Exhibit 10.2


 


TAX SHARING AGREEMENT


 


by and among


 


IAC/INTERACTIVECORP,


 


TICKETMASTER,


 


INTERVAL LEISURE GROUP, INC.,


 


HSN, INC.


 


and


 


TREE.COM, INC.


 


Dated as of

August 20, 2008


 

















 


TAX
SHARING AGREEMENT


 


This
TAX SHARING AGREEMENT (this “Agreement”), dated as of August 20,
2008, by and among IAC/InterActiveCorp, a Delaware corporation (“Parent”),
Ticketmaster, a Delaware corporation and a wholly-owned subsidiary of Parent (“Ticketmaster
Spinco”), Interval Leisure Group, Inc., a Delaware corporation and a wholly-owned
subsidiary of Parent (“Interval Spinco”), HSN, Inc., a Delaware
corporation and a wholly-owned subsidiary of Parent (“HSN Spinco”), and
Tree.com, Inc., a Delaware corporation and a wholly-owned subsidiary of
Parent (“Tree Spinco”, together with Ticketmaster Spinco, Interval
Spinco, and HSN Spinco, the “Spincos”, and each of the Spincos, a “Spinco”).  Each of Parent, Ticketmaster Spinco, Interval
Spinco, HSN Spinco and Tree Spinco is sometimes referred to herein as a “Party”
and collectively, as the “Parties”.


 


W  I  T  N  E  S  S  E  T  H


 


WHEREAS,
the Parties have entered into a Separation and Distribution Agreement, dated as
of August 20, 2008 (the “Separation Agreement”), providing for the
restructuring of Parent and its subsidiaries into the Parent Group, the
Ticketmaster Spinco Group, the Interval Spinco Group, the HSN Spinco Group, and
the Tree Spinco Group (each as defined herein);


 


WHEREAS,
pursuant to the terms of the Separation Agreement, Parent and its subsidiaries
will consummate a series of internal restructuring steps (the “Internal
Restructuring Steps”) described in the Transactions Memo;


 


WHEREAS,
for federal income tax purposes, it is intended that the Internal Distributions
(as defined herein) shall qualify as tax-free transactions under Sections 355(a) and/or
368(a)(1)(D) of the Code;


 


WHEREAS,
pursuant to the terms of the Separation Agreement, the Parties will effect the
Distributions (as defined herein) and related transactions;


 


WHEREAS,
for federal income tax purposes, it is intended that the Distributions shall
qualify as tax-free transactions under Sections 355(a) and/or 368(a)(1)(D) of
the Code;


 


WHEREAS,
at the close of business on the Distribution Date of a Spinco, the taxable year
of such Spinco shall close for federal income tax purposes; and


 


WHEREAS,
the Parties wish to provide for the payment of Income Taxes and Other Taxes and
entitlement to Refunds thereof, allocate responsibility and provide for
cooperation in connection with the filing of returns in respect of Income Taxes
and Other Taxes, and provide for certain other matters relating to Income Taxes
and Other Taxes.


 


NOW,
THEREFORE, in consideration of the premises and the representations, covenants
and agreements herein contained and intending to be legally bound hereby, the
Parties agree as follows:


 


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1.             Definitions.  Capitalized terms used but not
defined herein shall have the respective meanings assigned to them in the
Separation Agreement.  For purposes of
this Agreement, the following terms shall have the meanings set forth below:


 


“Actually
Realized” or “Actually Realizes” shall mean, for purposes of
determining the timing of the incurrence of any Spin-Off Tax Liability, Income
Tax Liability or Other Tax Liability or the realization of a Refund (or any
related Tax cost or benefit), whether by receipt or as a credit or other offset
to Taxes payable, by a Person in respect of any payment, transaction,
occurrence or event, the time at which the amount of Income Taxes or Other
Taxes paid (or Refund realized) by such Person is increased above (or reduced
below) the amount of Income Taxes or Other Taxes that such Person would have
been required to pay (or Refund that such Person would have realized) but for
such payment, transaction, occurrence or event.


 


“Aggregate
Spin-Off Tax Liabilities” shall mean the sum of the Spin-Off Tax
Liabilities with respect to each Taxing Jurisdiction.


 


“Breaching
Party” shall have the meaning set forth in Section 8(c) hereof.


 


“Carryback”
shall mean the carryback of a Tax Attribute (including, without limitation, a
net operating loss, a net capital loss or a tax credit) by a member of a Spinco
Group from a Post-Distribution Taxable Period to a Pre-Distribution Taxable
Period during which the member of the Spinco Group was included in a Combined
Return filed for such Pre-Distribution Taxable Period.


 


“Carryback
Spinco” shall have the meaning set forth in Section 7(b) hereof.


 


“Cash
Acquisition Merger” shall mean a merger of a newly-formed Subsidiary of a
Spinco with a corporation, limited liability company, limited partnership,
general partnership or joint venture (in each case, not previously owned
directly or indirectly by such Spinco) pursuant to which such Spinco acquires
such corporation, limited liability company, limited partnership, general
partnership or joint venture solely for cash and no Equity Securities of such
Spinco or any Subsidiary of such Spinco are issued, sold, redeemed or acquired,
directly or indirectly.


 


“Code”
shall mean the Internal Revenue Code of 1986, as amended.


 


“Combined
Return” shall mean a consolidated, combined or unitary Income Tax Return or
Other Tax Return that includes, by election or otherwise, one or more members
of the Parent Group together with one or more members of a Spinco Group.


 


“Compensatory
Equity Interests” shall have the meaning set forth in Section 11(a).


 


“Delayed
Common Stock” shall have the meaning ascribed to such term in the EMA.


 


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“Distribution”
or “Distributions” shall mean, individually or collectively, the
Ticketmaster Spinco Distribution, the Interval Spinco Distribution, the HSN
Spinco Distribution and the Tree Spinco Distribution.


 


“Distribution
Date” shall mean, with respect to a Spinco, the date on which the
Distribution of such Spinco is completed.


 


“Distribution-Related
Proceeding” shall mean any Proceeding in which the IRS, another Tax
Authority or any other party asserts a position that could reasonably be
expected to adversely affect the Tax-Free Status of any of the Spin-Off-Related
Transactions.


 


“EMA”
shall mean the Employee Matters Agreement by and among Parent and the Spincos
dated as of August 20, 2008.


 


“Employing
Party” shall have the meaning set forth in Section 11(a) hereof.


 


“Equity
Securities” shall mean any stock or other securities treated as equity for
federal income tax purposes, options, warrants, rights, convertible debt, or
any other instrument or security that affords any Person the right, whether
conditional or otherwise, to acquire stock or to be paid an amount determined
by reference to the value of stock.


 


 “Fifty-Percent or Greater Interest”
shall have the meaning ascribed to such term for purposes of Sections 355(d) and
(e) of the Code.


 


“Final
Determination” shall mean the final resolution of liability for any Tax,
which resolution may be for a specific issue or adjustment or for a taxable
period, (a) by IRS Form 870 or 870-AD (or any successor forms
thereto), on the date of acceptance by or on behalf of the taxpayer, or by a
comparable form under the laws of any other Taxing Jurisdiction, except that a Form 870
or 870-AD or comparable form shall not constitute a Final Determination to the
extent that it reserves (whether by its terms or by operation of law) the right
of the taxpayer to file a claim for Refund or the right of the Tax Authority to
assert a further deficiency in respect of such issue or adjustment or for such
taxable period (as the case may be); (b) by a decision, judgment, decree,
or other order by a court of competent jurisdiction, which has become final and
unappealable; (c) by a closing agreement or accepted offer in compromise
under Sections 7121 or 7122 of the Code, or a comparable agreement under the
laws of any other Taxing Jurisdiction; (d) by any allowance of a Refund or
credit in respect of an overpayment of Tax, but only after the expiration of
all periods during which such Refund may be recovered (including by way of
offset) by the Taxing Jurisdiction imposing such Tax; or (e) by any other
final disposition, including by reason of the expiration of the applicable
statute of limitations or by mutual agreement of the parties.


 


“Group”
shall mean the Parent Group, the Ticketmaster Spinco Group, the Interval Spinco
Group, the HSN Spinco Group or the Tree Spinco Group, as applicable.


 


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“HSN
Spinco Consolidated Group” shall mean the affiliated group of corporations
(within the meaning of Section 1504(a) of the Code without regard to
the exclusions in Section 1504(b)(1) through (8)) of which HSN Spinco
is the common parent, determined immediately after the HSN Spinco Distribution
(and any predecessor or successor to such affiliated group other than the
Parent Consolidated Group or any other Spinco Consolidated Group).


 


“HSN
Spinco Distribution” shall mean the distribution by Parent of all the
common stock of HSN Spinco pro rata to
holders of Distributing Common Stock and Distributing Class B Common
Stock.


 


“HSN
Spinco Group” shall mean (a) HSN Spinco and each Person that is a
direct or indirect Subsidiary of HSN Spinco (including any Subsidiary of HSN
Spinco that is disregarded for federal Income Tax purposes (or for purposes of
any state, local, or foreign tax law)) immediately after the HSN Spinco
Distribution after giving effect to the Spin-Off-Related Transactions, (b) any
corporation (or other Person) that shall have merged or liquidated into HSN
Spinco or any such Subsidiary and (c) any predecessor or successor to any
Person otherwise described in this definition.


 


“Income
Taxes” (a) shall mean (i) any federal, state, local or foreign
taxes, charges, fees, imposts, levies or other assessments that are based upon,
measured by, or calculated with respect to (A) net income or profits
(including, but not limited to, any capital gains, gross receipts, or minimum
tax, and any tax on items of tax preference, but not including sales, use,
value added, real property gains, real or personal property, transfer or
similar taxes), (B) multiple bases (including, but not limited to,
corporate franchise, doing business or occupation taxes), if one or more of the
bases upon which such tax may be based, by which it may be measured, or with
respect to which it may be calculated is described in clause (a)(i)(A) of
this definition, or (C) any net worth, franchise or similar tax, in each
case together with (ii) any interest and any penalties, fines, additions
to tax or additional amounts imposed by any Tax Authority with respect thereto
and (b) shall include any transferee or successor liability in respect of
an amount described in clause (a) of this definition.


 


“Income
Tax Benefit” shall mean, with respect to a Party and the members of its
Group, the excess of (a) the hypothetical Income Tax Liability of the
Party and the members of its Group for such taxable period, calculated as if
such Carryback had not been utilized but with all other facts unchanged over (b) the
actual Income Tax Liability of the Party or the members of its Group for such
taxable period, calculated taking into account such Carryback (and treating any
Refund as a negative Income Tax Liability for purposes of such calculation).


 


“Income
Tax Return” shall mean any return, report, filing, statement,
questionnaire, declaration or other document required to be filed with a Tax
Authority in respect of Income Taxes.


 


“Indemnified
Party” shall mean any Person seeking indemnification pursuant to the
provisions of this Agreement.


 


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“Indemnifying
Party” shall mean any Party from which any Indemnified Party is seeking
indemnification pursuant to the provisions of this Agreement.


 


“Indemnifying
Spinco” shall have the meaning set forth in Section 3(b) hereof.


 


“Injured
Party” shall have the meaning set forth in Section 8(c) hereof.


 


“Internal
Distribution” shall mean any of the Internal Restructuring Steps that is
intended to qualify as a tax-free transaction under Section 355(a) and/or
368(a)(1)(D) of the Code.


 


“Internal
Restructuring Steps” shall have the meaning set forth in the recitals to
this Agreement.


 


“Interval”
shall mean Interval Acquisition Corp.


 


“Interval
Spinco Consolidated Group” shall mean the affiliated group of corporations
(within the meaning of Section 1504(a) of the Code without regard to
the exclusions in Section 1504(b)(1) through (8)) of which Interval
Spinco is the common parent, determined immediately after the Interval Spinco
Distribution (and any predecessor or successor to such affiliated group other
than the Parent Consolidated Group or any other Spinco Consolidated Group).


 


 “Interval Spinco Distribution” shall
mean the distribution by Parent of all the common stock of Interval Spinco pro rata to holders of Distributing Common Stock and
Distributing Class B Common Stock.


 


“Interval
Spinco Group” shall mean (a) Interval Spinco and each Person that is a
direct or indirect Subsidiary of Interval Spinco (including any Subsidiary of
Interval Spinco that is disregarded for federal Income Tax purposes (or for
purposes of any state, local, or foreign tax law)) immediately after the
Interval Spinco Distribution after giving effect to the Spin-Off-Related
Transactions, (b) any corporation (or other Person) that shall have merged
or liquidated into Interval Spinco or any such Subsidiary and (c) any predecessor
or successor to any Person otherwise described in this definition.


 


“IRS”
shall mean the Internal Revenue Service.


 


“IRS
Ruling” shall mean any private letter ruling issued by the IRS in
connection with any of the Spin-Off-Related Transactions.


 


“IRS
Ruling Documents” shall mean the request for a private letter ruling
submitted by Parent to the IRS on April 11, 2008, together with the
appendices and exhibits thereto, and any supplemental filings or other
materials subsequently submitted to the IRS in connection with the
Spin-Off-Related Transactions.


 


“Losses”
shall mean any and all losses, liabilities, claims, damages, obligations,
payments, costs and expenses, matured or unmatured, absolute or contingent,


 


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accrued or unaccrued, liquidated or unliquidated, known or unknown
(including, without limitation, the costs and expenses of any and all Actions,
threatened Actions, demands, assessments, judgments, settlements and
compromises relating thereto and attorneys’ fees and any and all expenses
whatsoever reasonably incurred in investigating, preparing or defending against
any such Actions or threatened Actions).


 


“Option”
shall have the meaning ascribed to such term in the EMA.


 


“Other
Tax Returns” shall mean any return, report, filing, statement,
questionnaire, declaration or other document required to be filed with a Tax
Authority in respect of Other Taxes.


 


“Other
Taxes” shall mean any federal, state, local or foreign taxes, charges,
fees, imposts, levies or other assessments of any nature whatsoever, and
without limiting the generality of the foregoing, shall include superfund,
sales, use, ad valorem, value added, occupancy, transfer, recording,
withholding, payroll, employment, excise, occupation, premium or property taxes
(in each case, together with any related interest, penalties and additions to
tax, or additional amounts imposed by any Tax Authority thereon); provided,
however, that Other Taxes shall not include any Income Taxes.


 


“Parent
Consolidated Group” shall mean the affiliated group of corporations (within
the meaning of Section 1504(a) of the Code without regard to the
exclusions in Section 1504(b)(1) through (8)) of which Parent is the
common parent (and any predecessor or successor to such affiliated group).


 


“Parent
Group” shall mean (a) Parent and each Person that is a direct or
indirect Subsidiary of Parent (including any Subsidiary of Parent that is
disregarded for federal Income Tax purposes (or for purposes of any state,
local, or foreign tax law)) immediately after the Distributions after giving
effect to the Spin-Off-Related Transactions, (b) any corporation (or other
Person) that shall have merged or liquidated into Parent or any such Subsidiary
and (c) any predecessor or successor to any Person otherwise described in
this definition.


 


“Parent
Separate Return” shall mean any Separate Return required to be filed by
Parent or any member of the Parent Group.


 


“Participating
Spinco” shall have the meaning set forth in Section 6(d) hereof.


 


“Party”
or “Parties” shall have the meaning set forth in the recitals to this
Agreement.


 


“Permitted
Transaction” shall mean any transaction that satisfies the requirements of
Sections 4(c).


 


“Person”
shall mean any individual, partnership, joint venture, limited liability
company, corporation, association, joint stock company, trust, unincorporated


 


7

















 


organization or similar entity or a governmental authority or any
department or agency or other unit thereof.


 


“Post-Distribution
Taxable Period” shall mean, with respect to a Spinco and its Subsidiaries,
a taxable period that begins after the Distribution Date of such Spinco.


 


“Pre-Distribution
Taxable Period” shall mean, with respect to a Spinco and its Subsidiaries,
a taxable period that ends on or before the Distribution Date of such Spinco.


 


“Proceeding”
shall mean any audit or other examination, or judicial or administrative
proceeding relating to liability for, or Refunds or adjustments with respect
to, Taxes.


 


“Refund”
shall mean any refund of Taxes, including any reduction in Tax Liabilities by
means of a credit, offset or otherwise.


 


“Relying
Party” shall have the meaning set forth in Section 8(d) hereof.


 


“Representative”
shall mean with respect to a Person, such Person’s officers, directors,
employees and other authorized agents.


 


“Representing
Spinco” shall have the meaning set forth in Section 4(a) hereof.


 


“Requesting
Spinco” shall have the meaning set forth in Section 4(c)(ii) hereof.


 


“Responsible
Spinco” shall have the meaning set forth in Section 4(e) hereof.


 


“Restriction
Period” shall mean, with respect to a Spinco, the period beginning on the
Distribution Date after the Distribution of such Spinco and ending on the
twenty five (25) month anniversary thereof.


 


“Separate
Return” shall mean (a) in the case of any Tax Return required to be
filed by any member of a Spinco Group (including any consolidated, combined or
unitary return), any such Tax Return that does not include any member of the
Parent Group or any member of any other Spinco Group and (b) in the case
of any Tax Return required to be filed by any member of the Parent Group
(including any consolidated, combined or unitary return), any such Tax Return
that does not include any member of a Spinco Group.


 


“Separation
Agreement” shall have the meaning set forth in the recitals of this
Agreement.


 


8

















 


“Specified
Restructuring Income Taxes” shall mean any Income Taxes of Parent or any
entity that is or was a direct or indirect Subsidiary of Parent prior to the
Distributions resulting from (a) the transfer of any Equity Securities of
Interval to Interval Spinco prior to the Interval Spinco Distribution; (b) any
transfer of assets by FLMG Holdings Corp. to TM Spinco or one of its direct or
indirect Subsidiaries prior to the TM Spinco Distribution; (c) any
Internal Distribution (or portion thereof) failing to achieve Tax-Free Status, (d) the
sum of (i) any money and (ii) the fair market value of other
property, in each case, transferred by any Spinco or Interval to any
shareholder of such Spinco or Interval in connection with a Distribution
exceeding (x) such shareholder’s tax basis in its shares of stock of such
Spinco or Interval or (y) the net tax basis of any assets contributed by
such shareholder to such Spinco, and (e) the triggering of any excess loss
account as a result of the Distributions or the Internal Restructuring Steps.


 


 “Spinco Adjustment” shall mean, with
respect to a Spinco, an adjustment of any item of income, gain, loss, deduction
or credit on a Combined Return that is attributable to members of such Spinco
Group (including, in the case of any state or local consolidated, combined or
unitary income or franchise Taxes, a change in one or more apportionment
factors of members of a Spinco Group) pursuant to a Final Determination for a
Pre-Distribution Taxable Period.


 


 “Spinco Business” shall mean, with
respect to a Spinco, each trade or business actively conducted (within the
meaning of Section 355(b) of the Code) by such  Spinco or any member of its respective Spinco
Group immediately after the Distribution of such Spinco, as set forth in the
IRS Ruling Documents (if applicable) and the Tax Opinion Documents.


 


“Spinco
Consolidated Group” or “Spinco Consolidated Groups” shall mean,
individually or collectively, the Ticketmaster Spinco Consolidated Group, the
Interval Spinco Consolidated Group, the HSN Spinco Consolidated Group, and the
Tree Spinco Consolidated Group.


 


“Spinco
Group” or “Spinco Groups” shall mean, individually or collectively,
the Ticketmaster Spinco Group, the Interval Spinco Group, the HSN Spinco Group,
and the Tree Spinco Group.


 


“Spinco
Separate Return” shall mean any Separate Return required to be filed by a
Spinco or any member of its respective Spinco Group, including, without
limitation, (a) any consolidated federal Income Tax Returns of the Spinco
Consolidated Group required to be filed with respect to a Post-Distribution
Taxable Period and (b) any consolidated federal Income Tax Returns for any
group of which any member of the Spinco Group was the common parent.


 


 “Spin-Off-Related Transactions” shall
mean, with respect to a Distribution of a Spinco, any related contribution of
assets to, and assumption of liabilities by, such Spinco, the Distribution of
such Spinco and any Internal Restructuring


 


9

















 


Steps associated with such Distribution, in each case, as described in
the Transactions Memo.


 


“Spin-Off
Tax Liabilities” shall mean, with respect to any Taxing Jurisdiction, the
sum of (a) any increase in a Tax Liability (or reduction in a Refund)
Actually Realized as a result of any corporate-level gain or income recognized
with respect to the failure of any of the Spin-Off-Related Transactions to
qualify for Tax-Free Status under the Income Tax laws of such Taxing
Jurisdiction pursuant to any settlement, Final Determination, judgment,
assessment, proposed adjustment or otherwise, (b) interest on such amounts
calculated pursuant to such Taxing Jurisdiction’s laws regarding interest on
Tax liabilities at the highest Underpayment Rate in such Taxing Jurisdiction
from the date such additional gain or income was recognized until full payment
with respect thereto is made pursuant to Section 3 hereof (or in the case
of a reduction in a Refund, the amount of interest that would have been
received on the foregone portion of the Refund but for the failure of any of
the Spin-Off-Related Transactions to qualify for Tax-Free Status), and (c) any
penalties actually paid to such Taxing Jurisdiction that would not have been
paid but for the failure of any of the Spin-Off-Related Transactions to qualify
for Tax-Free Status in such Taxing Jurisdiction.


 


“Supplying
Party” shall have the meaning set forth in Section 8(d) hereof.


 


“Tax
Attribute” shall mean a consolidated, combined or unitary net operating
loss, net capital loss, unused investment credit, unused foreign tax credit, or
excess charitable contribution (as such terms are used in Treasury Regulations
1.1502-79 and 1.1502-79A or comparable provisions of foreign, state or local
tax law), or a minimum tax credit or general business credit.


 


“Tax
Authority” shall mean a governmental authority (foreign or domestic) or any
subdivision, agency, commission or authority thereof or any quasi-governmental
or private body having jurisdiction over the assessment, determination,
collection or imposition of any Tax (including, without limitation, the IRS).


 


“Tax
Benefits” shall have the meaning set forth in Section 3(a) hereof.


 


“Tax
Counsel” shall mean tax counsel or an accounting firm of recognized
national standing that is acceptable to Parent in its sole discretion.


 


“Taxes”
shall mean Income Taxes and Other Taxes.


 


“Tax-Free
Status” shall mean, with respect to a Distribution, the qualification of
each of the Spin-Off-Related Transactions (other than the transfer by Parent of
its membership interests in LendingTree, LLC to LendingTree Holdings Corp.) as (a) a
transaction described in Sections 355(a) and/or 368(a)(1)(D) of the
Code (or, in the case of the Internal Restructuring Steps associated with a
Distribution, the qualification of such Internal Restructuring Steps as one or
more transactions that are generally tax-free for federal income tax purposes
pursuant to Section 351, Section 355, Section 368(a), Sections
332 and 337, or otherwise), (b) except with respect to the Distribution of
Tree Spinco, as a transaction in which the stock distributed thereby is


 


10

















 


“qualified property” for purposes of Section 361(c) of the
Code, and (c) as a transaction in which the Parties and the members of
their respective Groups recognize no income or gain other than intercompany
items or excess loss accounts, if any, taken into account pursuant to the
Treasury Regulations promulgated pursuant to Section 1502 of the Code.


 


“Taxing
Jurisdiction” shall mean the United States and every other government or
governmental unit having jurisdiction to tax one or more of the Parties or any
of their respective Affiliates.


 


“Tax
Liabilities” shall mean any liabilities for Taxes.


 


“Tax
Opinions” shall mean the tax opinions issued by Tax Counsel in connection
with the Spin-Off-Related Transactions.


 


“Tax
Opinion Documents” shall mean the Tax Opinions and the information and
representations provided by, or on behalf of, the Parties to Tax Counsel in
connection therewith.


 


“Tax-Related Losses” shall mean:


 


(a)           the Aggregate Spin-Off Tax
Liabilities,


 


(b)           all accounting, legal and other
professional fees, and court costs incurred in connection with any settlement,
Final Determination, judgment or other determination with respect to such
Aggregate Spin-Off Tax Liabilities, and


 


(c)           all costs, expenses and damages
associated with stockholder litigation or controversies and any amount paid by
a Party in respect of the liability of shareholders, whether paid to
shareholders or to the IRS or any other Tax Authority payable by a Party or its
respective Affiliates, in each case, resulting from the failure of any of the
Spin-Off-Related Transactions to qualify for Tax-Free Status.


 


“Ticketmaster
Spinco Consolidated Group” shall mean the affiliated group of corporations
(within the meaning of Section 1504(a) of the Code without regard to
the exclusions in Section 1504(b)(1) through (8)) of which
Ticketmaster Spinco is the common parent, determined immediately after the
Ticketmaster Spinco Distribution (and any predecessor or successor to such
affiliated group other than the Parent Consolidated Group or any other Spinco
Consolidated Group).


 


“Ticketmaster
Spinco Distribution” shall mean the distribution by Parent of all the
common stock of Ticketmaster Spinco pro rata to
holders of Distributing Common Stock and Distributing Class B Common
Stock.


 


“Ticketmaster
Spinco Group” shall mean (a) Ticketmaster Spinco and each Person that
is a direct or indirect Subsidiary of Ticketmaster Spinco (including any
Subsidiary of Ticketmaster Spinco that is disregarded for federal Income Tax
purposes (or for purposes of any state, local, or foreign tax law)) immediately
after the Ticketmaster Spinco Distribution after giving effect to the
Spin-Off-Related


 


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Transactions, (b) any corporation (or other Person) that shall
have merged or liquidated into Ticketmaster Spinco or any such Subsidiary and (c) any
predecessor or successor to any Person otherwise described in this definition.


 


“Tree
Spinco Consolidated Group” shall mean the affiliated group of corporations
(within the meaning of Section 1504(a) of the Code without regard to
the exclusions in Section 1504(b)(1) through (8)) of which Tree
Spinco is the common parent, determined immediately after the Tree Spinco
Distribution (and any predecessor or successor to such affiliated group other
than the Parent Consolidated Group or any other Spinco Consolidated Group).


 


“Tree
Spinco Distribution” shall mean the distribution by Parent of all the
common stock of Tree Spinco pro rata to
holders of Distributing Common Stock and Distributing Class B Common
Stock.


 


“Tree
Spinco Group” shall mean (a) Tree Spinco and each Person that is a
direct or indirect Subsidiary of Tree Spinco (including any Subsidiary of Tree
Spinco that is disregarded for federal Income Tax purposes (or for purposes of
any state, local, or foreign tax law)) immediately after the Tree Spinco
Distribution after giving effect to the Spin-Off-Related Transactions, (b) any
corporation (or other Person) that shall have merged or liquidated into Tree
Spinco or any such Subsidiary and (c) any predecessor or successor to any
Person otherwise described in this definition.


 


“Underpayment
Rate” shall mean the annual rate of interest described in Section 6621(c) of
the Code for large corporate underpayments of Income Tax (or similar provision
of state, local, or foreign Income Tax law, as applicable), as determined from
time to time.


 


“Unqualified
Tax Opinion” shall mean an unqualified opinion of Tax Counsel on which
Parent may rely to the effect that a transaction (a) will not disqualify
any of the Spin-Off-Related Transactions from having Tax-Free Status, assuming
that the Spin-Off-Related Transactions would have qualified for Tax-Free Status
if such transaction did not occur, and (b) will not adversely affect any
of the conclusions set forth in the IRS Ruling (if applicable) or the Tax
Opinions; provided, that any tax opinion obtained in connection with a
proposed acquisition of Equity Securities of a Spinco (or any entity treated as
a successor to such Spinco), other than Tree Spinco, entered into during the
Restriction Period shall not qualify as an Unqualified Opinion unless such tax
opinion concludes that such proposed acquisition will not be treated as “part
of a plan (or series of related transactions),” within the meaning of Section 355(e) of
the Code and the Treasury Regulations promulgated thereunder, that includes the
Distribution of such Spinco.


 


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2.             Filing of Tax Returns; Payment of Taxes.


 


(a)           Filing of Tax
Returns; Payment of Income Taxes and Other Taxes.


 


(i)            Parent Consolidated Returns;
Other Combined Returns.  Parent shall
prepare and file or cause to be prepared and filed (A) all consolidated
federal Income Tax Returns of the Parent Consolidated Group and (B) all
other Combined Returns for all taxable periods that end, with respect to a
Spinco, on or before the Distribution Date of such Spinco.  Parent shall pay, or cause to be paid, any
and all Taxes due or required to be paid with respect to or required to be
reported on any such Tax Return (in each case, including any increase in such
Tax Liabilities attributable to a Final Determination with respect to a
Pre-Distribution Taxable Period (including a Spinco Adjustment); provided
that Parent shall not be responsible for any Spinco Adjustment if the
Spinco Group to which such Spinco Adjustment relates fails to promptly provide
such cooperation as is requested by Parent in connection with Parent’s conduct
of the Proceeding to which such Final Determination relates).


 


(ii)           Parent Separate Returns.  Parent shall prepare and file or cause to be
prepared and filed all Parent Separate Returns for all taxable periods.  Parent shall pay, or cause to be paid, any
and all Taxes due or required to be paid with respect to or required to be
reported on any Parent Separate Return (including any increase in such Tax
Liabilities attributable to a Final Determination).


 


(iii)          Spinco Adjustments.  If a Spinco fails to promptly provide such
cooperation as is requested by Parent in connection with Parent’s conduct of a
Proceeding relating to a Spinco Adjustment with respect to such Spinco, such
Spinco shall pay and shall be responsible for any Tax Liabilities (including
any Specified Restructuring Income Tax Liabilities) attributable to such Spinco
Adjustment.


 


(iv)          Spinco Separate Returns.  Each Spinco shall prepare and file or cause
to be prepared and filed its respective Spinco Separate Returns for all taxable
years.  Each Spinco shall pay, or cause
to be paid, any and all Taxes due or required to be paid with respect to or
required to be reported on its Spinco Separate Returns (including any increase
in such Tax Liabilities attributable to a Final Determination).


 


(b)           Preparation of
Tax Returns.


 


(i)            Parent (or its designee) shall
determine the entities to be included in any Combined Return and make or revoke
any Tax elections, adopt or change any Tax accounting methods, and determine
any other position taken on or in respect of any Tax Return required to be
prepared and filed by Parent pursuant to Section 2(a)(i) or
(ii).  Any Tax Return  filed by Parent pursuant to Section 2(a)(i) with
respect to any Pre-Distribution Taxable Period shall, to the extent relating to
one or more of the Spincos or their respective Spinco Groups, be prepared in
good faith.  For the avoidance of doubt,
with respect to the consolidated federal income tax return of Parent and its
subsidiaries for any taxable year that includes one or more Distributions,
Parent shall determine in its sole discretion whether to elect ratable
allocation under Treasury Regulation Section 1.1502-76.  Each Spinco shall, and shall cause each
member of its respective Spinco Group to, take all actions necessary to give
effect to such


 


13

















 


election.  Each Spinco shall, and shall cause each
member of its respective Spinco Group to, prepare and submit at Parent’s
request (but in no event later than 90 days after such request), at its own
expense, all information that Parent shall reasonably request, in such form as
Parent shall reasonably request, including any such information requested to
enable Parent to prepare any Tax Return  required
to be filed by Parent pursuant to Section 2(a)(i).


 


(ii)           Except as otherwise required by
applicable law or as a result of a Final Determination, (A) no Party
shall, or permit or cause any member of its respective Group to, take any
position that is either inconsistent with the treatment of the Spin-Off-Related
Transactions as having Tax-Free Status (or analogous status under state, local
or foreign law) and, (B) no Spinco shall, or permit or cause any member of
its respective Spinco Group to, take any position with respect to an item of income,
deduction, gain, loss, or credit on a Tax Return, or otherwise treat such item
in a manner which is inconsistent with the manner such item is reported on a
Tax Return required to be prepared or filed by Parent pursuant to Section 2(a) hereof
(including, without limitation, the claiming of a deduction previously claimed
on any such Tax Return).


 


3.             Indemnification for Income Taxes and Other Taxes.


 


(a)           Indemnification by Parent.  From and after the Distribution of a Spinco,
except as otherwise provided in Sections 3(b) and 3(c), Parent and each
member of the Parent Group shall be responsible for and shall jointly and
severally indemnify, defend and hold harmless such Spinco and each member of
its Spinco Group and each of its Representatives and Affiliates (and the heirs,
executors, successors and assigns of any of them) from and against (i) all
Spin-Off Tax Liabilities incurred by any member of the Parent Group, (ii) without
duplication, all Tax Liabilities that any member of the Parent Group is
required to pay pursuant to Section 2, (iii) all Taxes, Spin-Off Tax
Liabilities and Tax-Related Losses incurred by any member of any Group by
reason of the breach by Parent or a member of the Parent Group of any of its
representations or covenants hereunder or made in connection with the IRS
Ruling (if applicable) and/or the Tax Opinions and, in each case, any related
costs and expenses (including, without limitation, reasonable attorneys’ fees
and expenses), and (iv) all Specified Restructuring Income Taxes; provided,
however, that neither Parent nor any member of the Parent Group shall
have any obligation to indemnify, defend or hold harmless any Person pursuant
to this Section 3(a) to the extent that such indemnification
obligation is otherwise attributable to a breach by a Spinco (or a member of
its Group) of any of its representations or covenants hereunder or made in
connection with the IRS Ruling (if applicable) and/or the Tax Opinions; provided
further, that (x) in the event that an IRS Ruling is not
obtained with respect to the Distribution of a Spinco, neither Parent nor such
Spinco shall be deemed to make any representations regarding such Distribution
in the IRS Ruling Documents, and (y) no Spinco makes any representations
regarding any facts that, if untrue, would result in Specified Restructuring
Income Taxes (other than representations regarding (1) whether such Spinco
is engaged in the active conduct of a trade or business within the meaning of Section 355(b) of
the Code, (2) such Spinco’s conduct after the Distribution, and (3) the
matters set forth in Section 4(a)(iii) hereof).  If the indemnification obligation of Parent
or any member of the Parent Group under this Section 3(a) (or any
adjustment for which Parent is responsible pursuant to this Section 3(a),
including any adjustment with respect to a Tax Return for which Parent is
responsible pursuant to Section


 


14

















 


2(a)(i)) results in (i) increased
deductions, losses, or credits, or (ii) decreases in income, gains or
recapture of Tax credits (“Tax Benefits”) to a Spinco or any member of
such Spinco’s Group, which would not, but for the indemnification obligation
(or the adjustment giving rise to such indemnification obligation), be
allowable, then each Spinco receiving such Tax Benefit shall pay Parent the
amount by which such Tax Benefit actually reduces, in cash, the amount of Tax
that such Spinco or any member of its Spinco Group would have been required to
pay and bear (or increases, in cash, the amount of a Refund to which such
Spinco or any member of its Spinco Group would have been entitled) but for such
indemnification obligation (or adjustment giving rise to such indemnification
obligation).  Each Spinco receiving the
Tax Benefit shall pay Parent for such Tax Benefit no later than five days after
such Tax Benefit is Actually Realized.


 


(b)           Indemnification by Spincos.  From and after the Distribution Date of a
Spinco, such Spinco (an “Indemnifying Spinco”) and each member of its
Spinco Group shall be responsible for and shall jointly and severally
indemnify, defend and hold harmless each other Party and the members of each
other Party’s respective Group and their respective Representatives and
Affiliates (and the heirs, executors, successors and assigns of any of them)
from and against (i) all Tax Liabilities (including Specified
Restructuring Income Taxes), Spin-Off Tax Liabilities and Tax-Related Losses
that the Indemnifying Spinco or any member of its Spinco Group is required to
pay under Section 2(a)(iii) and (iv) or is responsible for under
Section 4(e) (including, without limitation, any Tax Liabilities or
Spin-Off Tax Liabilities or Tax-Related Losses arising with respect to a
Permitted Transaction for which the Indemnifying Spinco is liable pursuant to Section 4(e)(i));
provided, that a Spinco shall not be responsible for (and Parent
shall indemnify such Spinco for) Specified Restructuring Income Taxes payable
with respect to any Tax Return described in Section 2(a)(iv) except
to the extent such Spinco is responsible for such Taxes under clause (ii) hereof;  (ii) all Taxes (including Specified
Restructuring Income Taxes), Spin-Off Tax Liabilities and other Tax-Related
Losses incurred by any member of any Group by reason of the breach by the Indemnifying
Spinco or any member of its Spinco Group of any of its representations or
covenants hereunder or made in connection with the IRS Ruling (if applicable)
and/or the Tax Opinions (irrespective of whether Parent made the same
representation on behalf of, or with respect to, such Spinco) and, in each
case, any related costs and expenses (including, without limitation, reasonable
attorneys’ fees and expenses); provided, that (x) in the
event that an IRS Ruling is not obtained with respect to the Distribution of a
Spinco, such Spinco shall not be deemed to make any representations regarding
such Distribution in the IRS Ruling Documents, and (y) no Spinco makes any
representations regarding any facts that, if untrue, would result in Specified
Restructuring Income Taxes (other than representations regarding (1) whether
such Spinco is engaged in the active conduct of a trade or business within the
meaning of Section 355(b) of the Code, (2) such Spinco’s conduct
after the Distribution, and (3) the matters set forth in Section 4(a)(iii) hereof).  If the indemnification obligation of a Spinco
or any member of its Spinco Group under this Section 3(b) (or any
adjustment for which such Spinco is responsible pursuant to this Section 3(b))
results in a Tax Benefit to another Party or any member of such other Party’s
Group, which would not, but for the Tax which is the subject of the
indemnification obligation (or the adjustment giving rise to such
indemnification obligation), be allowable, then each Party receiving such Tax
Benefit shall pay the Indemnifying Spinco the amount by which such Tax Benefit
actually reduces, in cash, the amount of Tax that the Party or any member of
its Group would have been required to pay and bear (or increases, in cash, the
amount of a Refund to which the Party or any member of its Group would have
been entitled) but for such


 


15

















 


indemnification (or
adjustment giving rise to such indemnification obligation).  Each Party receiving such Tax Benefit shall
pay the Indemnifying Spinco for such Tax Benefit no later than five days after
such Tax Benefit is Actually Realized.


 


(c)           Spinco Group Indemnification
Failure.  In the event that (i) pursuant
to a Final Determination, any member of a Spinco Group is liable for, or
otherwise required to make a payment in respect of, Spin-Off Tax Liabilities
for which such Spinco Group is not responsible pursuant to this Agreement and (ii) full
indemnification cannot be obtained from the Spinco Group responsible for such
Spin-Off Tax Liabilities pursuant to this Agreement, Parent and each member of
the Parent Group shall jointly and severally indemnify, defend and hold
harmless the Spinco referred to in clause (i) and each member of its
Spinco Group and each of its respective Representatives and Affiliates (and the
heirs, executors, successors and assigns of any of them) from and against the
portion of such liability for which full indemnification cannot be obtained
from the Spinco Group referred to in clause (ii).  Upon any payment by Parent or any member of
the Parent Group in accordance with the preceding sentence, Parent or such
member of the Parent Group shall be subrogated to any and all rights (including
rights to payment and causes of action, under this Agreement or otherwise) of
each member of the Spinco Group described in clause (i) in connection with
the Final Determination at issue.


 


(d)           Timing of Indemnification Payments.  Any payment and indemnification made pursuant
to this Section 3 shall be made by the Indemnifying Party promptly, but,
in any event, no later than:


 


(i)            in the case of an indemnification
obligation with respect to any Tax Liabilities or Spin-Off Tax Liabilities, the
later of (A) five Business Days after the Indemnified Party notifies the Indemnifying
Party and (B) five Business Days prior to the date the Indemnified Party
is required to make a payment of taxes, interest, or penalties to the
applicable Tax Authority (including a payment with respect to an assessment of
a tax deficiency by any Taxing Jurisdiction or a payment made in settlement of
an asserted tax deficiency) or realizes a reduced Refund; and


 


(ii)           in the case of any payment or
indemnification of any Losses not otherwise described in clause (i) of
this Section 3(d) (including, but not limited to, any Losses
described in clause (b) or (c) of the definition of Tax-Related
Losses, attorneys’ fees and expenses and other indemnifiable Losses), the later
of (A) five Business Days after the Indemnified Party notifies the
Indemnifying Party and (B) five Business Days prior to the date the
Indemnified Party makes a payment thereof.


 


4.             Spin-Off Related Matters.


 


(a)           Representations.


 


(i)            IRS Ruling Documents and Tax
Opinion Documents.  Each Spinco (a “Representing
Spinco”) hereby represents and warrants that (A) such Representing
Spinco has examined the IRS Ruling Documents and the Tax Opinion Documents
(including, without limitation, the representations to the extent that they
relate to the plans, proposals, intentions, and policies of the Representing
Spinco or any member of its Spinco Group, or the


 


16

















 


Spinco Business of such
Spinco Group), and (B) to the extent in reference to such Representing
Spinco, any member of its Spinco Group, or the Spinco Business of such Spinco
Group, the facts presented and the representations made therein are true,
correct and complete; provided, that (x) in the event that
an IRS Ruling is not obtained with respect to the Distribution of a Spinco,
such Spinco shall not be deemed to make any representations regarding such
Distribution in the IRS Ruling Documents, and (y) no Spinco makes any
representations regarding any facts that, if untrue, would result in Specified
Restructuring Income Taxes (other than representations regarding (1) whether
such Spinco is engaged in the active conduct of a trade or business within the
meaning of Section 355(b) of the Code, (2) such Spinco’s conduct
after the Distribution, and (3) the matters set forth in Section 4(a)(iii) hereof).


 


(ii)           Tax-Free Status.  Each Representing Spinco hereby represents
and warrants that it has no plan or intention of taking any action, or failing
to take any action, in each case, from and after its respective Distribution
that could reasonably be expected to  cause
any representation or factual statement made in this Agreement, the Separation
Agreement, the IRS Ruling Documents, the Tax Opinion Documents or any of the
Ancillary Agreements to be untrue; provided, that, in the event
that an IRS Ruling is not obtained with respect to the Distribution of a
Spinco, such Spinco shall not be deemed to make any representations regarding
the IRS Ruling Documents.


 


(iii)          Plan or Series of Related
Transactions.  Each Representing
Spinco hereby represents and warrants that, during the two-year period ending
on the Distribution Date of such Spinco, there was no “agreement,
understanding, arrangement, substantial negotiations or discussions” (as such
terms are defined in Treasury Regulation Section 1.355-7(h)) by any one or
more officers or directors of any member of such Spinco Group or by any other
person or persons with the implicit or explicit permission of one or more of
such officers or directors regarding an acquisition of all or a significant
portion of the Equity Securities of such Spinco (or any predecessor); provided
that no representation is made by any Spinco regarding any “agreement,
understanding, arrangement, substantial negotiations or discussions” (as such
terms are defined in Treasury Regulation 1.355-7(h)) by any one or more
officers or directors of Parent.


 


(b)           Covenants.


 


(i)            Actions Consistent with
Representations and Covenants.  From
and after its respective Distribution, no Spinco (or any member of its
respective Spinco Group) shall take any action, or fail to take any action or
permit any member of its respective Group, to fail to take any action, where
such action or failure to act would be inconsistent with or cause to be untrue
any material information, covenant or representation made in connection with
the IRS Ruling (if applicable), the Tax Opinions, the Separation Agreement or
this Agreement.


 


(ii)           Preservation of Tax-Free Status;
Spinco Business.  From and after its
respective Distribution, no Spinco shall (A) take any action or permit any
member of its respective Spinco Group to take any action, and each Spinco shall
not fail to take any action or permit any member of its respective Spinco Group
to fail to take any action, in each case, unless such action or failure to act
could not reasonably be expected to cause any of the Spin-Off-Related
Transactions to fail to have Tax-Free Status or could not require any of the
Parties to


 


17

















 


reflect a liability or
reserve for Income Taxes with respect to any of the Spin-Off-Related
Transactions in its financial statements, and (B) until the first day
after the Restriction Period, engage in any transaction that could reasonably
be expected to result in it or any member of its respective Spinco Group ceasing
to be a company engaged in its respective Spinco Business.


 


(iii)          Sales, Issuances and Redemptions of
Equity Securities. From and after its respective Distribution until the
first day after the Restriction Period applicable to a Spinco, such Spinco
shall not and shall not agree to (and shall cause the members of its respective
Spinco Group not to and not to agree to) sell or otherwise issue to any Person,
or redeem or otherwise acquire from any Person, any Equity Securities of such
Spinco or any member of its Spinco Group; provided, however, that
(A) the adoption of a shareholder rights plan shall not constitute a sale
or issuance of Equity Securities, (B) a Spinco may issue Equity Securities
to the extent the issuance satisfies Safe Harbor VIII (relating to acquisitions
in connection with a person’s performance of services) or Safe Harbor IX
(relating to acquisitions by a retirement plan of an employer) of Treasury
Regulation Section 1.355-7(d), and (C) members of a Spinco Group
(other than a Spinco) may issue or sell Equity Securities to other members of
the same Spinco Group, and may redeem or purchase Equity Securities from other
members of the same Spinco Group, in each case, to the extent not inconsistent
with the Tax-Free Status of the Spin-Off Related Transactions.  Anything in this Section 4(b)(iii) to
the contrary notwithstanding, there shall be no limitation on the ability of
Tree Spinco to issue Equity Securities of Tree Spinco (or any member of its
Group to issue Equity Securities of such member) to any Person, or to redeem or
otherwise acquire from any Person, any Equity Securities of Tree Spinco or any
member of its Group; provided that any redemption or acquisition of
Equity Securities of Tree Spinco by Tree Spinco or any member of its Spinco Group
prior to (or pursuant to an agreement or arrangement negotiated, in whole or in
part, prior to) the first anniversary of the Distribution Date of Tree Spinco
shall be permitted only if such transaction satisfies the requirements of Section 4.05(1)(b) of
Revenue Procedure 96-30.


 


(iv)          Tender Offers; Other Business
Combination Transactions. From and after its respective Distribution, until
the first day after the Restriction Period applicable to a Spinco, such Spinco
shall (and shall cause the members of its Spinco Group) not to (A) solicit
any Person to make a tender offer for, or otherwise acquire or sell, Equity
Securities of such Spinco, (B) participate in or support any unsolicited
tender offer for, or other acquisition or disposition of, Equity Securities of
such Spinco, or (C) approve or otherwise permit any transaction described
in clauses (A) or (B).  In addition,
no Spinco (nor any members of its respective Spinco Group) shall at any time,
whether before or subsequent to the expiration of the Restriction Period
applicable to such Spinco, engage in any action described in clauses (A), (B) or
(C) of the preceding sentence pursuant to an agreement or arrangement
negotiated (in whole or in part) prior to the first anniversary of the
Distribution of such Spinco, even if at the time of the Distribution or
thereafter such action is subject to one or more conditions.  Anything in this Section 4(b)(iv) to
the contrary notwithstanding, unless (x) such action is taken prior to the
first anniversary of the Distribution Date of Tree Spinco (or pursuant to an
agreement or arrangement negotiated, in whole or in part, prior to the first
anniversary of the Distribution Date of Tree Spinco) and (y) relates to a “subsequent
sale or exchange” (within the meaning of Treasury Regulation Section 1.355-2(d)(2)(iii) (taking
into account clause (E) thereof) of Tree Spinco stock, the limitations
described in this Section 4(b)(iv) shall not apply to Tree Spinco (or
any member of its Spinco Group).


 


18

















 


(v)           Dispositions of Assets. From
and after its respective Distribution until the first day after the Restriction
Period, no Spinco (nor any member of its respective Spinco Group) shall sell,
transfer, or otherwise dispose of or agree to sell, transfer or otherwise
dispose (including in any transaction treated for federal income tax purposes
as a sale, transfer or disposition) of assets (including, any shares of capital
stock of a Subsidiary) that, in the aggregate, constitute more than 30% of the
gross assets of such Spinco or more than 30% of  the consolidated gross assets of such Spinco Group.  The foregoing sentence shall not apply to (A) sales,
transfers, or dispositions of assets in the ordinary course of business, (B) any
cash paid to acquire assets from an unrelated Person in an arm’s-length
transaction, or (C) any assets transferred to a Person that is disregarded
as an entity separate from the transferor for federal income tax purposes or (D) any
mandatory or optional repayment (or pre-payment) of any indebtedness of such
Spinco (or any member of its Spinco Group). 
The percentages of gross assets or consolidated gross assets of such
Spinco or its respective Spinco Group, as the case may be, sold, transferred,
or otherwise disposed of, shall be based on the fair market value of the gross
assets of such Spinco and the members of its respective Spinco Group as of the
Distribution Date of such Spinco.  For
purposes of this Section 4(b)(v), a merger of a Spinco or one of its
Subsidiaries with and into any Person shall constitute a disposition of all of
the assets of such Spinco or such Subsidiary.


 


(vi)          Liquidations, Mergers,
Reorganizations. From and after its respective Distribution until the first
day after the Restriction Period, no Spinco (nor any of its Subsidiaries)
shall, or shall agree to, voluntarily dissolve or liquidate (including
by converting into an entity that is treated as a “disregarded
entity” or partnership for federal income tax purposes) or engage in any
transaction involving a merger (except for a Cash Acquisition Merger),
consolidation or other reorganization; provided, that, mergers of
direct or indirect wholly-owned Subsidiaries of a Spinco solely with and into
such Spinco or with other direct or indirect wholly-owned Subsidiaries of such
Spinco, and liquidations of such Spinco’s wholly-owned subsidiaries are not
subject to this Section 4(b)(vi) to the extent not inconsistent with
the Tax-Free Status of the Spin-Off-Related Transactions.


 


(c)           Permitted Transactions.


 


(i)            Anything in Sections 4(b)(iii) and
4(b)(iv) to the contrary notwithstanding, a Spinco (or any member of its
Group) shall not be prohibited from entering into or consummating a transaction
otherwise prohibited solely by Section 4(b)(iii) or 4(b)(iv), if such
transaction, together with any other transaction or transactions previously
permitted pursuant to this Section 4(c)(i), would not result in one or
more Persons acquiring,  directly
or indirectly, Equity Securities representing a 10% or greater interest, by
vote or value, in such Spinco (or any successor thereto) pursuant to one or
more transactions that have not been approved by Parent pursuant to Section 4(c)(ii).  In the event the transaction at issue is a
redemption or purchase of Equity Securities of a Spinco by such Spinco or a
member of its Spinco Group prior to (or pursuant to an agreement or arrangement
negotiated, in whole or in part, prior to) the first anniversary of the
Distribution Date of such Spinco, such transaction shall be permitted only if
it also satisfies the requirements of Section 4.05(1)(b) of Revenue
Procedure 96-30.


 


19

















 


(ii)           Notwithstanding the restrictions
otherwise imposed by Sections 4(b)(iii) through 4(b)(vi), during the Restriction
Period, a Spinco (the “Requesting Spinco”) may (i) issue, sell,
redeem or otherwise acquire (or cause a member of its respective Spinco Group
to issue, sell, redeem or otherwise acquire) its own Equity Securities or
Equity Securities of any member of its respective Spinco Group in a transaction
that would otherwise breach the covenant set forth in Section 4(b)(iii) (determined
after giving effect to Section 4(c)(i)), (ii) approve, participate
in, support or otherwise permit a proposed business combination or transaction
that would otherwise breach the covenant set forth in Section 4(b)(iv) (determined
after giving effect to Section 4(c)(i)), (iii) sell or otherwise
dispose of its assets or the assets of any member of its respective Spinco
Group in a transaction that would otherwise breach the covenant set forth in Section 4(b)(v),
or (iv) merge itself or any member of its respective Spinco Group with
another entity without regard to which party is the surviving entity in a
transaction that would otherwise breach the covenant set forth in Section 4(b)(vi),
if and only if such transaction would not violate Section 4(b)(i) or Section 4(b)(ii) and
prior to entering into any agreement contemplating a transaction described in
clauses (i), (ii), (iii) or (iv) of this Section 4(c)(ii), and
prior to consummating any such transaction: (X) the Requesting Spinco
obtains Parent’s written consent (which may be withheld in Parent’s sole
discretion), (Y) the Requesting Spinco provides Parent with an Unqualified
Tax Opinion (or, subject to Section 4(d)(iii), a private letter ruling),
in each case, in form and substance satisfactory to Parent in its sole and
absolute discretion exercised in good faith (and in determining whether an
opinion or ruling is satisfactory, Parent may consider, among other factors,
the appropriateness of any underlying assumptions and management’s
representations if used as a basis for the opinion or supplemental ruling), or (Z) the
Requesting Spinco shall request that Parent obtain a private letter ruling (or,
if applicable, a supplemental private letter ruling) in accordance with Section 4(d)(ii) of
this Agreement to the effect that such transaction will not affect the Tax-Free
Status of any of the Spin-Off-Related Transactions and Parent shall have
received such private letter ruling, in form and substance satisfactory to
Parent in its sole and absolute discretion, exercised in good faith.  Notwithstanding the foregoing, with respect
to any action or transaction involving an acquisition of the Requesting Spinco’s
stock entered into at least 18 months after the Distribution Date of the
Requesting Spinco, the Requesting Spinco shall be permitted to consummate such
transaction if it delivers an unconditional officer’s certificate establishing
facts evidencing that such acquisition satisfies the requirements of Safe
Harbor III in Treasury Regulation Section 1.355-7(d), and Parent, after
due diligence, is satisfied with the accuracy of such certification.


 


(d)           Private Letter Rulings and
Restrictions on the Spincos.


 


(i)            Private Letter Ruling at Parent’s
Request.  Parent shall have the right
to obtain a private letter ruling (or, if applicable, a supplemental private
letter ruling) in its sole discretion. 
If Parent determines to obtain a private letter ruling, each Spinco
shall (and shall cause each member of its respective Spinco Group to) cooperate
with Parent and take any and all actions reasonably requested by Parent in
connection with obtaining the private letter ruling (including, without limitation,
by making any representation or covenant or providing any materials or
information requested by any Tax Authority; provided  that none of
the Spincos shall be required to make (or cause any member of their respective
Spinco Groups to make) any representation or covenant that is inconsistent with
historical facts or as to future matters or events over which it has no
control).


 


20
















 


(ii)           Private Letter Rulings at Spinco’s Request.  Parent agrees that at the reasonable request
of a Requesting Spinco pursuant to Section 4(c), Parent shall (and shall
cause each member of the Parent Group to) cooperate with the Requesting Spinco
and use reasonable efforts to seek to obtain, as expeditiously as reasonably
practicable, a private letter ruling (or supplemental private letter ruling)
from the IRS for the purpose of confirming compliance on the part of the
Requesting Spinco or any member of its respective Spinco Group with its
obligations under Section 4(b) of this Agreement.  Further, in no event shall Parent be required
to file any request for a private letter ruling under this Section 4(d)(ii) unless
the Requesting Spinco represents that (A) it has reviewed the request for
the private letter ruling and any materials, appendices and exhibits submitted
or filed therewith, and (B) all information and representations, if any,
relating to any member of the Requesting Spinco’s Spinco Group contained in the
IRS Ruling Documents (if applicable) or Tax Opinion Documents are true, correct
and complete in all material respects. 
The Requesting Spinco shall reimburse Parent for all reasonable costs
and expenses incurred by the Parent Group in obtaining a private letter ruling
requested by the Requesting Spinco within 10 Business Days after receiving an
invoice from Parent therefor.  Each
Spinco hereby agrees that Parent shall have sole and exclusive control over the
process of obtaining a private letter ruling, and that only Parent shall have
the right to apply for a private letter ruling relating to any of the Spin-Off
Related Transactions.  In connection with
obtaining a private letter ruling pursuant to this Section 4(d)(ii),
(A) Parent shall, to the extent practicable, consult with the Requesting
Spinco reasonably in advance of taking any material action in connection
therewith; (B) Parent shall (1) reasonably in advance of the
submission of any documents to the IRS provide the Requesting Spinco with a draft
copy thereof, (2) reasonably consider the Requesting Spinco’s comments on
such documents, and (3) provide the Requesting Spinco with copies of all
documents submitted to or received from the Tax Authority in connection with
such ruling request; and (C) Parent shall provide the Requesting Spinco
with notice reasonably in advance of, and the Requesting Spinco shall have the
right to attend and participate in, any formally scheduled meetings with any
Tax Authority (subject to the approval of the Tax Authority) that relate to
such supplemental private letter ruling.


 


(iii)          Prohibition on the Spincos.  Each Spinco hereby agrees that, except to the
extent permitted by Section 4(d)(ii) or as otherwise consented to by
Parent in writing, neither it nor any member of its respective Spinco Group
shall seek any guidance from the IRS or any other Tax Authority (whether
written, verbal or otherwise) concerning any of the Spin-Off-Related
Transactions (or the impact of any transaction on any of the Spin-Off-Related Transactions).


 


(e)           Liability
of each Spinco for Undertaking Certain Actions.  Notwithstanding anything in this Agreement to
the contrary, each Spinco (a “Responsible Spinco”) and the members of
its respective Spinco Group shall be responsible for any and all Tax-Related
Losses that are attributable to, or result from:


 


(i)            any act or failure to act by the Responsible Spinco or
any member of its respective Spinco Group, which action or failure to act is
inconsistent with any of the covenants set forth in Sections
4(b)(i) through 4(b)(vi) of this Agreement, in each case, determined
without regard to any of the exceptions or provisos contained in such
provisions or in Section 4(c)), expressly including, for this purpose, any
Permitted Transaction and any act or


 


21

















 


failure to act that is inconsistent with
Section 4(b)(i) or 4(b)(ii), regardless of whether such act or
failure to act is permitted by Sections 4(b)(iii) through 4(b)(vi);


 


(ii)           any acquisition or disposition of Equity Securities of the
Responsible Spinco or any member of its respective Spinco Group occurring after
the Distribution of such Spinco by any Person or Persons (including, without
limitation, as a result of an issuance of the Responsible Spinco’s Equity
Securities or a merger of another entity with and into the Responsible Spinco
or any member of its respective Spinco Group) or any acquisition of assets of
the Responsible Spinco or any member of its respective Spinco Group (including,
without limitation, as a result of a merger) occurring after the Distribution
of such Spinco by any Person or Persons; and


 


(iii)          any breach by the Responsible Spinco or any member of its
Spinco Group of a representation or covenant made in this Agreement, the Separation
Agreement, any Ancillary Agreement, or any documents relating to the IRS Ruling
or the Tax Opinions; provided, that (x) in the event that an
IRS Ruling is not obtained with respect to the Distribution of a Spinco, such
Spinco shall not be deemed to make any representations regarding such
Distribution in the IRS Ruling Documents, and (y) no Spinco makes any
representations regarding any facts that, if untrue, would result in Specified
Restructuring Income Taxes (other than representations regarding (1) whether
such Spinco is engaged in the active conduct of a trade or business within the
meaning of Section 355(b) of the Code, (2) such Spinco’s conduct
after the Distribution, and (3) the matters set forth in Section 4(a)(iii) hereof).


 


(f)           Cooperation.


 


(i)            Without limiting the prohibition set forth in
Section 4(d)(iii), until the first day after the Restriction Period, each
Spinco shall furnish Parent with a copy of any ruling request that any member
of its respective Spinco Group may file with the IRS or any other Tax Authority
and any opinion received that in any respect relates to, or otherwise
reasonably could be expected to have any effect on, the Tax-Free Status of any
of the Spin-Off-Related Transactions with respect to such Spinco.


 


(ii)           Each Party shall reasonably cooperate with the Requesting
Spinco in connection with any request by the Requesting Spinco for an
Unqualified Tax Opinion  pursuant to
Section 4(c)(ii).


 


(iii)          Until the first day after the Restriction Period, each
Spinco shall provide adequate advance notice to Parent in accordance with the
terms of Section 4(f)(iv) of any action described in Sections
4(b)(i) through 4(b)(vi) within a period of time sufficient to enable
Parent to seek injunctive relief pursuant to Section 4(g) in a court
of competent jurisdiction; provided that Tree Spinco shall not be
required to provide advance notice with respect to any action described in
Sections 4(b)(iii) through 4(b)(vi) with respect to which Tree Spinco
is not subject to restrictions.


 


(iv)          Each notice required by Section 4(f)(iii) shall
set forth the terms and conditions of any such proposed transaction, including,
without limitation, (A) the nature of any related action proposed to be
taken by the board of directors of such Spinco, (B)


 


22

















 


the approximate number of Equity Securities (and
their voting and economic rights) of such Spinco or any member of its
respective Spinco Group (if any) proposed to be sold (or otherwise issued) or
acquired, (C) the approximate value of such Spinco’s assets (or assets of
any member of its respective Spinco Group) proposed to be transferred, and
(D) the proposed timetable for such transaction, all with sufficient
particularity to enable Parent to seek such injunctive relief.  Promptly, but in any event within 30 days,
after Parent receives such written notice from such Spinco, Parent shall notify
such Spinco in writing of Parent’s decision to seek injunctive relief pursuant to
Section 4(g).


 


(v)           From and after its respective Distribution until the first
day after the Restriction Period, no Spinco nor any member of its respective
Spinco Group shall take (or refrain from taking) any action to the extent that
such action or inaction would have caused a representation made with respect to
such Spinco in connection with the IRS Ruling (but only if such IRS Ruling was
received) and/or the Tax Opinions to have been untrue as of the relevant
representation date, had such Spinco or any member of its respective Spinco
Group intended to take (or refrain from taking) such action on the relevant
representation date.


 


(g)           Enforcement.  The
Parties acknowledge that irreparable harm would occur in the event that any of
the provisions of this Section 4 were not performed in accordance with
their specific terms or were otherwise breached.  The Parties agree that, in order to preserve
the Tax-Free Status of the Spin-Off-Related Transactions, injunctive relief is
appropriate to prevent any violation of the foregoing covenants; provided,
however, that injunctive relief shall not be the exclusive legal or
equitable remedy for any such violation.


 


5.            Refunds.  Parent
shall be entitled to all Refunds (and any interest thereon received from the
applicable Tax Authority) in respect of Taxes paid with respect to any Tax
Return for which Parent or any member of the Parent Group is responsible
pursuant to Section 2.  Each Spinco
shall be entitled to all Refunds (and any interest thereon received from the
applicable Tax Authority) in respect of Taxes paid with respect to any Tax
Return for which it or members of its respective Spinco Group are responsible
pursuant to Section 2. 
Notwithstanding the foregoing, in the event a Party obtains a Refund of
Taxes for which it was indemnified by another Party (other than Taxes for which
a Spinco is responsible pursuant to Section 2(a)(iii)), the indemnifying
Party shall be entitled to such Refund. 
A Party receiving a Refund to which another Party is entitled pursuant
to this Section 5 shall pay the amount to which such other Party is
entitled within fifteen Business Days after such Refund is Actually
Realized.  The Parties shall cooperate
with each other in connection with any claim for a Refund in respect of a Tax
for which any member of their respective Groups is responsible pursuant to
Section 2.


 


6.            Tax Contests.


 


(a)           Notification. 
Each Party shall notify the other Parties in writing of any
communication with respect to any pending or threatened Proceeding in
connection with a Tax Liability (or any issue related thereto) of any Party or
member of its Group, for which another Party or member of its Group, may be
responsible pursuant to this Agreement within ten (10) Business Days of
receipt; provided, however, that in the case of any
Distribution-Related Proceeding (no matter which Party is responsible), such
notice shall be provided no later than ten


 


23

















 


(10) Business Days after such
Party first receives written notice from the IRS or other Tax Authority of such
Distribution-Related Proceeding.  The
notifying Party shall include with such notification a true, correct and
complete copy of any written communication, and an accurate and complete
written summary of any oral communication, received by such notifying Party or
member of its Group.  The failure of one
Party to notify the other Parties of such communication in accordance with the
immediately preceding sentence shall not relieve such other Party of any
liability or obligation that it may have under this Agreement, except to the
extent that the failure timely to forward such notification actually prejudices
the ability of such other Party to contest such Income Tax Liability or Other
Tax Liability or increases the amount of such Income Tax Liability or Other Tax
Liability.


 


(b)          Representation with Respect to Tax Disputes.  Parent (or such member of the Parent Group as
Parent shall designate) shall have the sole right to administer and control and
to employ counsel of its choice at its expense in any Proceeding (including any
Distribution-Related Proceeding) relating to (i) any consolidated federal
Income Tax Returns of the Parent Consolidated Group, (ii) any other
Combined Returns and (iii) any Parent Separate Returns.  Each Spinco (or such member of its respective
Spinco Group as such Spinco shall designate) shall have the sole right to
administer and control and to employ counsel of its choice at its expense in
any Proceeding (excluding any Distribution-Related Proceeding) relating to its
respective Spinco Consolidated Return or Spinco Separate Return.


 


(c)           Power of Attorney. 
Each Spinco (and members of its respective Group) shall execute and
deliver to Parent (or such member of the Parent Group as Parent shall
designate) any power of attorney or other document requested by Parent (or such
designee) in connection with any Proceeding described in the first sentence of
Section 6(b).


 


(d)          Distribution-Related Proceedings.


 


(i)            In the event of any Distribution-Related Proceeding as a
result of which a Spinco could reasonably be expected to become liable for any
Tax or Tax-Related Losses (each, a “Participating Spinco”) and which
Parent has the right to administer and control pursuant to
Section 6(b) above, (A) Parent shall consult with each
Participating Spinco reasonably in advance of taking any significant action in
connection with such Proceeding, (B) Parent shall offer each Participating
Spinco a reasonable opportunity to comment before submitting any written
materials prepared or furnished in connection with such Proceeding,
(C) Parent shall defend such Proceeding diligently and in good faith as if
it were the only party in interest in connection with such Proceeding, and
(D) Parent shall provide each Participating Spinco copies of any written
materials relating to such Proceeding received from the relevant Tax
Authority.  Notwithstanding anything in
the preceding sentence to the contrary, the final determination of the
positions taken, including with respect to settlement or other disposition, in
any Distribution-Related Proceeding shall be made in the sole discretion of
Parent and shall be final and not subject to the dispute resolution provisions
of Article 9 of the Separation Agreement.


 


(ii)           In the event of any Distribution-Related Proceeding with
respect to any  Spinco Separate Return,
(A) such Spinco shall consult with Parent reasonably in advance of taking
any significant action in connection with such Proceeding, (B) such Spinco


 


24

















 


shall consult with Parent and offer Parent a
reasonable opportunity to comment before submitting any written materials
prepared or furnished in connection with such Proceeding, (C) such Spinco
shall defend such Proceeding diligently and in good faith as if it were the
only party in interest in connection with such Proceeding, (D) Parent
shall be entitled to participate in such Proceeding and receive copies of any
written materials relating to such Proceeding received from the relevant Tax
Authority, and (E) such Spinco shall not settle, compromise or abandon any
such Proceeding without obtaining the prior written consent of Parent, which
consent shall not be unreasonably withheld.


 


7.            Apportionment of Tax Attributes; Carrybacks.


 


(a)          Apportionment of Tax Attributes.


 


(i)            If the Parent Consolidated Group has a Tax Attribute, the
portion, if any, of such Tax Attribute apportioned to any Spinco or the members
of its respective Spinco Consolidated Group and treated as a carryover to the
first Post-Distribution Taxable Period of such Spinco (or such member) shall be
determined by Parent in accordance with Treasury Regulation Sections 1.1502-21,
1.1502-21T, 1.1502-22, 1.1502-79 and, if applicable, 1.1502-79A.


 


(ii)           No Tax Attribute with respect to consolidated federal
Income Tax of the Parent Consolidated Group, other than those described in
Section 7(a)(i), and no Tax Attribute with respect to consolidated,
combined or unitary state, local, or foreign Income Tax, in each case, arising
in respect of a Combined Return shall be apportioned to any Spinco or any
member of its respective Spinco Group, except as Parent (or such member of the
Parent Group as Parent shall designate) determines is otherwise required under
applicable law.


 


(iii)          Parent (or its designee) shall determine the portion, if
any, of any Tax Attribute which must (absent a Final Determination to the
contrary) be apportioned to a Spinco or any member of its respective Spinco
Group in accordance with this Section 7(a) and applicable law, and
the amount of tax basis and earnings and profits to be apportioned to such
Spinco or any member of its respective Spinco Group in accordance with
applicable law, and shall provide written notice of the calculation thereof to
such Spinco as soon as reasonably practicable after the information necessary
to make such calculation becomes available to Parent.


 


(iv)          The written notice delivered by Parent pursuant to
Section 7(a)(iii) shall be binding on each Spinco Group and shall not
be subject to dispute resolution. Except as otherwise required by a change in
applicable law or pursuant to a Final Determination, no Spinco shall take any
position (whether on a Tax Return or otherwise) that is inconsistent with the
information contained in such written notice.


 


(b)          Carrybacks. 
Except to the extent otherwise consented to by Parent or prohibited by
applicable law, each Spinco shall elect to relinquish, waive or otherwise forgo
all Carrybacks.  In the event that a
Spinco (the “Carryback Spinco”), or the appropriate member of its
respective Spinco Group, is prohibited by applicable law to relinquish, waive
or otherwise forgo a Carryback (or Parent consents to a Carryback),
(i) each Party shall cooperate with the Carryback Spinco, at the Carryback
Spinco’s expense, in seeking from the appropriate Tax


 


25

















 


Authority such Refund as reasonably
would result from such Carryback, and (ii) the Carryback Spinco shall be
entitled to any Income Tax Benefit Actually Realized by a member of another
Group (including any interest thereon received from such Tax Authority), to the
extent that such Refund is directly attributable to such Carryback, within 15
Business Days after such Refund is Actually Realized; provided, however,
that the Carryback Spinco shall indemnify and hold the members of the other
Party’s Group harmless from and against any and all collateral tax consequences
resulting from or caused by any such Carryback, including (but not limited to)
the loss or postponement of any benefit from the use of tax attributes generated
by a member of the other Party’s Group or an Affiliate thereof if (x) such
tax attributes expire unutilized, but would have been utilized but for such
Carryback, or (y) the use of such tax attributes is postponed to a later
taxable period than the taxable period in which such tax attributes would have
been utilized but for such Carryback.  If
there is a Final Determination that results in any change to or adjustment of
an Income Tax Benefit Actually Realized by a member of the other Party’s Group that
is directly attributable to a Carryback, then the other Party (or its designee)
shall make a payment to the Carryback Spinco, or the Carryback Spinco shall
make a payment to the other Party (or its designee), as may be necessary to
adjust the payments between the Carryback Spinco and the other Party (or its
designee) to reflect the payments that would have been made under this
Section 7(b) had the adjusted amount of such Income Tax Benefit been
taken into account in computing the payments due under this Section 7(b).


 


8.           Cooperation and Exchange of Information.


 


(a)           Cooperation
and Exchange of Information.  Each
Party, on behalf of itself and the members of its Group, agrees to provide each
other Party (or its designee) with such cooperation or information as such
other Party (or its designee) reasonably shall request in connection with the
determination of any payment or any calculations described in this Agreement,
the preparation or filing of any Tax Return or claim for Refund, or the conduct
of any Proceeding.  Such cooperation and
information shall include, without limitation, upon reasonable notice
(i) promptly forwarding copies of appropriate notices and forms or other
communications (including, without limitation, information document requests,
revenue agent’s reports and similar reports, notices of proposed adjustments
and notices of deficiency) received from or sent to any Tax Authority or any
other administrative, judicial or governmental authority, (ii) providing
copies of all relevant Tax Returns, together with accompanying schedules and
related workpapers, documents relating to rulings or other determinations by
any Tax Authority, and such other records concerning the ownership and tax
basis of property, or other relevant information, (iii) the provision of
such additional information and explanations of documents and information
provided under this Agreement (including statements, certificates, forms,
returns and schedules delivered by either party) as shall be reasonably
requested by any of the other Parties (or their designee), (iv) the
execution of any document that may be necessary or reasonably helpful in
connection with the filing of a Tax Return, a claim for a Refund, or in
connection with any Proceeding, including such waivers, consents or powers of
attorney as may be necessary for the other Party to exercise its rights under
this Agreement, and (v) the use of the Party’s reasonable efforts to
obtain any documentation from a governmental authority or a third party that
may be necessary or reasonably helpful in connection with any of the
foregoing.  It is expressly the intention
of the Parties to take all actions that shall be necessary to establish Parent
as the sole agent for Tax purposes of each member of the Spinco Groups with
respect to all


 


26

















 


Combined Returns.  Upon reasonable notice, each Party shall make
its, or shall cause the members of its respective Group, as applicable, to make
their, employees and facilities available on a mutually convenient basis to
provide explanation of any documents or information provided hereunder.  Any information obtained under this
Section 8 shall be kept confidential, except as otherwise reasonably may
be necessary in connection with the filing of Tax Returns or claims for Refund
or in conducting any Proceeding.


 


(b)           Retention
of Records. The Parties each agree to retain all Tax Returns, related
schedules and workpapers, and all material records and other documents as
required under Section 6001 of the Code and the regulations promulgated
thereunder (and any similar provision of state, local, or foreign law) existing
on the date hereof or created in respect of (i) any taxable period that
ends on or before or includes the Distribution Date or (ii) any taxable
period that may be subject to a claim hereunder until the later of (A) the
expiration of the statute of limitations (including extensions) for the taxable
periods to which such Tax Returns and other documents relate and (B) the
Final Determination of any payments that may be required in respect of such
taxable periods under this Agreement. 
From and after the end of the period described in the preceding sentence
of this Section 8(b), if a Party or a member of its respective Group
wishes to dispose of any such records and documents, then such Party shall
provide written notice thereof to the other Parties and shall provide the other
Parties the opportunity to take possession of any such records and documents
within 90 days after such notice is delivered; provided, however,
that if no other Party, within such 90-day period, confirms its intention to
take possession of such records and documents, then the Party wishing to
destroy or otherwise dispose of such records and documents may do so.


 


(c)           Remedies.
 Each of the Parties hereby acknowledges
and agrees that (i) the failure of any member of its respective Group to
comply with the provisions of this Section 8 may result in substantial
harm to the other Parties, including the inability to determine or appropriately
substantiate a Tax Liability (or a position in respect thereof) for which a
Party (or a member of its respective Group) would be responsible under this
Agreement or appropriately defend against an adjustment thereto by a Tax
Authority, (ii) the remedies available to one Party (the “Injured Party”)
for the breach by a member of another Party (the “Breaching Party”) of
its obligations under this Section 8 shall include (without limitation)
the indemnification by the Breaching Party of the Injured Party for any Tax
Liabilities incurred or any tax benefit lost or postponed by reason of such
breach and the forfeiture by the Breaching Party of any related rights to
indemnification by the Injured Party.


 


(d)           Reliance.  If any member of a Group supplies (“Supplying
Party”)  information to a member of another Group (“Relying Party”)
in connection with a Tax Liability and an officer of a member of the Relying
Party signs a statement or other document under penalties of perjury in
reliance upon the accuracy of such information, then upon the written request
of the member of the Relying Party identifying the information being so relied
upon, the chief financial officer of Supplying Party (or his or her designee)
shall certify in writing that to his knowledge (based upon consultation with
appropriate employees) the information so supplied is accurate and
complete.  Each Party agrees to indemnify
and hold harmless each member of the other Groups and its directors, officers
and employees from and against any fine, penalty, or other cost or expense of
any kind attributable to a member of its respective Group having


 


27

















 


supplied, pursuant to this
Section 8, a member of another Group with inaccurate or incomplete
information in connection with a Tax Liability.


 


9.            Resolution of Disputes.  The provisions of Article 9
of the Separation Agreement (Dispute Resolution) shall apply to any dispute
arising in connection with this Agreement; provided, however,
that in the case of disputes arising under this Agreement, the relevant
Parties shall jointly select the arbitrator, who shall be an attorney or
accountant who is generally recognized in the tax community as a qualified and
competent tax practitioner with experience in the tax area involved in the
issue or issues to be resolved.


 


10.          Payments.


 


(a)           Method
of Payment.  All payments required by
this Agreement shall be made by (i) wire transfer to the appropriate bank
account as may from time to time be designated by the Parties for such purpose;
provided  that, on the date of such wire transfer, notice of the
transfer is given to the recipient thereof in accordance with Section 11,
or (ii) any other method agreed to by the Parties.  All payments due under this Agreement shall
be deemed to be paid when available funds are actually received by the payee.


 


(b)           Interest.  Any payment required by this Agreement that
is not made on or before the date required hereunder shall bear interest, from
and after such date through the date of payment, at the Underpayment Rate.


 


(c)           Characterization
of Payments.  For all Income Tax
purposes, the Parties agree to treat, and to cause their respective Affiliates
to treat, (i) any payment required by this Agreement or by the Separation
Agreement, by (A) Parent to any of the Spincos as a contribution by Parent
to the appropriate Spinco occurring immediately prior to the Distribution of
such Spinco, (B) a Spinco to Parent as a distribution by such Spinco
occurring immediately prior to the Distribution of such Spinco, and (C) a
Spinco to another Spinco as a distribution by the first Spinco to Parent
occurring immediately before the Distribution of the first Spinco followed by a
contribution by Parent to the recipient Spinco occurring immediately before the
Distribution of the second Spinco; and (ii) any payment of interest or
non-federal Income Taxes by or to a Tax Authority, as taxable or deductible, as
the case may be, to the Party entitled under this Agreement to retain such
payment or required under this Agreement to make such payment, in either case,
except as otherwise mandated by applicable law or a Final Determination; provided
that in the event it is determined (A) pursuant to applicable law
that it is more likely than not, or (B) pursuant to a Final Determination,
that any such treatment is not permissible (or that an Indemnified Party
nevertheless suffers a Tax detriment as a result of such payment), the payment
in question shall be adjusted to place the Indemnified Party in the same
after-tax position it would have enjoyed absent such applicable law or Final
Determination.


 


11.          Compensatory Equity Interests.


 


(a)           Allocation
of Deductions.  To the extent
permitted by applicable law, Income Tax deductions arising by reason of
exercises of Options to acquire Parent or Spinco stock, vesting of “restricted”
Parent stock or Spinco stock, or settlement of restricted stock units or
Delayed Common Stock (whether settled in cash or shares), in each case,
following the 


 


28

















 


Distributions, with respect to Parent stock or
Spinco stock (such Options, restricted stock, restricted stock units and
Delayed Common Stock, collectively, “Compensatory Equity Interests”)
held by any Person shall be claimed (i) in the case of an active employee,
solely by the Party that employs such Person at the time of exercise, vesting,
or settlement, as applicable, and (ii) in the case of a former employee,
solely by the Party that last employed such Person (the Party described in clause
(i) or (ii), the “Employing Party”).


 


(b)           Withholding and Reporting.  The Employing Party (or any of its
Affiliates) that is entitled to claim the Tax deductions described in
11(a) with respect to Compensatory Equity Interests held by a current or
former employee shall be responsible for all applicable Taxes (including, but
not limited to, withholding and excise taxes) and shall satisfy, or shall cause
to be satisfied, all applicable Tax reporting obligations with respect to such
Compensatory Equity Interests; provided, that in the event
Compensatory Equity Interests are settled by the issuing corporation on a “net
basis” that takes into account withholding or other Taxes for which the holder
of the Compensatory Equity Interest is responsible, the issuing corporation
shall promptly remit to the Employing Party an amount of cash equal to the fair
market value of the shares withheld by the issuing corporation in respect of
such withholding or other Taxes.


 


12.           Notices. 
Notices, requests, permissions, waivers, and other communications
hereunder shall be in writing and shall be deemed to have been duly given upon
(a) a transmitter’s confirmation of a receipt of a facsimile transmission
(but only if followed by confirmed delivery of a standard overnight courier the
following Business Day or if delivered by hand the following Business Day), or
(b) confirmed delivery of a standard overnight courier or delivered by
hand, to the parties at the following addresses (or at such other addresses for
a party as shall be specified by like notice):


 


If to Parent, to:


 


IAC/InterActiveCorp

555 West 18th Street

New York, NY  10011

Attention:  General Counsel

Telecopier:  (212) 632-9642


 


with a copy to:


 


Wachtell, Lipton, Rosen & Katz

51 West 52nd Street

New York, NY  10019

Attention:  Pamela S. Seymon, Esq.

Telecopier:  (212) 403-2000


 


29

















 


If to TM Spinco:


 


Ticketmaster


8800
Sunset Boulevard


West
Hollywood, California 90069


Attention:
General Counsel


Telecopier:  (310) 360-3373


 


If to Interval Spinco:


 


Interval
Leisure Group, Inc.


6262
Sunset Drive


Miami,
Florida 33143


Attention:
General Counsel


Telecopier:  (305) 667-2072


 


If to HSN Spinco:


 


1
HSN Drive


St.
Petersburg, Florida 33729


Attention:
General Counsel


Telecopier:  (727) 872-6866


 


If to Tree Spinco:


 


11115
Rushmore Drive


Charlotte,
North Carolina 28277


Attention:
General Counsel


Telecopier:  (949) 255-5139


 


Such
names and addresses may be changed by notice given in accordance with this Section 12.


 


13.           Designation of Affiliate.  Each of the Parties may assign
any of its rights or  obligations under this Agreement
to any member of its respective Group as it shall designate; provided,
however, that no such assignment shall relieve the Party making the
assignment of any obligation hereunder, including any obligation to make a
payment hereunder to another Party, to the extent such designee fails to make
such payment.


 


14.           Miscellaneous.  Except to the extent otherwise
provided in this Agreement, this Agreement shall be subject to the provisions
of Article 13 (Miscellaneous) of the Separation Agreement to the extent
set forth therein.


 


30

















 


IN
WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed
on its behalf by its officers thereunto duly authorized, all as of the day and
year first written above.


 


	
   

  	
  IAC/INTERACTIVECORP

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gregory Blatt

  
	
   

  	
   

  	
  Name:

  	
  Gregory R. Blatt

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  TICKETMASTER

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joanne Hawkins

  
	
   

  	
   

  	
  Name:

  	
  Joanne Hawkins

  
	
   

  	
   

  	
  Title:

  	
  Vice President and
  Assistant Secretary

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  INTERVAL LEISURE GROUP,
  INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joanne Hawkins

  
	
   

  	
   

  	
  Name:

  	
  Joanne Hawkins

  
	
   

  	
   

  	
  Title:

  	
  Vice President and
  Assistant Secretary

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  HSN, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Tanya Stanich

  
	
   

  	
   

  	
  Name:

  	
  Tanya Stanich

  
	
   

  	
   

  	
  Title:

  	
  Vice President and
  Assistant Secretary

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  TREE.COM, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Tanya Stanich

  
	
   

  	
   

  	
  Name:

  	
  Tanya Stanich

  
	
   

  	
   

  	
  Title:

  	
  Vice President and
  Assistant Secretary

  



 


[Signature Page to Tax Sharing Agreement]