless of the time of delivery of this prospectus,
any applicable prospectus supplement or any related free writing
prospectus, or any sale of a security. Our business, financial
condition, results of operations and prospects may have changed
since those dates. If there is any inconsistency between the
information in this prospectus and any prospectus supplement, you
should rely on the information contained in that prospectus
supplement. This prospectus may not be used to consummate a sale
of securities unless it is accompanied by a prospectus
supplement.
You should rely only on the information we have provided or
incorporated by reference in this prospectus and any prospectus
supplement. We have not authorized anyone to provide you with
different information. If anyone provides you with different or
inconsistent information, you should not rely on it. We are not
making an offer to sell securities in any jurisdiction where the
offer or sale is not permitted.
This prospectus contains summaries of certain provisions of
documents. All of the summaries are qualified in their entirety by
the actual documents. Copies of some of these documents have been
filed, will be filed or will be incorporated by reference as
exhibits to the registration statement of which this prospectus is
a part, and you may obtain copies of those documents as described
below under the section entitled “Where You Can Find More
Information.”
We further note that the representations, warranties and covenants
made by us in any agreement that is filed as an exhibit to any
document that is incorporated by reference in this prospectus were
made solely for the benefit of the parties to such agreement,
including, in some cases, for the purposes of allocating risk among
the parties to such agreements, and should not be deemed to be a
representation, warranty or covenant to you. Moreover, such
representations, warranties and covenants should not be relied on
as accurately representing the current state of our affairs.
In this prospectus, unless otherwise indicated, “our company,”
“we,” “us,” “LendingTree,” or “our” refer to LendingTree, Inc., a
Delaware corporation, and its consolidated subsidiaries.
Prospectus Summary
This prospectus summary highlights certain information about our
company and other information contained elsewhere in this
prospectus or in documents incorporated by reference. This summary
does not contain all of the information that you should consider
before making an investment decision. You should carefully read the
entire prospectus, any prospectus supplement, including the section
entitled “Risk Factors,” and the documents incorporated by
reference into this prospectus, before making an investment
decision.
OUR
BUSINESS
LendingTree, Inc. (“LendingTree” or the “Company”) is the parent of
LT Intermediate Company, LLC, which holds all of the outstanding
ownership interests of LendingTree, LLC, and LendingTree, LLC owns
several companies.
LendingTree operates what we believe to be the leading online
consumer platform that connects consumers with the choices they
need to be confident in their financial decisions. Our online
consumer platform provides consumers with access to product
offerings from a nationwide network of over 500 partners (which we
refer to as our “Network Partners”), including mortgage loans, home
equity loans, reverse mortgage loans, auto loans, credit cards,
deposit accounts, personal loans, student loans, small business
loans, insurance quotes and other related offerings. In addition,
we offer tools and resources, including free credit scores, that
facilitate comparison shopping for loans, deposit products,
insurance and other offerings. We seek to match consumers with
multiple providers, who can offer them competing quotes for the
product, or products, they are seeking. We also serve as a valued
partner to lenders and other providers seeking an efficient,
scalable and flexible source of customer acquisition with directly
measurable benefits, by matching the consumer inquiries we generate
with these Network Partners.
CORPORATE INFORMATION
Our principal executive offices are located at 1415 Vantage Park
Dr., Suite 700, Charlotte, North Carolina 28203 and our telephone
number at that address is (704) 541-5351. Our corporate website is
www.lendingtree.com and we maintain an investor relations
website at investors.lendingtree.com. Information contained
on any of our websites or that can be accessed through our websites
are not incorporated by reference in, and do not constitute a part
of, this prospectus.
THE
OFFERING
We may offer and sell, from time to time, common stock, preferred
stock, debt securities, warrants, subscription rights or units, in
one or more offerings and in any combination thereof. In addition,
the selling stockholders may sell shares of our common stock. This
prospectus provides you with a general description of the
securities we may offer and the selling stockholders may offer.
Except in the case of certain offers and sales by the selling
stockholders in circumstances described under “Plan of
Distribution,” this prospectus may not be used to offer or sell
securities unless accompanied by a prospectus supplement. We will
not receive any proceeds from the sale of common stock by the
selling stockholders.
LISTING
Our common stock is currently quoted on the Nasdaq Global Select
Market, under the ticker symbol “TREE.”
Risk Factors
An investment in our securities involves a high degree of risk.
Before you make a decision to invest in our securities, you should
consider carefully the risks described in the section entitled
“Risk Factors” contained in the applicable prospectus supplement
and in our most recent annual report on Form 10-K and quarterly
reports on Form 10-Q filed with the SEC, as well as any amendment
or update thereto reflected in subsequent filings with the SEC or
in any current report on Form 8-K and in the other documents that
we file with the SEC from time to time. The risks and uncertainties
described in this prospectus, any applicable prospectus supplement
and the documents incorporated by reference herein are not the only
ones facing us. Additional risks and uncertainties that we do not
presently know about or that we currently believe are not material
may also adversely affect our business. Our business, results of
operations or financial condition could be seriously harmed, and
the trading price of our securities may decline, due to any of
these or other risks.
Cautionary Note Regarding
Forward-Looking Statements
This prospectus and the documents incorporated by reference in this
prospectus contain “forward-looking statements” within the meaning
of Section 27A of the Securities Act of 1933, as amended, which we
refer to as the Securities Act, and Section 21E of the Securities
Exchange Act of 1934, as amended, which we refer to as the Exchange
Act. These forward-looking statements include statements related to
our anticipated financial performance, business prospects and
strategy; anticipated trends and prospects in the various
industries in which our businesses operate; new products, services
and related strategies; and other similar matters. These
forward-looking statements are based on management’s current
expectations and assumptions about future events, which are
inherently subject to uncertainties, risks and changes in
circumstances that are difficult to predict. The use of words such
as “anticipates,” “estimates,” “expects,” “projects,” “intends,”
“plans” and “believes,” among others, generally identify
forward-looking statements.
Actual results could differ materially from those contained in the
forward-looking statements. Factors currently known to management
that could cause actual results to differ materially from those in
forward-looking statements include those factors listed in “Risk
Factors” set forth herein and elsewhere in this prospectus and the
documents incorporated by reference in this prospectus and in other
documents that we file with the SEC from time to time.
Other unknown or unpredictable factors that could also adversely
affect our business, financial condition and results of operations
may arise from time to time. In light of these risks and
uncertainties, the forward-looking statements discussed in this
prospectus and the documents incorporated by reference in this
prospectus may not prove to be accurate and, accordingly, you
should not place undue reliance on these forward-looking
statements, which only reflect the views of LendingTree, Inc.’s
management as of the date hereof or thereof (as applicable). We
undertake no obligation to update or revise forward-looking
statements to reflect changed assumptions, the occurrence of
unanticipated events or changes to future operating results or
expectations, except as required by law.
Use of Proceeds
Except as described in any applicable prospectus supplement, we
currently intend to use the net proceeds from the sale of the
securities offered hereunder, if any, for general corporate
purposes, which may include working capital, capital expenditures,
acquisitions, repurchases of our common stock and refinancing or
repayment of indebtedness.
When specific securities are offered, the prospectus supplement
relating thereto will set forth our intended use of the net
proceeds that we receive from the sale of such securities. Pending
the application of the net proceeds, we may invest the proceeds in
marketable securities and short-term investments.
We will not receive any proceeds from the sale of common stock by
the selling stockholders pursuant to this prospectus.
Description of Capital Stock
The following description of our common stock and preferred stock,
together with the additional information we include in any
prospectus supplement, summarizes the material terms and provisions
of the common stock and preferred stock that we or any selling
stockholders may offer pursuant to this prospectus. While the terms
we have summarized below will apply generally to any future common
stock or preferred stock that we may offer, we will describe the
particular terms of any class or series of these securities in more
detail in the particular prospectus supplement. For the complete
terms of our common stock and preferred stock, please refer to our
current certificate of incorporation, as amended to date, and our
by-laws, as amended to date, which have been filed with the SEC and
are incorporated herein by reference. The terms of these securities
may also be affected by the Delaware General Corporation Law, which
we refer to as the DGCL. The summary below and any update which may
be contained in any prospectus supplement is qualified in its
entirety by reference to our certificate of incorporation, as
amended to date, and our by-laws, as either may be amended from
time to time after the date of this prospectus, but before the date
of any such prospectus supplement.
Our authorized capital stock consists of 50,000,000 shares of
common stock, par value $0.01 per share, and 5,000,000 shares of
preferred stock, par value $0.01 per share. As of July 14, 2022, we
had 12,785,991 shares of common stock outstanding, excluding
treasury shares, and no shares of preferred stock outstanding.
Common Stock
Dividends. Subject to prior dividend rights of the
holders of any preferred shares, holders of shares of our common
stock are entitled to receive dividends when, as and if declared by
our board of directors out of funds legally available for that
purpose.
Voting Rights. Each share of common stock is entitled
to one vote on all matters submitted to a vote of stockholders,
except that holders of common stock are not entitled to vote on any
amendment to our certificate of incorporation that relates solely
to the terms of one or more outstanding series of preferred stock
if the holders of such affected series are entitled, either
separately or together as a class with the holders of one or more
other such series, to vote thereon pursuant to our certificate of
incorporation. Holders of shares of common stock do not have
cumulative voting rights. In other words, a holder of a single
share of our common stock cannot cast more than one vote for each
position to be filled on our board of directors.
Other Rights. In the event of our liquidation,
dissolution or winding up, after the satisfaction in full of the
liquidation preferences of holders of any preferred shares, holders
of shares of our common stock are entitled to ratable distribution
of the remaining assets available for distribution to stockholders.
Shares of common stock are not subject to redemption by operation
of a sinking fund or otherwise. Holders of shares of common stock
are not currently entitled to preemptive rights.
Fully Paid. The issued and outstanding shares of our
common stock are fully paid and non-assessable. This means the full
purchase price for the outstanding shares of common stock has been
paid and the holders of such shares will not be assessed any
additional amounts for such shares. Any additional shares of common
stock that we may issue in the future will also be fully paid and
non-assessable.
Preferred Stock
We are authorized to issue up to 5,000,000 shares of preferred
stock, par value $0.01 per share. Our board of directors, without
further action by the holders of our common stock, may issue shares
of preferred stock. The board of directors is vested with the
authority to fix the designations, preferences and relative,
participating, optional or other special rights, and such
qualifications, limitations or restrictions thereof, including,
without limitation, redemption rights, dividend rights, liquidation
preferences and conversion or exchange rights of any class or
series of preferred stock, and to fix the number of classes or
series of preferred stock, the number of shares constituting any
such class or series and the voting powers for each class or
series.
The authority possessed by our board of directors to issue
preferred stock could potentially be used to discourage attempts by
third parties to obtain control of the company through a merger,
tender offer, proxy contest or otherwise by making such attempts
more difficult or more costly. Our board of directors may issue
preferred stock with voting rights or conversion rights that, if
exercised, could adversely affect the voting power of the holders
of our common stock.
A prospectus supplement relating to a series of preferred stock
will describe terms of that series of preferred stock,
including:
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the designation and stated value of that series; |
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the number of shares of preferred stock we are offering; |
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the initial public offering price at which the shares of
preferred stock will be sold; |
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the dividend rate of that series, the conditions and dates upon
which those dividends will be payable, whether those dividends will
be cumulative or noncumulative, and, if cumulative, the date from
which dividends will accumulate; |
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the process for any auction and remarketing, if any; |
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the relative ranking and preferences of that series as to
dividend rights and rights upon any liquidation, dissolution or
winding up of the affairs of our company; |
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any redemption, repurchase or sinking fund provisions; |
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any conversion or exchange rights of the holder or us; |
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any restrictions on transfer, sale or other assignment; |
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any restrictions on further issuances; |
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whether interests in the preferred stock will be represented by
depositary shares; |
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a discussion of any material United States federal income tax
considerations applicable to the preferred stock; |
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any application for listing of that series on any securities
exchange or market; |
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any limitations on the issuance of any class or series of
preferred stock ranking senior to or on a parity with the series of
preferred stock as to dividend rights and rights upon liquidation,
dissolution or winding up of our affairs; and |
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any other specific terms, preferences, rights or limitations
of, or restrictions on, that series of preferred stock. |
Restrictions on Payment of Dividends
We are incorporated in Delaware and governed by Delaware law.
Delaware law allows a corporation to pay dividends only:
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out of surplus, as determined under Delaware law; or |
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in case there is no such surplus, out of the corporation’s net
profits for the fiscal year in which the dividend is declared
and/or the preceding fiscal year. |
The credit facility we entered into on September 15, 2021, which is
described more fully in the documents incorporated herein by
reference, also contains contractual restrictions on our ability to
pay dividends.
Section 203 of the Delaware General Corporation Law
Section 203 of the DGCL, which we refer to as Section 203,
prohibits certain transactions between a Delaware corporation and
an “interested stockholder.” Generally, an “interested stockholder”
for this purpose is a stockholder who is directly or indirectly a
beneficial owner of 15% or more of the outstanding voting power of
a Delaware corporation. This provision, if applicable, prohibits
certain business combinations between an interested stockholder and
a corporation for a period of three years after the date on which
the stockholder became an interested stockholder, unless: (1) the
transaction which resulted in the stockholder becoming an
interested stockholder is approved by the corporation’s board of
directors before the stockholder became an interested stockholder;
(2) the interested stockholder acquired at least 85% of the voting
power (as calculated pursuant to Section 203) of the corporation in
the transaction in which the stockholder became an interested
stockholder; or (3) the business combination is approved by a
majority of the board of directors and the affirmative vote of the
holders of two-thirds of the outstanding voting stock not owned by
the interested stockholder at or subsequent to the time that the
stockholder became an interested stockholder. These restrictions do
not apply in certain circumstances, including if the corporation’s
certificate of incorporation contains a provision expressly
electing not to be governed by Section 203. If such a provision is
adopted by an amendment to the corporation’s certificate of
incorporation, the amendment will be effective immediately if,
among other requirements, the corporation has never had a class of
voting stock listed on a national securities exchange or held of
record by more than 2,000 stockholders. If this and other
requirements are not satisfied, the amendment will not be effective
until 12 months after its adoption and will not apply to any
business combination between the corporation and any person who
became an interested stockholder on or prior to such adoption.
LendingTree’s certificate of incorporation contains a provision
expressly electing not to be governed by Section 203.
Therefore, in accordance with Section 203, the restrictions on
certain business combinations in Section 203 do not currently
apply in respect of LendingTree.
Anti-takeover Effects of our Certificate of Incorporation and
By-laws and Delaware Law
Some provisions of our certificate of incorporation and by-laws and
certain provisions of Delaware law could make the following more
difficult:
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an acquisition of LendingTree by means of a tender offer; |
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an acquisition of LendingTree by means of a proxy contest or
otherwise; or |
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the removal of our incumbent officers and directors. |
Size of Board and Vacancies
Our certificate of incorporation and by-laws provide that, subject
to the rights of the holders of any series of preferred stock to
elect additional directors under specified circumstances, the
number of directors on our board of directors will be fixed
exclusively by the board of directors. Newly created directorships
resulting from any increase in the authorized number of directors
or any vacancies in the board of directors resulting from death,
resignation, retirement, disqualification, removal from office or
other cause will be filled generally by the majority vote of the
directors then in office, though less than a quorum.
Elimination of Stockholder Action by Written Consent
Our certificate of incorporation and by-laws expressly eliminate
the right of stockholders to act by written consent. Stockholder
action must take place at the annual or a special meeting of our
stockholders.
Stockholder Meetings
Under our certificate of incorporation and by-laws, stockholders
are not entitled to call special meetings of stockholders. Only a
majority of our board of directors or specified individuals may
call such meetings.
Requirements for Advance Notification of Stockholder Nominations
and Proposals
Our by-laws establish advance notice procedures with respect to
stockholder proposals and nomination of candidates for election as
directors other than nominations made by or at the direction of the
board of directors or a committee of the board of directors. In
particular, stockholders must notify the corporate secretary in
writing prior to the meeting at which the matters are to be acted
upon or directors are to be elected. The notice must contain the
information specified in our by-laws. To be timely, the notice must
be received at our principal executive office not later than 60 or
more than 90 days prior to the first anniversary of the date for
the preceding year’s annual meeting of stockholders. However, if
the date of the annual meeting is advanced more than 30 days prior
to or delayed by more than 30 days after the anniversary of the
preceding year’s annual meeting, or if no annual meeting was held
during the preceding year, notice by the stockholder, to be timely,
must be delivered no later than the close of business on the later
of the 90th day prior to such annual meeting or the 10th day
following the day on which public announcement of the date of such
meeting is first made. Moreover, in the event that the number of
directors to be elected to the board of directors is increased and
we make no public announcement naming all of the nominees for
director or specifying the size of the increased board of directors
at least 55 days prior to the first anniversary of the date for the
preceding year’s annual meeting of stockholders, the stockholder’s
notice will be considered timely, but only with respect to nominees
for any new positions created by such increase, if it is delivered
to the corporate secretary at our principal executive offices not
later than the close of business on the 10th day following the day
on which we first made such public announcement.
Undesignated Preferred Stock
The authorization in our certificate of incorporation with respect
to the issuance of undesignated preferred stock makes it possible
for our board of directors to issue preferred stock with voting or
other rights or preferences that could impede the success of any
attempt to change control of the company. The provision in our
certificate of incorporation authorizing such preferred stock may
have the effect of deferring hostile takeovers or delaying changes
of control of our management.
Indemnification Provisions
The following provisions of Delaware law and our certificate of
incorporation and by-laws govern the indemnification of our
directors and officers.
Section 145 of 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.
Our certificate of incorporation provides that no director shall be
liable to us or our 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 prohibits provisions in a Delaware
corporation’s certificate of incorporation that eliminate the
liability of a director for the following:
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any breach of the director’s duty of loyalty to us or our
stockholders; |
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acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; |
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unlawful payments of dividends or unlawful stock purchases or
redemptions as provided in Section 174 of the DGCL; and |
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any transaction from which the director derived an improper
personal benefit. |
Our by-laws provide that, to the fullest extent authorized by the
DGCL, as now in effect or as amended, we 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 our
company, or by reason of the fact that such person, or a person of
whom he or she is the legal representative, is or was serving, at
our 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 us. To the extent authorized by
the DGCL, we 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 our indemnification obligations relating to actions
taken before such amendment.
We maintain a directors’ and officers’ liability insurance policy
insuring our directors and officers against certain liabilities and
expenses incurred by them in their capacities as such and insuring
us, under certain circumstances, in the event that indemnification
payments are made by us to such directors and officers.
Transfer Agent and Registrar
Computershare has been appointed as the transfer agent and
registrar for our common stock.
Description of Debt Securities
We may issue senior debt securities or subordinated debt securities
(any of which may be convertible or not convertible). We use the
term debt securities in this prospectus to refer to both senior
debt securities and subordinated debt securities. No debt
securities will be secured by any of our property or assets or the
property or assets of any of our subsidiaries. No debt securities
will be guaranteed by any of our subsidiaries or any other person
or entity. Thus, by owning a debt security, you will be an
unsecured creditor of LendingTree.
The senior debt securities will be issued under our senior debt
indenture described below and will rank equally with all of our
other unsecured and unsubordinated debt. The subordinated debt
securities will be issued under our subordinated debt indenture
described below and will be subordinate in right of payment to all
of our “senior debt,” as defined in the subordinated debt
indenture, and will rank equally with all of our other general
obligations. We use the term indentures in this prospectus to refer
to both the senior debt indenture and the subordinated debt
indenture. Neither indenture limits our ability to incur additional
unsecured indebtedness, unless otherwise described in the
prospectus supplement relating to any series of debt securities.
The indentures and the debt securities will be governed by New York
law, unless otherwise indicated in the prospectus supplement
applicable to a series of debt securities.
We have summarized some of the material provisions of the
indentures on the following pages. The summary does not purport to
be complete and is subject to, and is qualified in its entirety by
reference to, all provisions of the indentures, including
definitions of various terms contained in the indentures. Copies of
the entire indentures are exhibits to the registration statement of
which this prospectus is a part, and are incorporated herein by
reference. We encourage you to read the full text of the
indentures, which you can obtain as described under the heading
“Where You Can Find More Information” elsewhere in this prospectus.
While the terms we have summarized below will apply generally to
any future debt securities we may offer under this prospectus, the
applicable prospectus supplement or free writing prospectus will
describe the specific terms of any debt securities offered through
that prospectus supplement or free writing prospectus. The terms of
any debt securities we offer under a prospectus supplement or free
writing prospectus may differ from the terms we describe below.
LendingTree is a holding company and a legal entity separate and
distinct from its subsidiaries, through which LendingTree conducts
most of its operations and which generate all of LendingTree’s
operating income and cash flow. As a result, LendingTree’s only
source of funds to meet its obligations to make payments under any
debt securities as well as its other payment obligations is
distributions or advances from LendingTree’s subsidiaries.
Contractual provisions, laws or regulations may limit the ability
of LendingTree to obtain the necessary funds from its subsidiaries
to satisfy its obligations. LendingTree’s rights to participate in
the distribution of assets of its subsidiaries are effectively
subordinate to the claims of creditors, including trade creditors,
of those subsidiaries, except to the extent that LendingTree itself
may be a creditor of a particular subsidiary with recognized
claims. Accordingly, except to the extent that LendingTree itself
may be a creditor of a subsidiary with recognized claims,
LendingTree’s obligations under its debt securities will be
effectively subordinated to all existing and future indebtedness
and liabilities of its subsidiaries.
The
Indentures
The senior debt securities and the subordinated debt securities are
each governed by an agreement called an indenture – the senior debt
indenture, in the case of the senior debt securities, and the
subordinated debt indenture, in the case of the subordinated debt
securities. Each indenture is a contract between us and the trustee
under the indenture. The indentures are substantially identical,
except for the provisions relating to subordination, which are
included only in the subordinated debt indenture.
LendingTree has appointed Wilmington Trust, National Association,
as trustee under each of the indentures. If a different trustee is
appointed in the future, we will identify such trustee in the
prospectus supplement relating to the offering of the applicable
debt securities.
The trustee under each indenture has two principal roles:
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The trustee can enforce the rights of the holders of debt
securities against us if we default on our obligations under the
terms of the indenture or the debt securities. There are some
limitations on the extent to which the trustee acts on behalf of
such holders, described below under the heading “—Events of
Default.” |
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The trustee performs administrative duties for us, such as
sending interest payments and notices to holders of debt
securities, and transferring a holder’s debt securities to a new
buyer if such holder sells such debt securities. |
Reference to the indenture or the trustee with respect to any debt
securities means the indenture under which those debt securities
are issued and the trustee under that indenture.
Conversion or Exchange Rights
We will set forth in the applicable prospectus supplement or free
writing prospectus the terms on which a series of debt securities
may be convertible into or exchangeable for our common stock, our
preferred stock or other securities (including securities of a
third party). We will include provisions as to whether conversion
or exchange is mandatory, at the option of the holder or at our
option. We may include provisions pursuant to which the number of
shares of our common stock, our preferred stock or other securities
(including securities of a third party) that the holders of the
series of debt securities receive would be subject to
adjustment.
Terms
We may issue as many distinct series of debt securities under
either indenture as we wish. The provisions of each indenture allow
us not only to issue debt securities with terms different from
those previously issued under that indenture, but also to “reopen”
a previous issue of a series of debt securities and issue
additional debt securities of that series. We may issue debt
securities in amounts that exceed the total amount specified on the
cover of the prospectus supplement related to debt securities you
hold at any time without your consent and without notifying
you.
This section summarizes the material terms of the debt securities
that are common to all series, although the prospectus supplement
which describes the terms of each series of debt securities may
also describe differences from the material terms summarized
here.
Because this section is a summary, it does not describe every
aspect of the debt securities that may be important to our
investors. This summary is subject to and qualified in its entirety
by reference to all the provisions of the applicable indenture,
including definitions of certain terms used in the indenture, which
are attached as exhibits to this registration statement. In this
summary, we describe the meaning of only some of the more important
terms. Whenever we refer to particular sections or defined terms of
the indenture in this prospectus or in the prospectus supplement,
such sections or defined terms are incorporated by reference here
or in the prospectus supplement. You must look to the indenture for
the most complete description of what we describe in summary form
in this prospectus. Investors are cautioned to review the
indentures carefully and in their entirety because the indentures
(and not this summary) will be the legal document that will govern
the terms of our debt securities issued hereunder.
This summary also is subject to and qualified by reference to the
description of the particular terms of any series described in the
applicable prospectus supplement. Those terms may vary from the
terms described in this prospectus. The prospectus supplement
relating to each series of debt securities will be attached to the
front of this prospectus. There may also be a further prospectus
supplement, known as a pricing supplement or free writing
prospectus, which contains the precise terms of debt securities we
may offer. Investors are encouraged to carefully review any such
prospectus supplement, pricing supplement and/or free writing
prospectus before making an investment decision regarding any of
our debt securities offered hereunder.
We may issue the debt securities as original issue discount
securities, which will be offered and sold at a substantial
discount below their stated principal amount. The prospectus
supplement relating to the original issue discount securities will
describe federal income tax consequences and other special
considerations applicable to them. The debt securities may also be
issued as indexed securities or securities denominated in foreign
currencies or currency units, as described in more detail in the
prospectus supplement relating to any of the particular series of
debt securities.
The prospectus supplement relating to a series of debt securities
will describe the following terms of the series:
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the title of the series of debt securities; |
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whether they are senior debt securities or subordinated debt
securities; |
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any limit on the aggregate principal amount of the series of
debt securities; |
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the person to whom interest on a debt security is payable, if
other than the holder thereof on the regular record date; |
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the specified currency, currencies or currency units for
principal and interest, if not U.S. dollars; |
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the rate or rates, which may be fixed or variable, per annum at
which the series of debt securities will bear interest, if any, and
the date or dates from which that interest, if any, will
accrue; |
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the place or places where the principal of, premium, if any,
and interest on the debt securities will be payable; |
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the denominations in which the debt securities will be
issuable, if other than denominations of $1,000 and any integral
multiple of $1,000; |
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any mandatory or optional sinking funds or similar provisions
or provisions for redemption, including any mandatory redemption
provisions or redemption at the option of the issuer; |
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the date, if any, after which and the price or prices at which
the series of debt securities may, in accordance with any optional
or mandatory redemption provisions, be redeemed and the other
detailed terms and provisions of those optional or mandatory
redemption provisions, if any; |
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any index or formula used to determine the amount of payments
of principal of and any premium and interest on the debt
securities; |
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if the debt securities may be converted into or exchanged for
our common stock, preferred stock or other securities, the terms on
which conversion or exchange may occur, including whether
conversion or exchange is mandatory, at the option of the holder or
at our option, the period during which conversion or exchange may
occur, the initial conversion or exchange rate and the circumstance
or manner in which the amount of common or preferred stock issuable
upon conversion or exchange may be adjusted or calculated according
to the market price of our common stock or preferred stock or such
other securities; |
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if the debt securities are original issue discount debt
securities, the yield to maturity; |
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the applicability of any provisions described under the heading
“—Defeasance and Covenant Defeasance” below; |
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any event of default under the series of debt securities if
different from those described under the heading “—Event of
Default” below; |
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the names and duties of any co-trustees, authenticating agents,
paying agents, transfer agents or registrars for the debt
securities; |
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if the series of debt securities will be issuable only in the
form of a global security, the depositary or its nominee with
respect to the series of debt securities and the circumstances
under which the global security may be registered for transfer or
exchange in the name of a person other than depository or the
nominee; and |
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any other terms of the debt securities, which could be
different from or in addition to those described in this
prospectus. |
Form, Exchange and Transfer
Unless we indicate otherwise in the prospectus supplement, the debt
securities will be issued:
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only in fully registered form; and |
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in denominations of $1,000 and integral multiples of
$1,000. |
Holders may exchange their debt securities for debt securities of
the same series in any authorized denominations, as long as the
total principal amount is not changed.
Holders may exchange or transfer their debt securities at the
office of the trustee. They may also replace lost, stolen or
mutilated debt securities at that office. The trustee acts as our
agent for registering debt securities in the names of the holders
and transferring debt securities.
Holders will not be required to pay a service charge to transfer or
exchange their debt securities, but they may be required to pay for
any tax or other governmental charge associated with the
registration, exchange or transfer. The transfer or exchange, and
any replacement, will be made only if our transfer agent is
satisfied with the holder’s proof of legal ownership. We or the
transfer agent may require an indemnity and/or a bond before
replacing any debt securities.
If a debt security is issued as a global debt security, only the
depositary will be entitled to transfer and exchange the debt
security as described in this subsection, since the depositary will
be the sole holder of the debt security.
If a debt security is issued as a registered global debt security,
only the depositary – such as DTC, Euroclear or Clearstream, each
as defined in the section “Legal Ownership of Securities” below –
will be entitled to transfer and exchange the debt security as
described in this subsection, since the depositary will be the sole
holder of the debt security. Those who own beneficial interests in
a global security do so through participants in the applicable
depositary’s securities clearance system, and the rights of these
indirect owners will be governed solely by the applicable
procedures of the depositary and its participants. We describe
book-entry procedures in the section “Legal Ownership of
Securities” below.
We will not deposit money on a regular basis into any separate
custodial account to repay the debt securities. In addition, we
will not be entitled to redeem a debt security before its stated
maturity unless the prospectus supplement specifies provisions
related to mandatory or optional redemption. You will not be
entitled to require us to buy a debt security from you before its
stated maturity unless the prospectus supplement applicable to the
series of debt securities acquired by you specifies one or more
repayment dates.
If the debt securities are redeemable and we redeem less than all
of the debt securities of a particular series, we may block the
transfer or exchange of debt securities during the period beginning
15 days before the day we mail the notice of redemption and ending
on the day of that mailing, in order to freeze the list of holders
to prepare the mailing. We may also refuse to register transfers or
exchanges of debt securities selected for redemption, except that
we will continue to permit transfers and exchanges of the
unredeemed portion of any debt security being partially
redeemed.
The rules for exchange described above apply to an exchange of debt
securities for other debt securities of the same series and kind.
If a debt security is convertible, or exchangeable into or for a
different kind of security, the terms governing that type of
conversion or exchange will be described in the prospectus
supplement.
Payment and Paying Agents
If interest is due on a debt security on an interest payment date,
we will pay the interest to the person in whose name the debt
security is registered at the close of business on the regular
record date relating to the interest payment date as will be
specified in the applicable prospectus supplement. If interest is
due at maturity but on a day that is not an interest payment date,
we will pay the interest to the person entitled to receive the
principal of the debt security. If principal or another amount
besides interest is due on a debt security at the stated maturity,
we will pay the amount to the holder of the debt security against
surrender of the debt security at a proper place of payment or, in
the case of a global debt security, in accordance with the
applicable policies of the depositary, in each case, on the terms
set forth in the applicable prospectus supplement.
We will make payments on a global security in accordance with the
applicable policies of the applicable depositary as in effect from
time to time. Under those policies, we will make payments directly
to the applicable depositary, or its nominee, and not to any
indirect owners who own beneficial interests in the global
security.
Book-entry and other indirect holders should consult their banks,
brokers or other financial institutions for information on how they
will receive payments.
We will make payments on a debt security in non-global, registered
form as follows. We will pay interest that is due on an interest
payment date by check mailed on the interest payment date to the
holder at his or her address shown on the trustee’s records as of
the close of business on the regular record date. We will make all
other payments by check or wire transfer of immediately available
funds to the paying agent against surrender of the debt
security.
All payments will be made in U.S. dollars unless the prospectus
supplement provides otherwise. If payments are to be made in
currency other than U.S. dollars, such payments for debt security
in non-global, registered form will be made by wire transfer of
immediately available funds to any account that is maintained in
the applicable specified currency at a bank designated by the
holder and which is acceptable to us and the trustee. To designate
an account for wire payment, the holder must give the paying agent
appropriate wire instructions at least five business days before
the requested wire payment is due. If we are obligated to make a
payment in a specified currency other than U.S. dollars, and the
specified currency or any successor currency is not available to us
due to circumstances beyond our control we will be entitled to
satisfy our obligation to make the payment by making the payment in
U.S. dollars, on the basis of the exchange rate determined by the
designated exchange agent, in its discretion.
We may appoint one or more financial institutions to act as our
paying agents, at whose designated offices debt securities in
non-global entry form may be surrendered for payment at their
maturity. We call each of those offices a paying agent. We may add,
replace or terminate paying agents from time to time. We may also
choose to act as our own paying agent. Initially, the appointed
trustee will act as the paying agent.
Regardless of who acts as paying agent, all money paid by us to a
paying agent that remains unclaimed at the end of two years after
the amount is due to a holder will be repaid to us. After that
two-year period, subject to applicable unclaimed property laws, the
holder may, as an unsecured general creditor, look only to us for
payment and not to the trustee, any other paying agent or anyone
else.
Notices
Notices to be given to holders of a global debt security will be
given only to the applicable depositary, in accordance with its
policies as in effect from time to time. Notices to be given to
holders of debt securities not in global form will be sent by mail
to the respective addresses of the holders of such debt securities
as they appear in the trustee’s records. Neither the failure to
give any notice to a particular holder, nor any defect in a notice
given to a particular holder, will affect the sufficiency of any
notice given to another holder.
Mergers and Similar Transactions
Under the terms of the applicable indenture and supplemental
indenture, we will generally be permitted to merge or consolidate
with another entity. We will also generally be permitted to sell
our assets substantially as an entirety to another entity. With
regard to any series of debt securities, however, unless otherwise
indicated in the applicable prospectus supplement, we may not take
any of these actions unless all of the following conditions are
met:
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If the successor entity in the transaction is not us, the
successor entity must be a corporation, partnership, limited
liability company or trust organized under the laws of the United
States, any state in the United States or the District of Columbia
and must expressly assume our obligations under the debt securities
of that series and the indenture and supplemental indenture with
respect to that series. |
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Immediately after giving effect to the transaction, no default
under the debt securities of that series has occurred and is
continuing. For this purpose, “default under the debt securities of
that series” means an event of default with respect to that series
or any event that would be an event of default with respect to that
series if the requirements for giving us a default notice and for
our default having to continue for a specific period of time were
disregarded. |
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We have delivered to the trustee an officers’ certificate and
opinion of counsel, each stating that the transaction complies in
all respects with the indenture. |
If the conditions described above are satisfied with respect to the
debt securities of any series, we will not need to obtain the
approval of the holders of those debt securities in order to merge
or consolidate or to sell our assets. Also, these conditions will
apply only if we wish to merge or consolidate with another entity
or sell our assets substantially as an entirety to another entity.
We will not need to satisfy these conditions if we enter into other
types of transactions, including any transaction in which we
acquire stock or assets of another entity, any transaction that
involves a change of control of us but in which we do not merge or
consolidate and any transaction in which we sell less than
substantially all of our assets.
Defeasance and Covenant Defeasance
Any series of issued debt securities may be subject to the
defeasance and discharge provisions of the applicable indenture.
Under those provisions, the debt securities of any series may
authorize us to elect to:
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defease and to discharge us from any and all obligations with
respect to those debt securities, except for the rights of holders
of those debt securities to receive payments on the securities
solely from the trust fund established pursuant to the applicable
indenture and the obligations to exchange or register the transfer
of the securities, to replace temporary or mutilated, destroyed,
lost or stolen securities, to maintain an office or agency with
respect to the securities and to hold moneys for payment in trust,
which we refer to as a defeasance; or |
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to be released from our obligations with respect to those debt
securities to comply with the restrictive covenants which are
subject to covenant defeasance, and the occurrence of certain
events of default with respect to those restrictive covenants shall
no longer be an event of default, which we refer to as a covenant
defeasance. |
To invoke defeasance or covenant defeasance with respect to any
series of debt securities, we must irrevocably deposit with a
trustee, in trust, money or U.S. government obligations, or both,
which will provide money in an amount sufficient to pay all sums
due on that series.
As a condition to defeasance or covenant defeasance, we must
deliver to the applicable trustee an officers certificate and an
opinion of counsel stating that holders of the applicable debt
securities will not recognize gain or loss for federal income tax
purposes as a result of the defeasance or covenant defeasance and
will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if we
did not elect the defeasance or covenant defeasance. We may
exercise our defeasance option with respect to the securities
notwithstanding our prior exercise of our covenant defeasance
option. If we exercise our defeasance option, payment of the
securities may not be accelerated by the reference to restrictive
covenants which are subject to covenant defeasance. If we do not
comply with our remaining obligations after exercising our covenant
defeasance option and the debt securities are declared due and
payable because of the occurrence of any event of default, the
amount of money and U.S. government obligations on deposit in the
defeasance trust may be insufficient to pay amounts due on the
securities at the time of the acceleration. However, we will remain
liable for those payments.
Modification and Waiver of the Debt Securities
We may change or modify either of the indentures without the
consent of the holders of the debt securities so long as such
changes are limited to clarifications and/or changes that would not
adversely affect the debt securities of that series in any material
respect. We may also make changes that may affect the debt
securities that have yet to be issued under the applicable
indentures without the approval of any holders.
If the proposed change will affect the debt securities of a
particular series then we must obtain approval of the holders of a
majority in principal amount of the debt securities of that series.
If the proposed change will affect the debt securities of more than
one series of debt securities issued under the applicable indenture
then we must obtain approval of the holders of a majority in
principal amount of each series affected by the change.
We may not amend the subordinated debt indenture to alter the
subordination of any outstanding subordinated debt securities
without the written consent of each holder of senior debt then
outstanding who would be adversely affected. In addition, we may
not modify the subordination provisions of the subordinated debt
indenture in a manner that would adversely affect the outstanding
subordinated debt securities of any one or more series in any
material respect, without the approval of the holders of a majority
in aggregate principal amount of all affected series, voting
together as one class.
In each case, the required approval must be given by written
consent.
Book-entry and other indirect holders should consult their banks,
brokers or other financial institutions for information on how
approval may be granted or denied if we seek to change or modify
either indenture or the debt securities or request a waiver.
Subordination Provisions
Holders of subordinated debt securities should recognize that
contractual provisions in the subordinated debt indenture may
prohibit us from making payments on those securities. Subordinated
debt securities are subordinate and junior in right of payment, to
the extent and in the manner stated in the subordinated debt
indenture, to all of our senior debt, as defined in the
subordinated debt indenture, as it may be supplemented from time to
time, including all debt securities we have issued and will issue
under the senior debt indenture.
The subordinated debt indenture defines “senior debt” as the
principal of (and premium, if any) and interest (including interest
accruing on or after the filing of any petition in bankruptcy or
for reorganization relating to us) on all of our indebtedness
(including indebtedness of others guaranteed by us), other than the
subordinated debt securities, whether outstanding on the date of
the indenture or thereafter created, incurred or assumed, which is
(i) for money borrowed, (ii) evidenced by a note or similar
instrument given in connection with the acquisition of any
businesses, properties or assets of any kind or (iii) obligations
of ours as lessee under leases required to be capitalized on the
balance sheet of the lessee under generally accepted accounting
principles or leases of property or assets made as part of any sale
and lease-back transaction to which we are a party, including
amendments, renewals, extensions, modifications and refundings of
any such indebtedness or obligation, unless in any case in the
instrument creating or evidencing any such indebtedness or
obligation or pursuant to which the same is outstanding it is
provided that such indebtedness or obligation is not superior in
right of payment to the subordinated debt securities.
The subordinated debt indenture provides that, unless all principal
of and any premium or interest on the senior debt has been paid in
full, no payment or other distribution may be made in respect of
any subordinated debt securities in the following
circumstances:
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in the event of any insolvency or bankruptcy proceedings, or
any receivership, liquidation, reorganization or other similar
proceeding involving us or our assets; |
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(a) in the event and during the continuation of any default in
the payment of principal, premium or interest on any senior debt
beyond any applicable grace period or if any event of default with
respect to any senior debt of ours has occurred and is continuing,
permitting the holders of that senior debt of ours or a trustee to
accelerate the maturity of that senior debt, unless the event of
default has been cured or waived or ceased to exist and any related
acceleration has been rescinded, or (b) if any judicial proceeding
is pending with respect to a payment default or an event of default
described in clause (a); or |
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in the event that any subordinated debt securities have been
declared due and payable before their stated maturity. |
If the trustee under the subordinated debt indenture or any holders
of the subordinated debt securities receive any payment or
distribution that they know is prohibited under the subordination
provisions, then the trustee or the holders will have to repay that
money to the holders of the senior debt.
Even if the subordination provisions prevent us from making any
payment when due on the subordinated debt securities of any series,
we will be in default on our obligations under that series if we do
not make the payment when due. This means that the trustee under
the subordinated debt indenture and the holders of that series can
take action against us, but they will not receive any money until
the claims of the holders of senior debt have been fully
satisfied.
Events of Default
Unless the applicable prospectus supplement provides otherwise,
when we refer to an event of default with respect to any series of
debt securities, we mean any of the following:
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failure to pay interest on any debt security of that series
within 30 days after its due date; |
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failure to pay the principal of or any premium on any debt
security of that series on the due date; |
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failure to deposit a sinking fund payment with regard to any
debt security of that series on the due date, but only if the
payment is required under the applicable prospectus
supplement; |
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we remain in breach of any covenant we make in the indenture or
the applicable supplemental indenture for the benefit of the
relevant series for 90 days after we receive a written notice of
default stating that we are in breach and requiring us to remedy
the breach. The notice must be sent by the trustee or the holders
of at least a majority in principal amount of the relevant series
of debt securities; or |
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the occurrence of specified bankruptcy, insolvency or
reorganization events. |
An event of default for one series of debt securities does not
necessarily constitute an event of default for any other series.
The trustee may withhold notice to the debt securities holders of
any default, except a payment default, if it considers such action
to be in the holders’ interests.
If the specified bankruptcy, insolvency or reorganization events
occur, the entire principal of all the debt securities of that
series, together with all accrued and unpaid interest, will be due
and payable immediately. If any other event of default occurs and
continues, the trustee, or the holders of at least a majority in
aggregate principal amount of the outstanding debt securities of
the applicable series, may declare the entire principal of all the
debt securities of that series to be due and payable immediately.
If this happens, and if we cure the event of default in the manner
specified in the applicable indenture or supplemental indenture,
the holders of a majority of the aggregate outstanding principal
amount of the debt securities of that series can void the
acceleration of payment.
The indentures provide that the trustee has no obligation to
exercise any of its rights at the direction of any holders of debt
securities, unless the holders offer the trustee reasonable
indemnity. If such holders provide this indemnification to the
trustee, the holders of a majority in principal amount of any
series of debt securities have the right to direct any proceeding,
remedy or power available to the trustee with respect to that
series.
Book-entry and other indirect holders should consult their banks,
brokers or other financial institutions for information on how to
give notice or direction to or make a request of the trustee and to
make or cancel a declaration of acceleration.
We will provide the trustee every year with a written statement of
certain of our officers certifying that to their knowledge we are
in compliance with the applicable indenture and the debt securities
issued under it, or else specifying any default.
The
Trustee
If we offer a series of debt securities, we will identify the
banking or financial institution which will act as trustee under
the applicable indenture in the prospectus supplement for that
offering. If a single banking or financial institution acts as
trustee with respect to both the indentures, and a default occurs
with respect to any series of debt securities, the banking or
financial institution would generally be required to resign as
trustee under one of the indentures within 90 days of the default,
unless the default were cured, duly waived or otherwise eliminated.
We have initially designated Wilmington Trust, National
Association, as the trustee with respect to each of the
indentures.
Governing Law
New York law will govern the indentures and the debt
securities.
Description of Warrants
We may issue warrants for the purchase of shares of common stock,
preferred stock or debt securities in one or more series. We may
issue warrants independently or together with shares of common
stock, preferred stock and/or debt securities, and the warrants may
be attached to or separate from these securities. While the terms
summarized below will apply generally to any warrants that we may
sell, we will describe the particular terms of any series of
warrants in more detail in the applicable prospectus supplement.
The terms of any warrants offered under a prospectus supplement may
differ from the terms described below.
We will file as exhibits to the registration statement of which
this prospectus is a part, or will incorporate by reference from
reports that we file with the SEC, the form of warrant agreement,
including a form of warrant certificate, that describes the terms
of the particular series of warrants we are offering before the
issuance of the related series of warrants. The following summaries
of material provisions of the warrants and the warrant agreements
are subject to, and qualified in their entirety by reference to,
all the provisions of the warrant agreement and warrant certificate
applicable to the particular series of warrants that we may offer
under this prospectus and the accompanying prospectus supplement.
We urge you to read the applicable prospectus supplements related
to the particular series of warrants that we may offer under this
prospectus, as well as any related free writing prospectuses, and
the complete warrant agreements and warrant certificates that
contain the terms of the warrants.
General
You should review the applicable prospectus supplement for the
specific terms of any warrants that may be offered, including the
following:
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the title of the warrants; |
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· |
the aggregate number of the warrants; |
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· |
the price or prices at which the warrants will be issued; |
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in the case of warrants to purchase debt securities, the
designation, aggregate principal amount, denominations and terms of
the debt securities purchasable upon exercise of a warrant to
purchase debt securities and the price at which the debt securities
may be purchased upon exercise; |
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in the case of warrants to purchase common stock or preferred
stock, the number of shares of common stock or preferred stock, as
the case may be, purchasable upon the exercise of one warrant and
the price at which these shares may be purchased upon such
exercise; |
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if applicable, the date on and after which the warrants and the
related securities will be separately transferable; |
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the effect of any merger, consolidation, sale or other
disposition of our business on the warrant agreements and the
warrants; |
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· |
the terms of any rights to redeem or call the warrants; |
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any provisions for changes to or adjustments in the exercise
price or number of securities issuable upon exercise of the
warrants; |
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the date on which the right to exercise the warrants will
commence and the date on which the right will expire; |
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if applicable, the minimum or maximum number of warrants that
may be exercised at any one time; |
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the manner in which the warrant agreements and warrants may be
modified; |
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information relating to book-entry procedures, if any; |
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if applicable, a discussion of material U.S. federal income tax
considerations of holding or exercising the warrants; and |
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any other terms of the warrants, including terms, procedures
and limitations relating to the exchange and exercise of the
warrants. |
Before exercising their warrants, holders of warrants will not have
any of the rights of holders of the securities purchasable upon
such exercise, including:
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in the case of warrants to purchase debt securities, the right
to receive payments of principal of, or premium, if any, or
interest on, the debt securities purchasable upon exercise or to
enforce covenants in the applicable indenture; or |
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in the case of warrants to purchase common stock or preferred
stock, the right to receive dividends, if any, or, payments upon
our liquidation, dissolution or winding up or to exercise voting
rights, if any. |
Exercise of Warrants
Each warrant will entitle the holder to purchase for cash such
principal amount of securities or shares of stock at such exercise
price as shall in each case be set forth in, or be determinable as
set forth in, the prospectus supplement relating to the warrants
offered thereby. Warrants may be exercised at any time up to the
close of business on the expiration date set forth in the
prospectus supplement relating to the warrants offered thereby.
After the close of business on the expiration date, unexercised
warrants will become void.
The warrants may be exercised as set forth in the prospectus
supplement relating to the warrants offered. Upon receipt of
payment and the warrant certificate properly completed and duly
executed at the corporate trust office of the warrant agent or any
other office indicated in the prospectus supplement, we will, as
soon as practicable, forward the securities purchasable upon such
exercise. If less than all of the warrants represented by such
warrant certificate are exercised, a new warrant certificate will
be issued for the remaining warrants.
Enforceability of Rights By Holders of Warrants
Each series of warrants will be issued under a separate warrant
agreement to be entered into between a warrant agent and us. Each
warrant agent will act solely as our agent under the applicable
warrant agreement and will not assume any obligation or
relationship of agency or trust with any holder of any warrant. A
single bank or trust company may act as warrant agent for more than
one issue of warrants. A warrant agent will have no duty or
responsibility in case of any default by us under the applicable
warrant agreement or warrant, including any duty or responsibility
to initiate any proceedings at law or otherwise, or to make any
demand upon us. Any holder of a warrant may, without the consent of
the related warrant agent or the holder of any other warrant,
enforce by appropriate legal action its right to exercise, and
receive the securities purchasable upon exercise of, its
warrants.
Amendments and Supplements to the Warrant Agreements
We may amend or supplement a warrant agreement without the consent
of the holders of the applicable warrants to cure ambiguities in
the warrant agreement, to cure or correct a defective provision in
the warrant agreement, or to provide for other matters under the
warrant agreement that we and the warrant agent deem necessary or
desirable, so long as, in each case, such amendments or supplements
do not materially adversely affect the interests of the holders of
the warrants.
Warrant Adjustments
Unless the applicable prospectus supplement states otherwise, the
exercise price of, and the number of securities covered by, a
warrant to purchase shares of common stock or preferred stock will
be adjusted proportionately if we subdivide or combine common stock
or preferred stock, as applicable. In addition, unless the
prospectus supplement states otherwise, if we, without payment:
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issue capital stock or other securities convertible into or
exchangeable for preferred stock or common stock, or any rights to
subscribe for, purchase or otherwise acquire either class of
capital stock, as a dividend or distribution to holders of our
preferred stock or common stock; |
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pay any cash to holders of our preferred stock or common stock
other than a cash dividend paid out of our current or retained
earnings or other than in accordance with the terms of the
preferred stock; |
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issue any evidence of our indebtedness or rights to subscribe
for or purchase our indebtedness to holders of our preferred stock
or common stock; or |
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issue preferred stock or common stock or additional stock or
other securities or property to holders of our preferred stock or
common stock by way of spinoff, split-up, reclassification,
combination of shares or similar corporate rearrangement, |
then the holders of warrants will be entitled to receive upon
exercise of the warrants, in addition to the securities otherwise
receivable upon exercise of the warrants and without paying any
additional consideration, the amount of stock and other securities
and property those holders would have been entitled to receive had
they held the preferred stock or common stock, as applicable,
issuable under the warrants on the dates on which holders of those
securities received or became entitled to receive the additional
stock and other securities and property.
Except as stated above, the exercise price and number of securities
covered by a preferred stock or common stock warrant, and the
amounts of other securities or property to be received, if any,
upon exercise of those warrants, will not be adjusted or provided
for if we issue those securities or any securities convertible into
or exchangeable for those securities, or securities carrying the
right to purchase those securities or securities convertible into
or exchangeable for those securities.
Holders of preferred stock or common stock warrants may have
additional rights under the following circumstances:
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certain reclassifications, capital reorganizations or changes
of the preferred stock or common stock, as applicable; |
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certain share exchanges, mergers, or similar transactions
involving our company and which result in changes of preferred
stock or common stock, as applicable; or |
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certain sales or dispositions to another entity of all or
substantially all of our property and assets. |
If one of the above transactions occurs and holders of our
preferred stock or common stock are entitled to receive capital
stock, securities or other property with respect to or in exchange
for their securities, the holders of the preferred stock or common
stock warrants then outstanding, as applicable, will be entitled to
receive upon exercise of their warrants the kind and amount of
shares of capital stock and other securities or property that they
would have received upon the applicable transaction if they had
exercised their warrants immediately before the transaction.
Description of Subscription
Rights
The following is a general description of the terms of the
subscription rights we may issue from time to time. Particular
terms of any subscription rights we offer will be described in the
prospectus supplement or free writing prospectus relating to such
subscription rights, and may differ from the terms described
herein.
We may issue subscription rights to purchase our securities. These
subscription rights may be issued independently or together with
any other security offered hereby and may or may not be
transferable by the stockholder receiving the subscription rights
in such offering. In connection with any offering of subscription
rights, we may enter into a standby arrangement with one or more
underwriters or other purchasers pursuant to which the underwriters
or other purchasers may be required to purchase any securities
remaining unsubscribed for after such offering.
The applicable prospectus supplement will describe the specific
terms of any offering of subscription rights for which this
prospectus is being delivered, including the following:
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whether common stock, preferred stock or warrants for those
securities will be offered under the stockholder subscription
rights; |
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· |
the price, if any, for the subscription rights; |
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the exercise price payable for each security upon the exercise
of the subscription rights; |
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the number of subscription rights issued to each
stockholder; |
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the number and terms of the securities which may be purchased
per each subscription right; |
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the extent to which the subscription rights are
transferable; |
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any other terms of the subscription rights, including the
terms, procedures and limitations relating to the exchange and
exercise of the subscription rights; |
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the date on which the right to exercise the subscription rights
shall commence, and the date on which the subscription rights shall
expire; |
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the extent to which the subscription rights may include an
over-subscription privilege with respect to unsubscribed
securities; |
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if appropriate, a discussion of material U.S. federal income
tax considerations; and |
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if applicable, the material terms of any standby underwriting
or purchase arrangement entered into by us in connection with the
offering of subscription rights. |
The description in the applicable prospectus supplement of any
subscription rights we offer will not necessarily be complete and
will be qualified in its entirety by reference to the applicable
subscription rights certificate or subscription rights agreement,
which will be filed with the SEC if we offer subscription
rights.
Description of Units
This section outlines some of the provisions of the units and the
unit agreements. This information may not be complete in all
respects and is qualified entirely by reference to the unit
agreement with respect to the units of any particular series. The
specific terms of any series of units will be described in the
applicable prospectus supplement or free writing prospectus. If so
described in a particular prospectus supplement or free writing
prospectus, the specific terms of any series of units may differ
from the general description of terms presented below.
As specified in the applicable prospectus supplement, we may issue
units consisting of one or more shares of common stock, shares of
preferred stock, debt securities, warrants, subscription rights or
any combination of such securities.
The applicable prospectus supplement will specify the following
terms of any units in respect of which this prospectus is being
delivered:
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· |
the terms of the units and of any of the shares of common
stock, shares of preferred stock, debt securities, warrants or
subscription rights comprising the units, including whether and
under what circumstances the securities comprising the units may be
traded separately; |
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a description of the terms of any unit agreement governing the
units; |
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· |
if appropriate, a discussion of material U.S. federal income
tax considerations; and |
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a description of the provisions for the payment, settlement,
transfer or exchange of the units. |
Legal Ownership of Securities
We can issue securities in registered form or in the form of one or
more global securities. We describe global securities in greater
detail below. We refer to those persons who have securities
registered in their own names on the books that we or any
applicable trustee, depositary or warrant agent maintain for this
purpose as the “holders” of those securities. These persons are the
legal holders of the securities. We refer to those persons who,
indirectly through others, own beneficial interests in securities
that are not registered in their own names as “indirect holders” of
those securities. As we discuss below, indirect holders are not
legal holders and investors in securities issued in book-entry form
or in street name will be indirect holders.
Book-Entry Holders
We may issue securities in book-entry form only, as we will specify
in the applicable prospectus supplement. This means securities may
be represented by one or more global securities registered in the
name of a financial institution that holds them as depositary on
behalf of other financial institutions that participate in the
depositary’s book-entry system. These participating institutions,
which are referred to as participants, in turn, hold beneficial
interests in the securities on behalf of themselves or their
customers.
Only the person in whose name a security is registered is
recognized as the holder of that security. Securities issued in
global form will be registered in the name of the depositary or its
participants. Consequently, for securities issued in global form,
we will recognize only the depositary as the holder of the
securities, and we will make all payments on the securities to the
depositary. The depositary passes along the payments it receives to
its participants, which in turn pass the payments along to their
customers who are the beneficial owners. The depositary and its
participants do so under agreements they have made with one another
or with their customers; they are not obligated to do so under the
terms of the securities.
As a result, investors in a book-entry security will not own
securities directly. Instead, they will own beneficial interests in
a global security, through a bank, broker or other financial
institution that participates in the depositary’s book-entry system
or holds an interest through a participant. As long as the
securities are issued in global form, investors will be indirect
holders, and not holders, of the securities.
Street Name Holders
We may terminate a global security or issue securities in
non-global form. In these cases, investors may choose to hold their
securities in their own names or in “street name.” Securities held
by an investor in street name would be registered in the name of a
bank, broker or other financial institution that the investor
chooses, and the investor would hold only a beneficial interest in
those securities through an account he or she maintains at that
institution.
For securities held in street name, we will recognize only the
intermediary banks, brokers and other financial institutions in
whose names the securities are registered as the holders of those
securities, and we will make all payments on those securities to
them. These institutions pass along the payments they receive to
their customers who are the beneficial owners, but only because
they agree to do so in their customer agreements or because they
are legally required to do so. Investors who hold securities in
street name will be indirect holders, not holders, of those
securities.
Legal Holders
Our obligations, as well as the obligations of any applicable
trustee and of any third parties employed by us or a trustee, run
only to the legal holders of the securities. We do not have
obligations to investors who hold beneficial interests in global
securities, in street name or by any other indirect means. This
will be the case whether an investor chooses to be an indirect
holder of a security or has no choice because we are issuing the
securities only in global form.
For example, once we make a payment or give a notice to the holder,
we have no further responsibility for the payment or notice even if
that holder is required, under agreements with depositary
participants or customers or by law, to pass it along to the
indirect holders but does not do so. Similarly, we may want to
obtain the approval of the holders to amend an indenture, to
relieve us of the consequences of a default or of our obligation to
comply with a particular provision of the indenture or for other
purposes. In such an event, we would seek approval only from
the
holders, and not the indirect holders, of the securities. Whether
and how the holders contact the indirect holders is up to the
holders.
Special Considerations for Indirect Holders
If you hold securities through a bank, broker or other financial
institution, either in book-entry form or in street name, you
should check with your own institution to find out:
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how it handles securities payment and notices; |
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whether it imposes fees or charges; |
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how it would handle a request for the holders’ consents, if
ever required; |
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whether and how you can instruct it to send your securities
registered in your own name so you can be a registered holder; |
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how it would exercise rights under the securities if there were
a default or other event triggering the need for holders to act to
protect their interests; and |
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if the securities are in book-entry form, how the depositary’s
rules and procedures will affect these matters. |
Global Securities
A global security is a security that represents one or any other
number of individual securities held by a depositary. Generally,
all securities represented by the same global securities will have
the same terms.
Each security issued in book-entry form will be represented by a
global security that we deposit with and register in the name of a
financial institution or its nominee that we select. The financial
institution that we select for this purpose is called the
depositary. Unless we specify otherwise in the applicable
prospectus supplement, The Depository Trust Company, New York, New
York, which we refer to as DTC, will be the depositary for all
securities issued in book-entry form.
A global security may not be transferred to or registered in the
name of anyone other than the depositary, its nominee or a
successor depositary, unless special termination situations arise.
We describe those situations below under “Special Situations When a
Global Security Will Be Terminated.” As a result of these
arrangements, the depositary, or its nominee, will be the sole
registered owner and holder of all securities represented by a
global security, and investors will be permitted to own only
beneficial interests in a global security. Beneficial interests
must be held by means of an account with a broker, bank or other
financial institution that in turn has an account with the
depositary or with another institution that does. Thus, an investor
whose security is represented by a global security will not be a
holder of the security, but only an indirect holder of a beneficial
interest in the global security.
If the prospectus supplement for a particular security indicates
that the security will be issued in global form only, then the
security will be represented by a global security at all times
unless and until the global security is terminated. If termination
occurs, we may issue the securities through another book-entry
clearing system or decide that the securities may no longer be held
through any book-entry clearing system.
Special Considerations for Global Securities
As an indirect holder, an investor’s rights relating to a global
security will be governed by the account rules of the investor’s
financial institution and of the depositary, as well as general
laws relating to securities transfers. We do not recognize an
indirect holder as a holder of securities and instead deal only
with the depositary that holds the global security.
If securities are issued only in the form of a global security, an
investor should be aware of the following:
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an investor cannot cause the securities to be registered in his
or her name, and cannot obtain non-global certificates for his or
her interest in the securities, except in the special situations we
describe below; |
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an investor will be an indirect holder and must look to his or
her own bank or broker for payments on the securities and
protection of his or her legal rights relating to the securities,
as we describe above; |
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an investor may not be able to sell interests in the securities
to some insurance companies and to other institutions that are
required by law to own their securities in non-book-entry
form; |
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an investor may not be able to pledge his or her interest in a
global security in circumstances where certificates representing
the securities must be delivered to the lender or other beneficiary
of the pledge in order for the pledge to be effective; |
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the depositary’s policies, which may change from time to time,
will govern payments, transfers, exchanges and other matters
relating to an investor’s interest in a global security. We and any
applicable trustee have no responsibility for any aspect of the
depositary’s actions or for its records of ownership interests in a
global security. We and the trustee also do not supervise the
depositary in any way; |
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the depositary may, and we understand that DTC will, require
that those who purchase and sell interests in a global security
within its book-entry system use immediately available funds, and
your broker or bank may require you to do so as well; and |
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financial institutions that participate in the depositary’s
book-entry system, and through which an investor holds its interest
in a global security, may also have their own policies affecting
payments, notices and other matters relating to the
securities. |
There may be more than one financial intermediary in the chain of
ownership for an investor. We do not monitor and are not
responsible for the actions of any of those intermediaries.
Special Situations When a Global Security Will Be Terminated
In a few special situations described below, the global security
will terminate and interests in it will be exchanged for physical
certificates representing those interests. After that exchange, the
choice of whether to hold securities directly or in street name
will be up to the investor. Investors must consult their own banks
or brokers to find out how to have their interests in securities
transferred to their own name, so that they will be direct holders.
We have described the rights of holders and street name investors
above.
A global security will terminate when the following special
situations occur:
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if the depositary notifies us that it is unwilling, unable or
no longer qualified to continue as depositary for that global
security and we do not appoint another institution to act as
depositary within 90 days; |
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if we notify any applicable trustee that we wish to terminate
that global security; or |
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if an event of default has occurred with regard to securities
represented by that global security and has not been cured or
waived. |
The applicable prospectus supplement may also list additional
situations for terminating a global security that would apply only
to the particular series of securities covered by the prospectus
supplement. When a global security terminates, the depositary, and
not we or any applicable trustee, is responsible for deciding the
names of the institutions that will be the initial direct
holders.
Selling Stockholders
This prospectus also relates to the possible sale from time to time
of shares of our common stock by certain of our stockholders, who
we refer to in this prospectus as the “selling stockholders.”
Information about the selling stockholders will be set forth in an
applicable prospectus supplement. The selling stockholders may from
time to time offer and sell such securities pursuant to this
prospectus and any applicable prospectus supplement.
The selling stockholders shall not sell any shares of our common
stock pursuant to this prospectus until we have identified such
selling stockholders and the shares of our common stock which may
be offered for resale by such selling stockholders in a subsequent
prospectus supplement. However, the selling stockholders may sell
or transfer all or a portion of their shares of our common stock
pursuant to any available exemption from the registration
requirements of the Securities Act.
Plan of Distribution
We or any selling stockholders may sell our securities in any one
or more of the following ways:
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to or through underwriters, brokers or dealers (acting as agent
or principal); |
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directly to one or more other purchasers; |
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upon the exercise of rights distributed or issued to our
security holders; |
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through a block trade in which the broker or dealer engaged to
handle the block trade will attempt to sell the securities as
agent, but may position and resell a portion of the block as
principal to facilitate the transaction; |
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in “at the market” offerings within the meaning of Rule
415(a)(4) under the Securities Act or through a market maker or
into an existing market, on an exchange, or otherwise; |
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directly to purchasers, through a specific bidding or auction
process, on a negotiated basis or otherwise; |
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through agents on a best-efforts basis; |
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through any other method permitted pursuant to applicable law;
or |
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otherwise through a combination of any of the above methods of
sale. |
Sales of securities may be effected from time to time in one or
more transactions, including negotiated transactions:
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at a fixed price or prices, which may be changed; |
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at market prices prevailing at the time of sale; |
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at prices related to prevailing market prices; |
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at varying prices determined at the time of sale; or |
In addition, we or any selling stockholders may enter into option,
share lending or other types of transactions that require us or any
such selling stockholders, as applicable, to deliver shares of
common stock to an underwriter, broker or dealer, who will then
resell or transfer the shares of common stock under this
prospectus. We or any selling stockholders may also enter into
hedging transactions with respect to our securities or the
securities of any such selling stockholders, as applicable. For
example, we or the selling stockholders may enter into option or
other types of transactions that require us or any selling
stockholders, as applicable, to deliver shares of common stock to
an underwriter, broker or dealer, who will then resell or transfer
the shares of common stock under this prospectus; or loan or pledge
the shares of common stock to an underwriter, broker or dealer, who
may sell the loaned shares or, in the event of default, sell the
pledged shares.
Any selling stockholder will act independently of us in making
decisions with respect to the timing, manner and size of each sale
of shares of common stock covered by this prospectus.
We or any selling stockholders may enter into derivative
transactions with third parties, or sell securities not covered by
this prospectus to third parties in privately negotiated
transactions. If the applicable prospectus supplement so indicates,
in connection with those derivatives, the third parties may sell
securities covered by this prospectus and the applicable prospectus
supplement, including in short sale transactions. If so, the third
party may use securities pledged by us or any such selling
stockholders, as applicable, or borrowed from us, any such selling
stockholders or others to settle those sales or to close out any
related open borrowings of stock, and may use securities received
from us or any selling stockholders in settlement of those
derivatives to close out any related open borrowings of stock. The
third party in such sale transactions will be an underwriter and,
if not identified in
this prospectus, will be identified in the applicable prospectus
supplement (or a post-effective amendment of the registration
statement of which this prospectus is a part). In addition, we or
any selling stockholders may otherwise loan or pledge securities to
a financial institution or other third party that in turn may sell
the securities short using this prospectus. Such financial
institution or other third party may transfer its economic short
position to investors in our securities or the securities of any
such selling stockholders, as applicable, or in connection with a
concurrent offering of other securities.
Shares of common stock may also be exchanged for satisfaction of
any selling stockholders’ obligations or other liabilities to their
creditors. Such transactions may or may not involve brokers or
dealers.
If we or any selling stockholders use any underwriter, the
prospectus supplement will name any underwriter involved in the
offer and sale of the securities. If underwriters or dealers are
used in the sale, the securities will be acquired by the
underwriters or dealers for their own account. The prospectus
supplement will also set forth the terms of the offering,
including:
|
· |
the purchase price of the securities and the proceeds we or any
selling stockholders, as applicable, will receive from the sale of
the securities; |
|
· |
any underwriting discounts and other items constituting
underwriters’ compensation; |
|
· |
any public offering or purchase price and any discounts or
commissions allowed or re-allowed or paid to dealers; |
|
· |
any commissions allowed or paid to agents; |
|
· |
any securities exchanges on which the securities may be
listed; |
|
· |
the method of distribution of the securities; |
|
· |
the terms of any agreement, arrangement or understanding
entered into with the underwriters, brokers or dealers; and |
|
· |
any other information we think is important. |
The securities may be offered to the public either through
underwriting syndicates represented by one or more managing
underwriters or directly by one or more of such firms. Unless
otherwise set forth in the prospectus supplement, the obligations
of underwriters or dealers to purchase the securities offered will
be subject to certain conditions precedent and the underwriters or
dealers will be obligated to purchase all of the offered securities
if any are purchased. Any public offering price and any discount or
concession allowed or reallowed or paid by underwriters or dealers
to other dealers may be changed from time to time.
Any shares of common stock owned by any selling stockholders and
covered by this prospectus may be sold pursuant to Rule 144 under
the Securities Act rather than pursuant to this prospectus, to the
extent such stock may be sold under Rule 144.
The securities may be sold directly by us or any selling
stockholders or through agents designated by us or any such selling
stockholders, as applicable, from time to time. Any agent involved
in the offer or sale of the securities in respect of which this
prospectus is delivered will be named, and any commissions payable
by us or any such selling stockholders, as applicable, to such
agent will be set forth in, the prospectus supplement. Unless
otherwise indicated in the prospectus supplement, any such agent
will be acting on a best efforts basis for the period of its
appointment.
Offers to purchase the securities offered by this prospectus may be
solicited, and sales of the securities may be made by us or by any
selling stockholders, directly to institutional investors or
others, who may be deemed to be underwriters within the meaning of
the Securities Act with respect to any resale of the securities.
The terms of any offer made in this manner will be included in the
prospectus supplement relating to the offer. If indicated in the
applicable prospectus supplement, underwriters, dealers or agents
will be authorized to solicit offers by certain institutional
investors to purchase securities from us pursuant to contracts
providing for payment and delivery at a future date on the terms
set forth in the applicable prospectus supplement.
Selling stockholders and broker-dealers or agents involved in an
arrangement to sell any of the offered securities may, under
certain circumstances, be deemed to be “underwriters” within the
meaning of the Securities Act. Any profit on such sales and any
discount, commission, concession or other compensation received by
any such underwriter, broker-dealer or agent may be deemed an
underwriting discount and commission under the Exchange Act. Except
as indicated in the applicable prospectus supplement, any selling
stockholders and/or purchasers will pay all discounts, concessions,
commissions and similar selling expenses, if any, that can be
attributed to the sale of the shares of such common stock.
Some of the underwriters, dealers or agents used by us or any
selling stockholders in any offering of securities under this
prospectus may be customers of, engage in transactions with, and
perform services for us or any such selling stockholders, as
applicable, or affiliates of ours or theirs, as applicable, in the
ordinary course of business. Underwriters, dealers, agents and
other persons may be entitled under agreements which may be entered
into with us or any selling stockholders to indemnification against
and contribution toward certain civil liabilities, including
liabilities under the Securities Act, and to be reimbursed by us or
any such selling stockholders for certain expenses.
Any securities initially sold outside the U.S. may be resold in the
U.S. through underwriters, dealers or otherwise.
The anticipated date of delivery of the securities offered by this
prospectus will be described in the applicable prospectus
supplement relating to the offering.
In compliance with the guidelines of the Financial Industry
Regulatory Authority, or FINRA, the aggregate maximum discount,
commission, agency fees or other items constituting underwriting
compensation to be received by any FINRA member or independent
broker-dealer will not exceed such amounts as is determined to be
unfair or unreasonable under applicable FINRA rules.
No FINRA member may participate in any offering of securities made
under this prospectus if such member has a conflict of interest
under FINRA Rule 5121 unless a qualified independent underwriter
has participated in the offering or the offering otherwise complies
with FINRA Rule 5121.
To comply with the securities laws of some states, if applicable,
the securities that may be offered pursuant to this prospectus may
be sold in these jurisdictions only through registered or licensed
brokers or dealers. In addition, in some states the securities may
not be sold unless they have been registered or qualified for sale
or an exemption from registration or qualification requirements is
available and is complied with.
All securities we may offer pursuant to this prospectus, other than
common stock, will be new issues of securities with no established
trading market. Any underwriters may make a market in these
securities, but will not be obligated to do so and may discontinue
any market making at any time without notice. We cannot guarantee
the liquidity of the trading markets for any securities.
Any underwriter may engage in over-allotment, stabilizing
transactions, short-covering transactions and penalty bids in
accordance with Regulation M under the Exchange Act. Over-allotment
involves sales in excess of the offering size, which create a short
position. Stabilizing transactions permit bids to purchase the
underlying security so long as the stabilizing bids do not exceed a
specified maximum price. Syndicate-covering or other short-covering
transactions involve purchases of the securities, either through
exercise of the over-allotment option or in the open market after
the distribution is completed, to cover short positions. Penalty
bids permit the underwriters to reclaim a selling concession from a
dealer when the securities originally sold by the dealer are
purchased in a stabilizing or covering transaction to cover short
positions. Those activities may cause the price of the securities
to be higher than it would otherwise be. If commenced, the
underwriters may discontinue any of the activities at any time.
Any underwriters or agents that are qualified market makers may
engage in passive market making transactions in the common stock in
accordance with Regulation M under the Exchange Act, during the
business day prior to the pricing of the offering, before the
commencement of offers or sales of our common stock. Passive market
makers must comply with applicable volume and price limitations and
must be identified as passive market makers. In general, a passive
market maker must display its bid at a price not in excess of the
highest independent bid for such security; if all independent bids
are lowered below the passive market maker’s bid, however, the
passive market maker’s bid must then be lowered when certain
purchase limits are exceeded. Passive market making may stabilize
the market price of the securities at a level above that which
might otherwise prevail in the open market and, if commenced, may
be discontinued at any time.
Legal Matters
The validity of the securities offered hereby will be passed upon
for us by Davis Polk & Wardwell LLP, New York, New York.
Additional legal matters may be passed upon for us or any
underwriters, dealers or agents by counsel that we will name in the
applicable prospectus supplement.
Experts
The financial statements and management’s assessment of the
effectiveness of internal control over financial reporting (which
is included in Management’s Report on Internal Control over
Financial Reporting) incorporated in this prospectus by reference
to the Annual Report on Form 10-K for the year ended December 31,
2021, have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, an independent registered public
accounting firm, given on the authority of said firm as experts in
auditing and accounting.
Where You Can Find More
Information
This prospectus is part of the registration statement on Form S-3
we filed with the SEC under the Securities Act and does not contain
all of the information set forth in the registration statement.
Whenever a reference is made in this prospectus to any of our
contracts, agreements or other documents, the reference may not be
complete and you should refer to the exhibits that are a part of
the registration statement or the exhibits to the reports or other
documents incorporated by reference into this prospectus for a copy
of such contract, agreement or other document. Because we are
subject to the information and reporting requirements of the
Exchange Act, we file annual, quarterly and current reports, proxy
statements and other information with the SEC. Our SEC filings are
available to the public over the Internet at the SEC’s website at
http://www.sec.gov.
Information Incorporated by
Reference
The SEC allows us to “incorporate by reference” information from
other documents that we file with it, which means that we can
disclose important information to you by referring you to those
documents. The information incorporated by reference is considered
to be part of this prospectus. Information in this prospectus
supersedes information incorporated by reference that we filed with
the SEC prior to the date of this prospectus, while information
that we file later with the SEC will automatically update and
supersede the information in this prospectus. We incorporate by
reference into this prospectus and the registration statement of
which this prospectus is a part the information or documents listed
below that we have filed with the SEC (Commission File No.
001-34063):
|
· |
our Annual Report on Form 10-K for the year ended December 31,
2021, filed with the SEC on March 1, 2022; |
|
· |
our Quarterly Report on Form 10-Q for the quarter ended March
31, 2022, filed with the SEC on May 5, 2022; |
|
· |
our Current Reports on Form 8-K filed with the SEC on January
19, 2022, April 28, 2022, May 6, 2022 and June 27, 2022; |
|
· |
the information incorporated by reference into our Annual
Report on Form 10-K for the year ended December 31, 2021 from our
Proxy Statement on Schedule 14A for our 2022 Annual Meeting of
Stockholders, filed with the SEC on April 28, 2022; and |
|
· |
the description of our common stock in our registration
statement on Form 8-A filed with the SEC on August 5, 2008,
including any amendment or report filed for the purpose of updating
such description. |
We also incorporate by reference any future filings (other than
Current Reports on Form 8-K furnished under Item 2.02 or Item 7.01
of Form 8-K and exhibits filed on such form that are related to
such items unless such Form 8-K expressly provides to the contrary)
made with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act, until we file a post-effective amendment that
indicates the termination of the offering of the
securities made by this prospectus and will become a part of this
prospectus from the date that such documents are filed with the
SEC. Information in such future filings updates and supplements the
information provided in this prospectus. Any statements in any such
future filings will automatically be deemed to modify and supersede
any information in any document we previously filed with the SEC
that is incorporated or deemed to be incorporated herein by
reference to the extent that statements in the later filed document
modify or replace such earlier statements.
We will furnish without charge to you (and any beneficial owner),
on written or oral request, a copy of any or all of the documents
incorporated by reference, including exhibits to these documents.
You should direct any requests for documents to:
LendingTree, Inc.
1415 Vantage Park Dr., Suite
700
Charlotte, North Carolina
28203
Attn: Corporate
Secretary
(704) 541-5351
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated fees and expenses,
other than underwriting discounts and commissions, expected to be
incurred in connection with the offering or offerings described in
this registration statement.
|
Item
|
Amount
|
| Securities and Exchange Commission registration fee |
* |
| Legal fees and expenses |
** |
| FINRA filing fees |
** |
| Accounting fees and expenses |
** |
| Transfer agent and registrar fees and expenses |
** |
| Printing fees and expenses |
** |
| Miscellaneous |
**
|
| Total |
**
|
|
* |
To be deferred pursuant to Rule 456(b) under the Securities Act
and calculated in connection with the offering of securities under
this registration statement pursuant to Rule 457(r) under the
Securities Act, except for the registration fees applied in
accordance with Rule 457(p) under the Securities Act, as
applicable. |
|
** |
Estimated expenses are not presently known. An estimate of the
aggregate expenses in connection with the sale and distribution of
the securities being offered will be included in the applicable
prospectus supplement. |
Item
15. 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 Amended and Restated Certificate of Incorporation of
LendingTree, Inc. (the “Company”) 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 purchases 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 Fourth 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 that 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
16. Exhibits.
EXHIBIT INDEX
|
* |
To be filed by amendment hereto or as an exhibit to a report
filed pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 and incorporated herein by reference, if
applicable. |
Item
17. 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 of 1933; |
|
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. 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 SEC pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than 20% 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 the registration statement
or any material change to such information in the registration
statement; |
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and
(a)(1)(iii) 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 Securities and Exchange
Commission by the registrant pursuant to section 13 or section
15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the registration
statement.
|
2. |
That, for the purpose of determining any liability under the
Securities Act of 1933, 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. |
|
4. |
That, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser: |
|
i. |
Each prospectus filed by the registrant pursuant to Rule
424(b)(3) shall be deemed to be part of the registration statement
as of the date the filed prospectus was deemed part of and included
in the registration statement; and |
|
ii. |
Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5), or (b)(7) as part of a registration statement in
reliance on Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii), or (x) for the purpose of providing the
information required by section 10(a) of the Securities Act of 1933
shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which
that prospectus relates, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof; provided, however, that no
statement made in a registration statement or prospectus that is
part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date. |
|
5. |
That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in the
initial distribution of the securities, the undersigned registrant
undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the
undersigned registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such
purchaser: |
|
i. |
Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant
to Rule 424; |
|
ii. |
Any free writing prospectus relating to the offering prepared
by or on behalf of the undersigned registrant or used or referred
to by the undersigned registrant; |
|
iii. |
The portion of any other free writing prospectus relating to
the offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and |
|
iv. |
Any other communication that is an offer in the offering made
by the undersigned registrant to the purchaser. |
|
b. |
The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each
filing of the registrant’s annual report pursuant to section 13(a)
or section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934)
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 of 1933 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 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 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-3 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 July 15, 2022.
| |
LendingTree, Inc. |
|
| |
|
|
| |
|
|
| |
By: |
/s/ Trent
Ziegler |
|
| |
|
Trent Ziegler |
|
| |
|
Chief Financial Officer |
|
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Trent Ziegler and Lisa M. Young, or either of them, as his
or her true and lawful attorney-in-fact and agent, with full power
of substitution and resubstitution, for him or her in any and all
capacities, to sign any and all amendments to this registration
statement, including post-effective amendments or any abbreviated
registration statement and any amendments thereto filed pursuant to
Rule 462(b) and Rule 462(e) and 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 or she might or could do
in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his or her or their substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed by the
following persons in their capacities and on the date
indicated.
|
Signature
|
Title
|
Date
|
| |
|
|
| /s/ Douglas R.
Lebda |
Chairman, Chief Executive Officer and Director (Principal Executive
Officer) |
July 15, 2022 |
| Douglas R. Lebda |
|
| |
|
|
| /s/ Trent Ziegler |
Chief Financial Officer (Principal Financial Officer)
|
July 15, 2022 |
| Trent Ziegler |
|
| |
|
|
| /s/ Carla Shumate |
Senior Vice President and Chief Accounting Officer (Principal
Accounting Officer)
|
July 15, 2022 |
| Carla Shumate |
|
| |
|
|
| /s/ Gabriel
Dalporto |
Director |
July 15, 2022 |
| Gabriel Dalporto |
|
|
| |
|
|
| /s/ Thomas M. Davidson,
Jr. |
Director |
July 15, 2022 |
| Thomas M. Davidson, Jr. |
|
|
| |
|
|
| /s/ Mark
Ernst |
Director |
July 15, 2022 |
| Mark Ernst |
|
|
| |
|
|
| /s/ Robin Henderson |
Director |
July 15, 2022 |
| Robin Henderson |
|
|
| |
|
|
| /s/ Steven Ozonian |
Director |
July 15, 2022 |
| Steven Ozonian |
|
|
| |
|
|
| /s/ Diego Rodriguez |
Director |
July 15, 2022 |
| Diego Rodriguez |
|
|
| |
|
|
| /s/ Saras
Sarasvathy |
Director |
July 15, 2022 |
| Saras Sarasvathy |
|
|
| |
|
|
| /s/ G. Kennedy
Thompson |
Director |
July 15, 2022 |
| G. Kennedy Thompson |
|
|
| |
|
|
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