EX-10.3



 







    Exhibit 10.3



 




    AMENDED
    AND RESTATED

    TAX SHARING AND INDEMNITY AGREEMENT



 



    This AMENDED AND RESTATED TAX SHARING AND INDEMNITY AGREEMENT
    (the “Agreement”), is effective the 1st day of
    November, 2007, by and between ZAPATA CORPORATION
    (“Zapata”), a Nevada corporation, and ZAP.COM
    CORPORATION (“ZAP.COM”), a Nevada corporation.



 




    R E C I T
    A L S:



 



    A. Zapata, a public company, whose common shares are traded
    on the New York Stock Exchange, owns 48,972,258 shares of
    ZAP.COM’s common stock, par value $.001 per share,
    constituting approximately ninety-eight percent (98%) of the
    issued and outstanding common stock of ZAP.COM.



 



    B. Zapata is the parent of an affiliated group of
    corporations, including ZAP.COM, that join in filing
    consolidated federal Tax Returns and certain consolidated,
    combined or unitary state income Tax Returns;



 



    C. Zapata and ZAP.COM entered into a Tax Sharing and
    Indemnity Agreement dated October 20, 1999 (the
    “Original Agreement”).



 



    D. The tax year for Zapata, as parent of an affiliated
    group of corporations, including ZAP.COM, was changed from a
    fiscal year ended September 30th, to a calendar year ended
    December 31st. Accordingly, Zapata filed a consolidated tax
    return for federal purposes for the short period beginning
    October 1, 2002 through December 31, 2002. As a result
    of the change in tax year, the Original Agreement needs to be
    restated to correspond with the current tax period beginning
    January 1st and ending December 31st.



 



    NOW, THEREFORE, in consideration of their mutual promises,
    Zapata and ZAP.COM agree as follows:



 




    ARTICLE 1

    



 




    DEFINITIONS
    



 



    1.1  As used in this Agreement, the following terms
    shall have the following meanings:



 



    “Code” means the Internal Revenue Code of 1986,
    as amended, or any successor thereto, as in effect for the
    taxable period in question.



 



    “Consolidated Group” means the group of
    corporations that immediately prior to the Effective Date are
    members of the affiliated group of corporations (within the
    meaning of Section 1504 of the Code) of which Zapata is the
    common parent.



 



    “Effective Date” means the date upon which
    Zapata ceases to own eighty percent (80%) of the issued and
    outstanding shares of ZAP.COM.



 



    “Final Determination” shall mean the final
    resolution of liability for any Tax for a taxable period,
    including any related interest or penalties, (a) by
    Internal Revenue Service Form 870 or
    870-AD (or
    any successor forms thereto), on the date of acceptance by or on
    behalf of the Internal Revenue Service (“IRS”), or by
    a comparable form under the laws of other jurisdictions; except
    that a Form 870 or
    870-AD or
    comparable form that reserves (whether by its terms or by
    operation of law) the right of the taxpayer to file a claim for
    refund
    and/or the
    right of the Taxing Authority to assert a further deficiency
    shall not constitute a Final Determination; (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 Section 7121 or 7122 of the Code, or comparable
    agreements under the laws of other jurisdictions; (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 Tax imposing jurisdiction; or (e) by any other final
    disposition, including by reason of the expiration of the
    applicable statute of limitations.




    

    34








 






    “Representative” means with respect to any
    person or entity, any of such person’s or entity’s
    directors, officers, employees, agents, consultants, advisors,
    accountants, attorneys, and representatives.



 



    “Tax” or “Taxes” means
    (a) all forms of taxation, whenever created or imposed, and
    whenever imposed by a national, municipal, governmental, state,
    federal or other body, whether domestic or foreign (a
    “Taxing Authority”), and without limiting the
    generality of the foregoing, shall include net income,
    alternative or add-on minimum tax, gross income, sales, use, ad
    valorem, gross receipts, value added, franchise, profits,
    license, transfer, recording, withholding, payroll, employment,
    excise, severance, stamp, occupation, premium, property,
    windfall profit, custom duty, or other tax, governmental fee or
    other like assessment or charge of any kind whatsoever, together
    with any related interest, penalties, or other additions to tax,
    or additional amounts imposed by any such Taxing Authority,
    (b) liability for the payment of any amounts of the type
    described in (a) as a result of being a member of an
    affiliated, consolidated, combined or unitary group for any
    period, including any liability arising pursuant to Treas. Reg.
    Section 1.1502-6,
    or as a result of being a party to any agreement or arrangement
    whereby liability for payment of such amounts was determined or
    taken into account with reference to the liability of another
    party and (c) liability for the payment of any amounts of
    the type described in (a) as a result of any express or
    implied obligation to indemnify any other person.



 



    “Taxing Authority” is defined under the term
    “Taxes.”



 



    “Taxable Period” or “Taxable
    Periods” means the tax year for the “Consolidated
    Group” as defined in this Article 1.



 



    “Tax Return” means any return, filing,
    questionnaire or other document required to be filed, including
    requests for extensions of time, filings made with estimated Tax
    payments, claims for refund and amended returns that may be
    filed, for any taxable period with any Taxing Authority in
    connection with any Tax (whether or not a payment is required to
    be made with respect to such filing).



 



    “ZAP.COM Businesses” means the present and
    future subsidiaries, divisions and business of ZAP.COM and any
    member of the ZAP.COM Post-Closing Affiliates.



 



    “ZAP.COM Post-Closing Affiliate” means any
    corporation, partnership or other entity directly or indirectly
    controlled by ZAP.COM after the Effective Date.



 



    “ZAP.COM Pre-Closing Affiliate” means any
    corporation, partnership or other entity directly or indirectly
    controlled by ZAP.COM on or before the Effective Date.



 



    “Zapata Affiliate” means any corporation,
    partnership or other entity directly or indirectly controlled by
    Zapata, other than ZAP.COM or any ZAP.COM Affiliate.



 



    “Zapata Businesses” means the present and
    future subsidiaries, divisions and business of any member of the
    Zapata Group, other than the present and future subsidiaries,
    divisions and business of ZAPCOM or any ZAP.COM Post-Closing
    Affiliates.



 



    “Zapata Group” means the group of corporations
    that immediately after the Effective Date are members of the
    affiliated group of corporations of which Zapata is the common
    parent (within the meaning of section 1504 of the Code).



 




    ARTICLE 2

    



 




    PREPARATION
    AND FILING OF TAX RETURNS
    



 



    2.1  Income Included. All Tax Returns required to be
    filed by the Consolidated Group relating to Taxable Periods
    ending before or including the Effective Date and filed after
    the date of this Agreement shall include the income of ZAP.COM
    and ZAP.COM Pre-Closing Affiliates (as determined in this
    Section 2.1) attributable to such Taxable Periods
    (including, for Federal income Tax purposes, any deferred income
    triggered into income by Treas. Reg.
    Section 1.1502-13
    and any excess loss accounts taken into income under Treas. Reg.
    Section 1.1502-19)
    required to be reported in the Consolidated Group’s
    consolidated Federal income Tax Returns (or under any similar
    rules applicable to any state, local or other Tax Returns filed
    on a consolidated basis). The income of ZAP.COM and




    

    35








 






    ZAP.COM Pre-Closing Affiliates will be apportioned for the Tax
    period commencing January 1, up to and including the
    Effective date and the period after the Effective Date by
    closing the books of ZAP.COM and such ZAP.COM Pre-Closing
    Affiliates as of the end of the Effective Date. The income of
    ZAP.COM and any ZAP.COM Pre-Closing Affiliate shall not include
    any deferred income triggered into income by Treas. Reg.
    Section 1.1502-13
    and any excess loss accounts taken into income under Treas. Reg.
    Section 1.1502-19,
    attributable to any other member of the Consolidated Group.



 



    2.2  Tax Returns for Taxable Periods Ending Before or
    Including the Effective Date. Except as otherwise provided in
    Section 2.4, Zapata shall timely prepare and file, or cause
    to be timely prepared and filed, all Tax Returns required to be
    filed by or on behalf of any member of the Consolidated Group
    relating to Taxable Periods ending before or including the
    Effective Date. ZAP.COM shall provide Zapata any Tax-related
    information reasonably requested by Zapata relating to any
    Taxable Periods ending on or before the Effective Date.



 



    2.3  Tax Returns for Taxable Periods Beginning After
    the Effective Date. ZAP.COM shall prepare and file, or cause to
    be prepared and filed, all Tax Returns for ZAP.COM and any
    ZAP.COM Post-Closing Affiliate for taxable periods of ZAP.COM
    and any ZAP.COM Post-Closing Affiliate beginning after the
    Effective Date. Zapata shall prepare and file, or cause to be
    prepared and filed, all Tax Returns for the Zapata Group for
    Taxable Periods beginning after the Effective Date.



 



    2.4  Carry-Over Period Returns.



 



    (a) ZAP.COM shall prepare and file on a timely basis any
    Tax Returns (but not including any Federal income Tax Return or
    Tax Returns under any similar rules applicable to any state or
    local, and filed on a consolidated basis) of ZAP.COM and any
    ZAP.COM Pre-Closing Affiliate for any Taxable Period beginning
    before and ending after the Effective Date (a “Carry-Over
    Period”).



 



    (b) All other Tax Returns for a Carry-Over Period required
    to be filed by any member of the Consolidated Group other than
    ZAP.COM or any ZAP.COM Pre-Closing Affiliate shall be prepared
    and filed by Zapata.



 




    ARTICLE 3

    



 




    PAYMENT OF
    TAXES
    



 



    3.1  Liability for Taxes With Respect to Taxable
    Periods Ending Before or Including the Effective Date. Except as
    otherwise provided in this Agreement, Zapata shall be
    responsible for paying and shall pay all Taxes relating to any
    Tax Return filed by the Consolidated Group or any member thereof
    with respect to any Taxable Period ending before and including
    the Effective Date, including without limitation, any additional
    Taxes as a result of any audit, amendment or other change in a
    Tax Return as filed by the Consolidated Group or any member
    thereof. Zapata shall be entitled to all Tax refunds received or
    receivable with respect to any and all Taxes attributable to the
    Consolidated Group for all such taxable years and periods ending
    before including the Effective Date.



 



    3.2  Preparation of ZAP.COM’s Final Returns;
    Payment of Taxes. On or before the Effective Date Zapata shall
    cause to be prepared (in a manner consistent with practices
    followed in prior years) and delivered to ZAP.COM a separate
    United States Federal Income Tax Return for ZAP.COM and each
    ZAP.COM Pre-Closing Affiliate for the Tax period beginning
    January 1, and ending on the Effective Date (the
    “ZAP.COM Final Returns”). The ZAP.COM Final Returns
    shall include all items of income, gain, loss, deductions and
    credit of ZAP.COM and the ZAP.COM Pre-Closing Affiliates
    realized during such period and determined and apportioned in
    accordance with Section 2.1. Zapata shall include in its
    consolidated federal income tax for its first taxable year
    ending after the Effective Date the items of income, gain, loss,
    deductions and credit shown on the ZAP.COM Final Returns and
    shall pay all Taxes due with respect thereto as provided in this
    Section 3.2 and Section 3.1.



 



    3.3  Separation Payment With Respect to Federal Income
    Taxes. Zapata shall give ZAP.COM notice of the filing of
    Zapata’s consolidated federal income tax returns for its
    first taxable year ending after the Effective Date (“Final
    Return Notice”). If the ZAP.COM Final Returns show a tax
    liability, ZAP.COM shall pay to Zapata the amount thereof within
    thirty (30) days after receipt by ZAP.COM of the Final
    Return Notice. Zapata shall not withdraw any earnings or assets
    of ZAP.COM or any ZAP.COM Pre-Closing Affiliates prior to the
    Effective Date. If the ZAP.COM Final Returns show a net
    operating loss or other tax benefit that is utilized by Zapata
    or any member




    

    36








 






    of the Zapata Group and, therefore, is not allocated to the
    entity incurring such tax benefit pursuant to Treas. Reg.
    Section 1.1502-79,
    Zapata shall pay to ZAP.COM (or the appropriate entity) the
    amount of any tax savings to be realized thereby within thirty
    (30) days after receipt by ZAP.COM of the ZAP.COM Final
    Returns.



 



    3.4  Allocation of Earnings and Profits for Taxable
    Periods Ending Before or Including the Effective Date. All
    earnings and profits of the Consolidated Group for all Taxable
    Periods ending before or including the Effective Date shall be
    allocated pursuant to Section 1552 of the Code among the
    members of the Consolidated Group in accordance with the ratio
    which that portion of the consolidated taxable income
    attributable to each member of the Consolidated Group having
    taxable income bears to the consolidated taxable income of the
    Consolidated Group in accordance with Section 1552(a)(1) of
    the Code and the Regulations thereunder.



 



    3.5  Unused Carry-Forward Attributes. Zapata and
    ZAP.COM agree that, for purposes of all required returns and
    reports with respect to Taxes, the amount of unused tax credits
    under the Code attributable to ZAP.COM and each of the ZAP.COM
    Pre-Closing Affiliates that may be carried forward to Taxable
    Periods ending after the Effective Date shall, unless otherwise
    required by law or regulations, be determined in accordance with
    the principles of Treas. Reg.
    Section 1.1502-79(c).
    Any other carry-forward attributes shall similarly be determined
    in accordance with applicable regulations.



 



    3.6  Liability for Taxes With Respect to
    Post-Effective Date Taxable Periods. The Zapata Group shall pay
    all Taxes of the Zapata Group and shall be entitled to receive
    and retain all refunds of Taxes of the Zapata Group with respect
    to Taxable Periods beginning after the Effective Date which are
    attributable to the Zapata Businesses. ZAP.COM shall pay all
    Taxes of ZAP.COM and any ZAP.COM Post-Closing Affiliate and
    shall be entitled to receive and retain all refunds of Taxes of
    ZAP.COM and any ZAP.COM Post-Closing Affiliate for all periods
    beginning after the Effective Date which are attributable to the
    ZAP.COM Businesses.



 



    3.7  Carry-Over Period Payments. Zapata shall be
    responsible for (and shall pay) any Taxes shown to be due on a
    Tax Return for a Carry-Over Period filed pursuant to
    Section 2.4(b) hereof by any member of the Consolidated
    Group other than ZAP.COM or a ZAP.COM Pre-Closing Affiliate.
    ZAP.COM shall be responsible for (and shall pay) any Taxes shown
    to be due on a Tax Return for a Carry-Over Period filed by
    ZAP.COM and any ZAP.COM Pre-Closing Affiliate pursuant to
    Section 2.4(a) hereof.



 



    3.8  Carry-Backs. ZAP.COM shall be entitled to any
    refund of any Tax obtained by the Consolidated Group (or any
    member of the Consolidated Group), including any refund obtained
    as a result of the carry-back of losses or credits of ZAP.COM or
    any ZAP.COM Post-Closing Affiliate from any taxable period
    beginning after the Effective Date to any Taxable Period ending
    before or including the Effective Date. The application of any
    such carry-backs by ZAP.COM
    and/or any
    other current or former member of the Consolidated Group shall
    be in accordance with the Code and the Treasury Regulations
    promulgated thereunder. Notwithstanding this Section 3.8,
    ZAP.COM and any ZAP.COM Post-Closing Affiliate shall have the
    right, in its sole discretion, to make any election, including
    the election under Section 172(b)(3) of the Code, which
    would eliminate or limit the carry-back of any loss or credit to
    any Taxable Period ending before or including the Effective Date.



 



    3.9  Post-Closing Elections. At Zapata’s request,
    ZAP.COM and the ZAP.COM Pre-Closing Affiliates shall make
    and/or join
    with Zapata in making any Tax elections reasonably requested by
    Zapata after the Effective Date, if the making of such election
    does not have a material adverse impact on ZAP.COM or any
    ZAP.COM Pre-Closing Affiliate for any post-Effective Date Tax
    period.



 



    3.10  Refunds. ZAP.COM and any ZAP.COM Pre-Closing
    Affiliate shall be entitled to any refund of any Tax obtained by
    the Consolidated Group (or any member of the Consolidated Group)
    as a result of any audit, amendment or other change in the Tax
    Return as filed by the Consolidated Group or any member thereof
    to the extent the refund is attributable to ZAP.COM and any
    ZAP.COM Pre-Closing Affiliate for any Taxable Period of the
    Consolidated Group ending before or including the Effective
    Date. Zapata will cooperate with ZAP.COM and any ZAP.COM
    Pre-Closing Affiliate in obtaining such refunds, including, but
    not limited to, the filing of amended Tax Returns or refund
    claims. Zapata will immediately pay to ZAP.COM and any ZAP.COM
    Pre-Closing Affiliate any Tax refund described in this
    Section 3.10 when such refund is received by the Zapata
    Group. With the exception of Section 3.8, all other refunds
    arising from Tax Returns filed for the Consolidated Group will
    belong to Zapata.




    

    37








 







    ARTICLE 4

    



 




    COOPERATION
    AND EXCHANGE OF INFORMATION
    



 



    4.1  Cooperation. ZAP.COM shall cooperate (and shall
    cause any ZAP.COM Post-Closing Affiliate to cooperate) fully at
    such time and to the extent reasonably requested by Zapata in
    connection with the preparation and filing of any Tax Return or
    the conduct of any audit, dispute, proceeding, suit or action
    concerning any issues or any other matter contemplated hereunder
    relating to any Taxable Period ending before or including the
    Effective Date. Such cooperation shall include, without
    limitation, (a) the retention and provision on demand of
    copies of books, records, documentation or other information
    relating to any such Tax Return until the later of (i) the
    expiration of the applicable statute of limitation (giving
    effect to any extension, waiver, or mitigation thereof) and
    (ii) in the event any claim has been made under this
    Agreement for which such information is relevant, until a Final
    Determination with respect to such claim; (b) the execution
    of any document that may be necessary or reasonably helpful in
    connection with the filing of any such Tax Return, or in
    connection with any audit, proceeding, suit or action addressed
    in the preceding sentence; and (c) the use of the
    parties’ reasonable best efforts to obtain any
    documentation from a governmental authority or a third party
    that may be necessary or helpful in connection with the
    foregoing. Each party shall make its employees and facilities
    available on a mutually convenient basis to facilitate such
    cooperation.



 



    4.2  Tax Returns For Taxable Periods Including The
    Effective Date. Zapata will provide ZAP.COM with the opportunity
    to review and comment upon any Tax Returns to be filed after the
    date of this Agreement (including any amended returns), and will
    provide ZAP.COM, promptly upon its request, with copies of such
    Tax Returns (including any amended returns).



 



    4.3  Audits. Zapata will allow ZAP.COM and any ZAP.COM
    Pre-Closing Affiliate and its counsel to participate (at the
    expense of ZAP.COM or its ZAP.COM Pre-Closing Affiliate) in any
    audits of Zapata’s Consolidated Federal Income Tax Returns
    to the extent that such returns relate to ZAP.COM and any
    ZAP.COM Pre-Closing Affiliate. Zapata will not settle any such
    audit in a manner which would adversely affect ZAP.COM and any
    ZAP.COM Pre-Closing Affiliate without the prior written consent
    of ZAP.COM, which consent shall not be unreasonably withheld.



 



    4.4  Carry-Backs. Zapata will immediately pay to
    ZAP.COM and any ZAP.COM Pre-Closing Affiliate any Tax refund (or
    reduction in Tax liability) resulting from a carry-back of a
    post-acquisition tax attribute of ZAP.COM and any ZAP.COM
    Pre-Closing Affiliates into the Zapata Consolidated Group Tax
    Return, when such refund or reduction is realized by the Zapata
    Group. Zapata will cooperate with ZAP.COM and any ZAP.COM
    Pre-Closing Affiliate in obtaining such refunds (or reduction in
    Tax liability), including, but not limited to, the filing of
    amended Tax Returns or refund claims.



 



    4.5  Contest Provisions. Zapata shall have full
    responsibility and discretion in the handling of any Tax
    controversy, including, without limitation, an audit, a protest
    to the Appeals Division of the IRS, and litigation in Tax Court
    or any other court of competent jurisdiction involving a Tax
    Return of the Consolidated Group or the Zapata Group.



 




    ARTICLE 5

    



 




    MISCELLANEOUS
    



 



    5.1  Tax Indemnification.



 



    (a) Zapata shall defend, indemnify and hold harmless
    ZAP.COM and each ZAP.COM Pre-Closing Affiliate from and against
    any liability, cost or expense, including, without limitation,
    any fine, penalty, interest, charge or reasonable
    accountant’s fee, for any Tax required under this Agreement
    to be paid by Zapata or any member of the Consolidated Group
    other than ZAP.COM or a ZAP.COM Pre-Closing Affiliate.



 



    (b) ZAP.COM shall indemnify and hold harmless Zapata and
    each member of the Zapata Group from and against any liability,
    cost or expense, including without limitation, any fine,
    penalty, interest, charge or reasonable




    

    38








 






    accountant’s fee, for any Tax required under this Agreement
    to be paid by ZAP.COM or any ZAP.COM Post-Closing Affiliate.



 



    (c) The amount of any payment made with respect to this
    Section 5.1 shall include any additional amount necessary
    to indemnify the recipient of the payment against any Taxes
    imposed or incurred (including any increase in liability or
    taxes resulting from a reduction in the amount of the loss), and
    any reasonable professional fees or other litigation costs
    incurred, in connection with such payment, and (ii) be
    reduced by the amount of any tax benefit realized or to be
    realized by the recipient as a result of its payment of the
    Taxes being indemnified hereunder.



 



    5.2  Breach. Zapata shall defend, indemnify and hold
    harmless ZAP.COM and each ZAP.COM Pre-Closing Affiliate and
    ZAP.COM shall indemnify and hold harmless each member of the
    Zapata Group from and against any payment required to be made
    under this Agreement as a result of the breach by a member of
    the Zapata Group or by ZAP.COM or a ZAP.COM Pre-Closing
    Affiliate, as the case may be, of any obligation under this
    Agreement.



 



    5.3  Resolution of Certain Disputes.



 



    (a) Arbitration. Disagreements between Zapata and ZAP.COM
    with respect to amounts that either claims is owed by the other
    (or by an Affiliate of the other) under this Agreement, or other
    matters under this Agreement that are not resolved by mutual
    agreement, shall be resolved by arbitration pursuant to this
    Section 5.3.



 



    (b) Selection of the Arbitrator. Any arbitrator selected
    pursuant to this Section 5.3(b) shall have at least ten
    (10) years of experience in the field of corporate
    taxation, shall be an attorney licensed to practice law in any
    state of the United States or a certified public accountant
    licensed to practice in any state of the United States and shall
    not be or have been employed by or affiliated with either party.
    The parties shall first attempt to agree on a mutually
    satisfactory arbitrator. If the parties are unable to agree on a
    mutually satisfactory arbitrator within thirty (30) days
    after either party notifies the other in writing of a
    disagreement requiring arbitration pursuant to this
    Section 5.3 (15 days in the case of a disagreement
    with respect to Section 4.1 through Section 4.5), each
    party shall select an arbitrator. The two arbitrators thus
    selected shall agree on and select a third arbitrator. If the
    two arbitrators cannot agree on such third arbitrator within
    thirty (30) days (fifteen (15) days in the case of a
    disagreement with respect to Section 4.1 through
    Section 4.5), the parties shall each select a different
    arbitrator and renew the foregoing procedure. If the position of
    an arbitrator is vacated, the person or persons who originally
    selected the arbitrator to fill such position shall select a new
    arbitrator to fill the position, unless the parties agree to
    continue the arbitration with the remaining arbitrators. When
    used hereinafter, the term “arbitrator” shall refer to
    the three arbitrators so selected when appropriate and a
    decision of a majority of such arbitrators shall constitute a
    decision by the arbitrator in the appropriate context.



 



    (c) Arbitration Procedures.



 



    (i) The arbitration shall be conducted under the auspices
    of the American Arbitration Association.



 



    (ii) Each party within thirty (30) days after
    engagement of the arbitrator (fifteen (15) days in the case
    of a disagreement with respect to Section 4.1 through
    Section 4.5) shall submit to the arbitrator a written
    statement of the party’s position (including where relevant
    the total net amount it asserts is owed by it or is due to it)
    regarding the total amount in dispute.



 



    (iii) The arbitrator shall base his decision on the
    following standards. In the case of a factual dispute between
    the parties, the arbitrator shall make a determination of the
    correct facts. In the case of a dispute regarding a legal issue,
    including the proper application of the Tax laws or the proper
    interpretation of this Agreement, the arbitrator shall make a
    determination in accordance with his best legal judgment. Upon
    making determinations with respect to all factual and legal
    issues in dispute, the arbitrator shall determine the amount due
    by one party to the other or such other matter with respect to
    the matter subject to the arbitration. Where relevant, as to
    each matter in dispute, the arbitrator shall find in favor of
    the party whose statement submitted pursuant to paragraph
    (ii) above proposed the amount closest to the amount so
    determined.



 



    (iv) The arbitrator shall render a written decision stating
    only the result of such decision as soon as practicable. The
    arbitrator shall also orally explain the bases of such decision
    to both parties as soon as practicable. If and only if both
    parties request, the arbitrator shall state the bases of such
    decision in writing. Where relevant, as to each matter in
    dispute, the arbitrator’s decision shall be in an amount
    equal to one of the total amounts asserted by one of the




    

    39








 






    parties in the written statements submitted pursuant to
    paragraph (ii) above. The arbitrator shall not, and is not
    authorized to, render a decision in any other amount.



 



    (v) The arbitrator’s decision shall be final and
    binding on the parties. No appeal to any court is contemplated
    by this Agreement and each party, to the maximum extent
    permissible by law, waives and relinquishes all rights and
    entitlements to appeal such decision.



 



    (vi) The arbitrator shall determine a fair allocation of
    the costs of the arbitration proceeding (including each
    party’s legal fees) as between the parties.



 



    5.4  Notices. Any notice, demand, claim or other
    communication under this Agreement shall be in writing and shall
    be deemed given upon delivery if delivered personally, upon
    mailing if sent by certified mail, return receipt requested,
    postage prepaid, or upon completion of transmission if sent by
    telecopy or facsimile, to the parties at the following address:



 



    If to Zapata:




    Zapata Corporation




    100 Meridian Centre, Suite 350




    Rochester, New York 14618




    Attn: Avram Glazer, Chief Executive Officer




    If to ZAP.COM:




    ZAP.COM Corporation




    100 Meridian Centre, Suite 350




    Rochester, New York 14618




    Attn: Leonard DiSalvo, Vice President — Finance



 



    5.5  Entire Agreement. This Agreement and the
    applicable provisions of the Distribution Agreement constitute
    the entire agreement of the parties concerning the subject
    matter hereof, and supersedes all other agreements, whether or
    not written, in respect of any Tax between or among any member
    or members of the Zapata Group, on the one hand, and ZAP.COM and
    any ZAP.COM Pre-Closing Affiliate, on the other hand. This
    Agreement may not be amended except by an agreement in writing,
    signed by the parties hereto. In the event and to the extent
    that there shall be a conflict between the provisions of this
    Agreement and the Distribution Agreement, the provisions of this
    Agreement shall control.



 



    5.6  Governing Law. This Agreement shall be governed
    by and construed in accordance with, the laws of the State of
    New York.



 



    5.7  Successors and Assigns. A party’s rights and
    obligations under this Agreement may not be assigned without the
    prior written consent of the other party. All of the provisions
    of this Agreement shall be binding upon and inure to the benefit
    of the parties and their respective successors and permitted
    assigns.



 



    5.8  No Third Party Beneficiaries. This Agreement is
    solely for the benefit of the parties to this Agreement and
    their respective subsidiaries and should not be deemed to confer
    upon third parties any remedy, claim, liability, reimbursement,
    claim of action or other right in excess of those existing
    without this Agreement.



 



    5.9  Legal Enforceability. Any provision of this
    Agreement which is prohibited or unenforceable in any
    jurisdiction shall, as to that jurisdiction, be ineffective to
    the extent of the prohibition or unenforceability without
    invalidating the remaining provisions. Any prohibition or
    unenforceability of any provision of this Agreement in any
    jurisdiction shall not invalidate or render unenforceable the
    provision in any other jurisdiction.



 



    5.10  Expenses. Unless otherwise expressly provided in
    this Agreement or in the Distribution Agreement, each party
    shall bear any and all expenses that arise from their respective
    obligations under this Agreement. In the event either party to
    this Agreement brings an action or proceeding for the breach or
    enforcement of this Agreement, the prevailing party in such
    action or proceeding, whether or not such action or proceeding
    proceeds to final judgment, shall be entitled to recover as an
    element of its costs, and not as damages, such reasonable
    attorneys’ fees as may be awarded in the action or
    proceeding in addition to whatever other relief to which the
    prevailing party may be entitled.




    

    40








 






    5.11  Confidentiality. Each party shall hold and cause
    its Representatives to hold in strict confidence, unless
    compelled to disclose by judicial or administrative process or,
    in the opinion of its counsel, by other requirements of law, all
    information (other than any such information relating solely to
    the business or affairs of such party) concerning the other
    parties hereto furnished it by such other party or its
    Representatives pursuant to this Agreement (except to the extent
    that such information can be shown to have been
    (a) previously known by the party to which it was
    furnished, (b) in the public domain through no fault of
    such party, or (c) later lawfully acquired from other
    sources by the party to which it was furnished), and each party
    shall not release or disclose such information to any other
    person, except its auditors, attorneys, financial advisors,
    bankers and other consultants and advisors who shall be advised
    of the provisions of this Section. Each party shall be deemed to
    have satisfied its obligation to hold confidential information
    concerning or supplied by the other party if it exercises the
    same care as it takes to preserve confidentiality for its own
    similar information.



 



    5.12  Counterparts. This Agreement may be signed in
    any number of counterparts, each of which shall be an original,
    with the same effect as if the signature thereto and hereto were
    upon the same instrument.



 



    5.13  Headings. Introductory headings used in this
    Agreement are solely for the convenience of the parties and
    shall not be deemed to be limitations upon or descriptive of the
    contents of the Section or sub-sections concerned.



 



    5.14  Effective Date of Amended and Restated Tax
    Sharing and Indemnity Agreement. The effective date of the
    Agreement is November 1, 2007.



 



    IN WITNESS WHEREOF, the parties have executed and delivered this
    Agreement as of the date first above written.



 



    ZAP.COM CORPORATION



 


			
	 	    By: 
	
        









    Name: Leonard DiSalvo



			
	 	    Title: 
	
    Vice President — Finance




 



    ZAPATA CORPORATION



 


			
	 	    By: 
	
        









    Name: Avram Glazer



			
	 	    Title: 
	
    President and Chief Executive Officer





    

    41