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Assignment And Assumption Of Governance Agreement

Assignment and Assumption Agreement

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 This Assignment and Assumption Agreement involves

LIBERTY EXPEDIA HOLDINGS, INC. | Expedia, Inc | LEXE Marginco, LLC | Liberty Expedia Holdings, Inc | Liberty Interactive Corporation

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Title: ASSIGNMENT AND ASSUMPTION OF GOVERNANCE AGREEMENT
Governing Law: Delaware     Date: 3/24/2016

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Exhibit 10.8

 

AGREED FORM

 

ASSIGNMENT AND ASSUMPTION OF GOVERNANCE AGREEMENT

 

This Assignment and Assumption of Governance Agreement (this “ Assignment ”) is made as of [ · ] by and among Liberty Expedia Holdings, Inc., a Delaware corporation (“ Spinco ”), LEXE Marginco, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Spinco (“ Marginco ”), [Liberty Sub, a Delaware [ · ] and a wholly-owned subsidiary of Spinco] (“[ Sub] ”, and together with Spinco and Marginco, the “ Assignees ”), Liberty Interactive Corporation, a Delaware corporation (“ Liberty ”), Barry Diller, an individual (“ Diller ”), and Expedia, Inc., a Delaware corporation (“ Expedia ”).  Capitalized terms used and not otherwise defined herein have the meanings given such terms in the Governance Agreement (as defined below).

 

W I T N E S S E T H :

 

WHEREAS, Expedia, Diller and Liberty are parties to that certain Amended and Restated Governance Agreement, dated as of December 20, 2011 (the “ Governance Agreement ”);

 

WHEREAS, Liberty has determined to engage in the Spin-Off (as defined in the Transaction Agreement, dated as of March 24, 2016, by and among Liberty, Spinco, Diller, John C. Malone, an individual, and Leslie Malone, an individual (the “ Transaction Agreement ”)) which Liberty has represented will constitute a Distribution Transaction involving a Qualified Distribution Transferee;

 

WHEREAS, in accordance with Section 5.01 of the Governance Agreement, the parties desire to effect the assignment by Liberty and assumption by Spinco of Liberty’s rights, benefits and obligations under the Governance Agreement in connection with the Spin-Off and to provide for the other Assignees to become parties to the Governance Agreement as so assigned; and

 

WHEREAS, on or prior to the date hereof, pursuant to Section 5.01(b)(ii) of the Governance Agreement, the Executive Committee of the Board of Directors of Expedia has approved the Spin-Off and the transactions related thereto as contemplated by the Transaction Agreement for purposes of Section 203(a)(1) of the Delaware General Corporation Law.

 

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1.                                       Representations and Warranties of Expedia .  Expedia represents and warrants to Diller, Liberty and Assignees that:

 

a.                                       Expedia is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has the corporate power and authority to enter into this Assignment and to carry out its obligations hereunder and under the Governance Agreement;

 

b.                                       the execution, delivery and performance of this Assignment by Expedia has been duly authorized by all necessary corporate action on the part of Expedia and no other

 



 

corporate proceedings on the part of Expedia are necessary to authorize this Assignment or the matters contemplated hereby or by the Governance Agreement;

 

c.                                        this Assignment has been duly executed and delivered by Expedia and constitutes a valid and binding obligation of Expedia, and, assuming this Assignment constitutes a valid and binding obligation of Diller, Liberty and Assignees, is enforceable against Expedia in accordance with its terms;

 

d.                                       the execution and delivery of this Assignment by Expedia, and the performance of its obligations hereunder and under the Governance Agreement, do not constitute a breach or violation of, or conflict with, Expedia’s restated certificate of incorporation or amended and restated by-laws or any material agreement to which Expedia is a party; and

 

e.                                        prior to the date of this Assignment, the Executive Committee of the board of directors of Expedia has duly adopted the resolution set forth on Exhibit J to the Transaction Agreement, which resolution has not been amended, modified or rescinded.

 

2.                                       Representations and Warranties of Diller .  Diller represents and warrants to Expedia, Liberty and Assignees that:

 

a.                                       he has the power and authority to enter into this Assignment and to carry out his obligations hereunder and under the Governance Agreement;

 

b.                                       the execution, delivery and performance of this Assignment by Diller has been duly authorized by all necessary action on the part of Diller and no other actions on the part of Diller are necessary to authorize this Assignment or the matters contemplated hereby or by the Governance Agreement;

 

c.                                        this Assignment has been duly executed and delivered by Diller and constitutes a valid and binding obligation of Diller, and, assuming this Assignment constitutes a valid and binding obligation of Expedia, Liberty and Assignees, is enforceable against Diller in accordance with its terms; and

 

d.                                       the execution and delivery of this Assignment by Diller, and the performance of his obligations hereunder and under the Governance Agreement, do not constitute a breach or violation of, or conflict with, any material agreement to which Diller is a party.

 

3.                                       Representations and Warranties of Liberty .  Liberty represents and warrants to Diller and Expedia that:

 

a.                                       Liberty is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has the corporate power and authority to enter into this Assignment and to carry out its obligations hereunder and under the Governance Agreement;

 

b.                                       the execution, delivery and performance of this Assignment by Liberty has been duly authorized by all necessary corporate action on the part of Liberty and no other

 

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corporate proceedings on the part of Liberty are necessary to authorize this Assignment or the matters contemplated hereby or by the Governance Agreement;

 

c.                                        this Assignment has been duly executed and delivered by Liberty and constitutes a valid and binding obligation of Liberty, and, assuming this Assignment constitutes a valid and binding obligation of Expedia and Diller, is enforceable against Liberty in accordance with its terms;

 

d.                                       the execution and delivery of the Assignment by Liberty and the performance of its obligations hereunder and under the Governance Agreement, do not constitute a breach or violation of, or conflict with, Liberty’s restated certificate of incorporation, as amended, or amended and restated bylaws;

 

e.                                        this Assignment is being entered into in connection with the Spin-Off, which constitutes a Distribution Transaction involving Spinco, the Liberty Spinco, and its wholly owned subsidiaries [Sub] and Marginco, the Qualified Distribution Transferees, pursuant to Section 5.01 of the Governance Agreement; and

 

f.                                         in connection with the Spin-Off, Liberty has contributed all


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