ANY
DISPUTE ARISING IN CONNECTION WITH THIS AGREEMENT; PROVIDED, HOWEVER, THAT IN
THE CASE OF DISPUTES ARISING UNDER THIS AGREEMENT, PARENT AND SPINCO 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 TAX
PURPOSES, THE PARTIES HERETO AGREE TO TREAT, AND TO CAUSE THEIR RESPECTIVE
AFFILIATES TO TREAT, (I) ANY PAYMENT REQUIRED BY THIS AGREEMENT OR BY THE
SEPARATION AGREEMENT, AS EITHER A CONTRIBUTION BY PARENT TO SPINCO OR A
DISTRIBUTION BY SPINCO TO PARENT, AS THE CASE MAY BE, OCCURRING IMMEDIATELY
PRIOR TO THE SPIN-OFF 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 AN INCOME TAX OR
OTHER TAX DETRIMENT AS A RESULT OF SUCH PAYMENT), THE
24
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.
MICROSOFT AGREEMENTS AND OPTIONS TREATMENT.
(A)
MICROSOFT AGREEMENTS.
SPINCO AND EACH
MEMBER OF THE SPINCO GROUP HEREBY ASSUME ANY AND ALL OBLIGATIONS OF PARENT OR
ANY MEMBER OF THE PARENT GROUP UNDER (I) THAT CERTAIN AGREEMENT BY AND AMONG
MICROSOFT CORPORATION, USA NETWORKS, INC. AND EXPEDIA, INC. DATED AS OF
NOVEMBER 9, 2001, A COPY OF WHICH IS ATTACHED HERETO (THE "MICROSOFT
COMPENSATION DEDUCTIONS AGREEMENT"), (II) THAT CERTAIN AGREEMENT BY AND BETWEEN
MICROSOFT CORPORATION AND EXPEDIA, INC., DATED AS OF OCTOBER 1, 1999, A COPY OF
WHICH IS ATTACHED HERETO (THE "MICROSOFT TAX ALLOCATION AGREEMENT"), AND
(III) THAT CERTAIN AGREEMENT BY AND