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Exhibit 10.4
TRANSITION SERVICES AGREEMENT
by and among
IAC/INTERACTIVECORP,
HSN, INC.,
INTERVAL LEISURE GROUP, INC.
TICKETMASTER
and
TREE.COM, INC.
TRANSITION SERVICES AGREEMENT
This TRANSITION SERVICES AGREEMENT, dated as of August 20,
2008 (this " Services Agreement "), is entered into by and
among IAC/InterActiveCorp, a Delaware corporation (" IAC "
or " New IAC "), HSN, Inc., a Delaware corporation and
wholly owned subsidiary of IAC (" HSNSpinco " or "
HSN "), Interval Leisure Group, Inc., a Delaware
corporation and wholly owned subsidiary of IAC (" Interval
Spinco " or " Interval "), Ticketmaster, a Delaware
corporation and wholly owned subsidiary of IAC (" TMSpinco "
or " TM "), and Tree.com, Inc., a Delaware corporation
and wholly owned subsidiary of IAC (" Tree Spinco " or "
LT " and, together with HSNSpinco, Interval Spinco and
TMSpinco, the " Spincos " and, the Spincos together with
IAC, the " Parties " and each a " Party ").
WHEREAS, the Board of Directors of IAC has determined it is
appropriate and desirable to separate IAC and the Spincos into five
publicly-traded companies all as set forth in that certain
Separation and Distribution Agreement, dated as of even date
herewith, by and among the Parties (the " Separation
Agreement ");
WHEREAS, IAC and the Spincos expect to enter into the Separation
Agreement on the date hereof, which sets forth, among other things,
the assets, liabilities, rights and obligations of each of the
Parties for purposes of effecting the separation of IAC and the
Spincos; and
WHEREAS, in connection with such separation, (a) each of
the Spincos desires to procure certain services from IAC and/or one
or more of the other Spincos, and IAC and such other Spincos each
are willing to provide such services, during a transition period
commencing on the applicable Effective Date (as defined in
Section 7.01), on the terms and conditions set forth in this
Services Agreement; and (b) IAC desires to procure certain
services from the Spincos, and each of the Spincos is willing to
provide such services to IAC, during a transition period commencing
on the applicable Effective Date, on the terms and conditions set
forth in this Services Agreement.
NOW THEREFORE, in consideration of the mutual agreements,
covenants and other provisions set forth in this Services
Agreement, the Parties hereby agree as follows:
ARTICLE I
Definitions
1.01. All terms used
herein and not defined herein shall have the meanings assigned to
them in the Separation Agreement.
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ARTICLE II
Agreement To Provide and Accept
Services
2.01.
Provision of Services.
(a)
On the terms and subject to the conditions contained herein, IAC
agrees with each Spinco, as applicable, that it shall provide, or
shall cause its Subsidiaries and Affiliates and their respective
employees designated by IAC (such designated Subsidiaries,
Affiliates and employees, together with IAC, being herein
collectively referred to as the " IAC Service Providers ")
to provide, to such Spinco the services (" IAC Services ")
listed on the Schedule of Services attached hereto (the "
Services Schedule ") as being performed by IAC or a member
of its Corresponding Group identified in the column of the Services
Schedule titled "Spin Party" and being received by such
Spinco. Subject to Section 3.01 , any
decisions as to which of the IAC Service Providers (including the
decisions to use third parties) shall provide the IAC Services
shall be made by IAC in its sole discretion, except to the extent
specified in the Services Schedule. Each IAC Service shall be
provided in exchange for the consideration set forth with respect
to such IAC Service on the Services Schedule or as IAC and such
Spinco may otherwise agree in writing. Each IAC Service shall
be provided and accepted in accordance with the terms, limitations
and conditions set forth herein and on the Services Schedule.
(b)
On the terms and subject to the conditions contained herein,
TMSpinco agrees with each other Spinco and IAC, as applicable, that
it shall provide, or shall cause its Subsidiaries and Affiliates
and their respective employees designated by it (such designated
Subsidiaries, Affiliates and employees, together with TMSpinco,
being herein collectively referred to as the " Ticketmaster
Service Providers ") to provide, to such other Spinco or IAC,
as applicable, the services (" Ticketmaster Services ")
listed on the Services Schedule as being performed by TM or a or a
member of its Corresponding Group identified in the column of the
Services Schedule titled "Spin Party" and being received by such
other Spinco or IAC, as applicable. Subject to
Section 3.01 , any decisions as to which of the
Ticketmaster Service Providers (including the decisions to use
third parties) shall provide the Ticketmaster Services shall be
made by TMSpinco in its sole discretion, except to the extent
specified in the Services Schedule. Each Ticketmaster
Service shall be provided in exchange for the consideration set
forth with respect to such Service on the Services Schedule or as
TMSpinco and the applicable recipient of the Ticketmaster Services
may otherwise agree in writing. Each Ticketmaster Service
shall be provided and accepted in accordance with the terms,
limitations and conditions set forth herein and on the Services
Schedule.
(c)
On the terms and subject to the conditions contained herein,
HSNSpinco agrees with each other Spinco and IAC, as applicable,
that it shall provide, or shall cause its Subsidiaries and
Affiliates and their respective employees designated by it (such
designated Subsidiaries, Affiliates and employees, together with
HSNSpinco, being herein collectively referred to as the " HSN
Service Providers ") to provide, to such other Spinco or IAC,
as applicable, the services (" HSN Services ") listed on the
Services Schedule as being performed by HSN or a member of its
Corresponding Group identified in the column of the Services
Schedule titled "Spin Party" and being received by such other
Spinco or IAC, as applicable. Subject to
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Section 3.01 , any decisions as to which of the HSN
Service Providers (including the decisions to use third parties)
shall provide the HSN Services shall be made by HSNSpinco in its
sole discretion, except to the extent specified in the Services
Schedule. Each HSN Service shall be provided in exchange for
the consideration set forth with respect to such Service on the
Services Schedule or as HSNSpinco and the applicable recipient of
the HSN Services may otherwise agree in writing. Each HSN
Service shall be provided and accepted in accordance with the
terms, limitations and conditions set forth herein and on the
Services Schedule.
(d)
On the terms and subject to the conditions contained herein,
Interval Spinco agrees with each other Spinco and IAC, as
applicable, that it shall provide, or shall cause its Subsidiaries
and Affiliates and their respective employees designated by it
(such designated Subsidiaries, Affiliates and employees, together
with Interval Spinco, being herein collectively referred to as the
" Interval Service Providers ") to provide, to such other
Spinco or IAC, as applicable, the services (" Interval
Services ") listed on the attached Services Schedule as being
performed by Interval or a member of its Corresponding Group
identified in the column of the Services Schedule titled "Spin
Party" and being received by such other Spinco or IAC, as
applicable. Subject to Section 3.01 , any
decisions as to which of the Interval Service Providers (including
the decisions to use third parties) shall provide the Interval
Services shall be made by Interval Spinco in its sole discretion,
except to the extent specified in the Services Schedule. Each
Interval Service shall be provided in exchange for the
consideration set forth with respect to such Service on the
Services Schedule or as Interval Spinco and the applicable
recipient of the Interval Services may otherwise agree in
writing. Each Interval Service shall be provided and accepted
in accordance with the terms, limitations and conditions set forth
herein and on the Services Schedule.
(e)
On the terms and subject to the conditions contained herein, Tree
Spinco agrees with each other Spinco and IAC, as applicable, that
it shall provide, or shall cause its Subsidiaries and Affiliates
and their respective employees designated by it (such designated
Subsidiaries, Affiliates and employees, together with Tree Spinco,
being herein collectively referred to as the " Tree Service
Providers " and together with the IAC Service Providers, the
Ticketmaster Service Providers, the HSN Service Providers and the
Interval Service Providers, being herein collectively referred to
as the " Service Providers ") to provide, to such other
Spinco or IAC, as applicable, the services (" Tree Services
" and together with the IAC Services, the Ticketmaster Services,
the HSN Services and the Interval Services, being herein
collectively referred to as the " Services ") listed on the
Services Schedule as being performed by LT or a member of its
Corresponding Group identified in the column of the Services
Schedule titled "Spin Party" and being received by such other
Spinco or IAC, as applicable. Subject to
Section 3.01 , any decisions as to which of the Tree
Service Providers (including the decisions to use third parties)
shall provide the Tree Services shall be made by Tree Spinco in its
sole discretion, except to the extent specified in the Services
Schedule. Each Tree Service shall be provided in exchange for
the consideration set forth with respect to such Service on the
Services Schedule or as Tree Spinco and the applicable recipient of
the Tree Services may otherwise agree in writing. Each Tree
Service shall be provided and accepted in accordance with the
terms, limitations and conditions set forth herein and on the
Services Schedule.
(f)
As used in this Services Agreement, the term " Receiving
Party " shall mean the
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Party receiving (or the Party another member of whose
Corresponding Group is receiving) the applicable Services from a
Service Provider.
2.02. Books
and Records; Availability of Information.
Each Party shall create and maintain
accurate books and records in connection with the provision of the
Services performed or caused to be performed by it and, upon
reasonable notice from a Receiving Party, shall make available for
inspection and copying by such Receiving Party’s agents such
books and records to the extent relating to the Services provided
to such Receiving Party hereunder during reasonable business hours
with such inspection occurring no more than one (1) time
during the term in which the Service Provider has provided the
applicable Service to the Receiving Party. Moreover, such
inspection shall be conducted by the Receive Party or its agents in
a manner that will not unreasonably interfere with the normal
business operations of the Service Provider. Each Receiving
Party shall make available on a timely basis to the Service
Providers all information and materials reasonably requested by
such Service Providers to enable them to provide the applicable
Services. Each Receiving Party shall provide to the Service
Providers reasonable access to such Receiving Party’s
premises to the extent necessary for the purpose of providing the
applicable Services.
ARTICLE III
Services; Payment; Independent
Contractors
3.01.
Services To Be Provided.
(a) Unless otherwise agreed between
the applicable Party providing Services hereunder and the Receiving
Party (including to the extent specified in the applicable entry on
the Services Schedule), (i) the Service Providers shall be
required to perform the Services only in a manner, scope, nature
and quality as provided by or within IAC that is similar in all
material respects to the manner in which such Services were
performed immediately prior to the applicable Effective Date, and
(ii) the Services shall be used for substantially the same
purposes and in substantially the same manner (including as to
volume, amount, level or frequency, as applicable) as the Services
have been used immediately prior to the applicable Effective Date;
provided , however , that the applicable entry
on the Services Schedule shall control the scope of the Service to
be performed (to the extent provided therein), unless otherwise
agreed in writing. Each Party and the Service Providers shall
act under this Services Agreement solely as an independent
contractor and not as an agent or employee of any other Party or
any of such Party’s Affiliates. As an independent contractor,
all overhead and personnel necessary to the Services required of
the Service Providers hereunder shall be the Service
Provider’s sole responsibility and shall be at the Service
Provider’s sole cost and expense. No Service Provider shall
have the authority to bind the Receiving Party by contract or
otherwise.
(b)
The provision of Services by the Service Providers shall be subject
to Article V hereof.
(c)
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