Exhibit 10.6
SPINCO ASSIGNMENT AND ASSUMPTION
AGREEMENT (HSN)
AGREEMENT (this
“Agreement”), dated as of August 20, 2008, among
InterActiveCorp, a Delaware corporation (“ IAC
”), HSN, Inc., a Delaware corporation (the “
Company ”), Liberty Media Corporation, a Delaware
corporation (“ Liberty ”), and Liberty USA
Holdings, LLC, a Delaware limited liability company (“
Liberty Sub ” and, together with Liberty, the “
Liberty Parties ”).
RECITALS
WHEREAS, IAC, Barry Diller, Liberty
and the other parties named therein entered into that certain
Spinco Agreement, dated as of May 13, 2008 (the “
Spinco Agreement ”);
WHEREAS, IAC, Liberty Sub and
Liberty entered into that certain Affiliate and Assignment
Agreement, dated as of August 20, 2008, pursuant to which
Liberty Sub assumed all of the rights, benefits, liabilities and
obligations of each Liberty Party (as defined in the Spinco
Agreement) signatory to the Spinco Agreement under the Spinco
Agreement other than Liberty;
WHEREAS, the Spinco Agreement
provides that, in connection with each Single-Tier Spinoff of a
Spinco consummated prior to the End Date, IAC will cause such
Spinco to enter into this Agreement with the Liberty
Parties;
WHEREAS, IAC has determined to
proceed with the Single-Tier Spinoff of the Company and, in
accordance with the terms of the Spinco Agreement, the parties are
entering into this Agreement; and
WHEREAS, capitalized terms not
otherwise defined herein will have the meanings specified in the
Spinco Agreement.
NOW, THEREFORE, for good and
valuable consideration (the receipt and sufficiency of which is
hereby acknowledged), the parties hereto agree as
follows:
1.
Assignment and Assumption . Effective as of the
Spinoff Date with respect to the Company, (i) IAC hereby
transfers, assigns and conveys to the Company those rights,
benefits, liabilities and obligations applicable to the Company in
its capacity as a Spinco for purposes of the Spinco Agreement (but,
for the avoidance of doubt, not with respect to any other Spinco)
that are specified in or arise under Sections 3 (other than
Section 3(e)), 5 (other than IAC’s obligations to make
the determinations and deliver the consents provided for in
Section 5(d) of the Spinco Agreement with respect to
certain transactions occurring within two years following
a Tax-Free Spinoff, and its obligation to prepare and update the
Initial IAC List applicable to the Company), 6, 7, 9(c) and,
to the extent of the application of the provisions of Sections 1
and 10 to the aforementioned Sections, Sections 1 and 10 of
the Spinco Agreement (collectively, the “ Applicable
Spinco Provisions ”, and such rights and benefits,
collectively, the “ Assigned Rights ”, and such
liabilities and obligations, collectively, the “ Assigned
Obligations ”), (ii) the Company accepts and assumes
the Assigned Rights and Assigned Obligations and agrees to be bound
by the Assigned Obligations and to perform the Assigned Obligations
in accordance
therewith as if the Company
had executed and delivered the Spinco Agreement, and
(iii) each Liberty Party acknowledges that the Company is a
Spinco for purposes of the Spinco Agreement and, as such, upon the
Single-Tier Spinoff of the Company is entitled to all of the
Assigned Rights as if it had executed and delivered the Spinco
Agreement, and each Liberty Party agrees to perform its obligations
with respect to the Company (in its capacity as a Spinco) under the
Applicable Spinco Provisions in accordance therewith.
2.
Releases
. Effective
as of the Spinoff Date with respect to the Company, (a) each
Liberty Party hereby releases IAC from any obligations and
liabilities arising after such Spinoff Date relating to
(i) IAC’s obligations pursuant to the Spinco Agreement
to cause the Company to enter into this Agreement and (ii) the
Company’s performance after such Spinoff Date of the Assigned
Rights and Assigned Obligations, and (b) IAC hereby releases
each Liberty Party from any obligations and liabilities with
respect to the performance after the Spinoff Date of its
obligations with respect to the Company under the Applicable
Spinoff Provisions as they relate to the Company. The
foregoing releases will not affect in any way any liability or
obligation of any party to the Spinco Agreement for any breach of
the Spinco Agreement occurring on or prior to the Spinoff
Date with respect to the Company or with respect to any rights or
obligations of, or with respect to, any other Spinco.
3.
Third Party
Beneficiaries; Assignment
(a)
Nothing in this
Agreement, whether express or implied, shall be construed to give
any Person, other than the parties hereto, any legal or equitable
right, remedy or claim under or in respect of this
Agreement.
(b)
Except as
provided in this Section 3, in any Assignment and Assumption
Agreement (other than this Agreement) or in Sections 5(d)(i)(6),
5(d)(i)(7) or 9(c) of the Spinco Agreement, neither this
Agreement nor any rights or obligations under this Agreement shall
be assigned, in whole or in part, by the Company, IAC or the
Liberty Parties without the prior written consent of the
other. Any such consent by the Company shall be authorized by
a majority of the Qualified Directors of the Company and any such
consent by IAC shall be
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