Exhibit 10.12
TRANSITION SERVICES
AGREEMENT
by and between
IAC/INTERACTIVECORP
and
EXPEDIA, INC.
DATED AS OF August 9,
2005
TRANSITION SERVICES
AGREEMENT
This TRANSITION SERVICES AGREEMENT,
dated as of August 9, 2005 (this “ Services
Agreement ”), is entered into by and between
IAC/InterActiveCorp, a Delaware corporation (“ IAC
”), and Expedia, Inc., a Delaware corporation and wholly
owned Subsidiary of IAC (“ Expedia ”).
Capitalized terms used herein but not defined herein shall have the
meaning set for the in that certain Separation Agreement, dated as
of the date hereof, by and between IAC and Expedia (the “
Separation Agreement ”).
WHEREAS, the Board of Directors of
IAC has determined it is appropriate and desirable to separate IAC
and Expedia into two publicly-traded companies by separating
IAC’s principal travel and travel-related businesses, and
related assets and liabilities, and contributing them to Expedia
and effecting a reclassification of the capital stock of
IAC;
WHEREAS, IAC and Expedia 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 Expedia; and
WHEREAS, in connection therewith,
(a) Expedia desires to procure certain services from IAC, and
IAC is willing to provide such services to Expedia, during a
transition period commencing on the Effective Date, on the terms
and conditions set forth in this Services Agreement; and
(b) IAC desires to procure certain services from Expedia, and
Expedia is willing to provide such services to IAC, during a
transition period commencing on the 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.
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 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
Expedia the services (“ IAC Services ”) listed
on the attached Schedules (the “ Schedules ”) as
being performed by the IAC. 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 applicable Schedule. Each IAC Service shall be
provided in exchange for the consideration set forth with respect
to such IAC Service on the applicable Schedule or as the Parties
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 applicable
Schedule.
(b) On the terms and subject to the
conditions contained herein, Expedia shall provide, or shall cause
its Subsidiaries and Affiliates and their respective employees
designated by it (such designated Subsidiaries, Affiliates and
employees, together with Expedia, being herein collectively
referred to as the “ Expedia Service Providers ”
and together with the IAC Service Providers, the “ Service
Providers ”) to provide, to IAC the services (“
Expedia Services ” and together with the IAC Services,
the “ Services ”) listed on the attached
Schedules as being performed by Expedia. Subject to
Section 3.01 , any decisions as to which of the Expedia
Service Providers (including the decisions to use third parties)
shall provide the Expedia Services shall be made by Expedia in its
sole discretion, except to the extent specified in the applicable
Schedule. Each Expedia Service shall be provided in exchange for
the consideration set forth with respect to such Service on the
applicable Schedule or as the Parties may otherwise agree in
writing. Each Expedia Service shall be provided and accepted in
accordance with the terms, limitations and conditions set forth
herein and on the applicable Schedule.
(c) As used in this Services
Agreement, the term “ Receiving Party ” shall
mean the Party receiving Services.
2.02. Books and Records; Availability of
Information . Each Party shall create and maintain accurate
books in connection with the provision of the Services performed by
it and, upon reasonable notice from the other Party, shall make
available for inspection and copy by such other Party’s
agents such records during reasonable business hours. Each 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 Services. Each Party shall
provide to the Service Providers reasonable access to such
Party’s premises to the extent necessary for the purpose of
providing the Services.
ARTICLE III
Services; Payment; Independent
Contractors
3.01. Services To Be Provided . (a) Unless
otherwise agreed by the Parties (including to the extent specified
in the applicable 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 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 Effective Date;
provided , however , that the applicable 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.
(b) The provision of Services by
Service Providers shall be subject to Article V
hereof.
(c) Each Party agrees to use its
reasonable efforts to reduce or eliminate its dependency on the
Services as soon as is reasonably practicable; provided that
a breach of this Section 3.01(c) shall not affect a
Service Provider’s obligation to provide any Service through
the term applicable to such Service.
3.02. The Parties will use good-faith efforts to
reasonably cooperate with each other in all matters relating to the
provision and receipt of Services. Such cooperation shall include
obtaining all consents, licenses or approvals necessary to permit
each Party to perform its obligations hereunder; provided ,
however , under no circumstances shall any Service Provider
be required to make any payments to any third party in respect of
any such consents, licenses or approvals nor shall any Service
Provider be required to make any alternative arrangements in the
event that any such consents, licenses or approvals are not
obtained.
3.03. Additional Services .
(a) From time to time during the
term, each of IAC and Expedia may request the other Party
(i) to provide additional (including as to volume, amount,
level or frequency, as applicable) or different services which the
other Party is not expressly obligated to provide under this
Agreement if such services are of the type and scope provided
within IAC during fiscal year 2005 or (ii) expand the scope of
any Service (such additional or expanded services, the “
Additional Services ”). The Party receiving such
request shall consider such request in good faith and shall use
commercially reasonable efforts to provide such Additional Service;
provided , no Party shall be obligated to provide any
Additional Services if it does not, in its reasonable judgment,
have adequate resources to provide such Additional Services or if
the provision of such Additional Services would interfere with the
operation of its business. The Party receiving the request for
Additional Services shall notify the requesting Party within
fifteen (15) days as to whether it will or will not provide
the Additional Services.
(b) If a Party agrees to provide
Additional Services pursuant to Section 3.03(a), then a
representative of each party shall in good faith negotiate the
terms of a supplemental Schedule to this Agreement which will
describe in detail the service, project scope,
