UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 OR 15(d) Of The

Securities Exchange Act Of 1934

 

Date of Report (Date of earliest event reported): November 18, 2015

 


 

Match Group, Inc.

(Exact name of registrant as specified in its charter)

 


 

Delaware

 

001-37636

 

26-4278917

(State or other jurisdiction of
incorporation or organization)

 

(Commission File Number)

 

(I.R.S. Employer Identification No.)

 

8300 Douglas Avenue

 

 

Suite 800

 

 

Dallas, TX

 

75225

(Address of principal executive offices)

 

(Zip Code)

 

Registrant’s telephone number, including area code: (214) 576-9352

 


 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 



 

Introductory Note

 

On November 24, 2015, Match Group, Inc., a Delaware corporation (“Match”), completed its previously announced initial public offering (the “IPO”) of 38,333,333 shares of its common stock, par value $0.001 per share (“Match Common Stock”).  Prior to the IPO, Match was a wholly-owned subsidiary of IAC/InterActiveCorp, a Delaware corporation (“IAC”). Following the IPO, IAC owns all of the issued and outstanding shares of Match’s Class B common stock, par value $0.001 per share (“Match Class B Common Stock”), representing approximately 84.6% of Match’s outstanding capital stock and approximately 98.2% of the combined voting power of Match’s outstanding capital stock.

 

Item 1.01        Entry into a Material Definitive Agreement.

 

On November 24, 2015, prior to the closing of the IPO, Match and IAC entered into: (i) a master transaction agreement (the “Master Transaction Agreement”), (ii) an employee matters agreement (the “Employee Matters Agreement”), (iii) an investor rights agreement (the “Investor Rights Agreement”), (iv) a tax sharing agreement (the “Tax Sharing Agreement”) and (v) a services agreement (the “Services Agreement” and together with the Master Transaction Agreement, the Employee Matters Agreement, the Investor Rights Agreement and the Tax Sharing Agreement, the “IPO Agreements”).

 

The IPO Agreements are not materially different from the forms of the IPO Agreements filed as exhibits to the registration statement on Form S-1 (File No. 333-207472) originally filed by Match with the Securities and Exchange Commission (“SEC”) on October 16, 2015 (as amended through the date hereof, the “Registration Statement”) and the descriptions of each of the IPO Agreements contained in the Registration Statement under the heading “Certain relationships and related party transactions—Post-offering relationship with IAC” are incorporated by reference herein.

 

The descriptions of the Master Transaction Agreement, the Employee Matters Agreement, the Investor Rights Agreement, the Tax Sharing Agreement and the Services Agreement do not purport to be complete descriptions of such agreements and such descriptions are qualified in their entirety by reference to the full text of the Master Transaction Agreement, the Employee Matters Agreement, the Investor Rights Agreement, the Tax Sharing Agreement and the Services Agreement, which are filed as Exhibits 10.1, 10.2, 4.1, 10.3 and 10.4 hereto, respectively, and are incorporated by reference herein.

 

Item 2.03        Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

 

On November 18, 2015, in connection with the IPO and as described in the Registration Statement, Match issued notes to IAC in the aggregate principal amount of approximately $440 million (the “Notes”), which amount represents the total anticipated net proceeds to Match from the IPO. The Notes bear interest at a rate of 2.25% per year and mature on December 18, 2015. Match intends to pay off these Notes promptly following the closing of the IPO.

 

Item 3.02        Unregistered Sale of Equity Securities.

 

On November 18, 2015, in connection with the completion of Match’s acquisition of Plentyoffish Media Inc., Match issued 41,666,666 shares of its Class B common stock to IAC. The issuance was exempt from registration pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended.

 

Item 3.03        Material Modification to the Rights of Security Holders.

 

The information set forth in Item 5.03 is incorporated by reference herein.

 

On November 24, 2015, Match and IAC entered into the Investor Rights Agreement. The Investor Rights Agreement is not materially different from the form of Investor Rights Agreement filed as Exhibit 10.3 to the Registration Statement and the summary of the Investor Rights Agreement contained in the Registration Statement under the heading “Certain relationships and related party transactions—Post-offering relationship with IAC—Investor Rights Agreement” is incorporated by reference herein.

 

The description of the Investor Rights Agreement does not purport to be a complete description of such agreement and is qualified in its entirety by reference to the full text of the Investor Rights Agreement, which is attached hereto as Exhibit 4.1 and incorporated by reference herein.

 

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Item 5.02        Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

Election of Directors

 

Effective prior to the commencement of trading on November 19, 2015, the Board of Directors (the “Board”) of Match increased the size of the Board to eight members and appointed Sonali De Rycker, Thomas J. McInerney, Pamela S. Seymon, Alan G. Spoon and Mark Stein as members of the Board to fill the vacancies created by such increase. The biographical information for Ms. De Rycker, Mr. McInerney, Ms. Seymon, Mr. Spoon and Mr. Stein contained in the Registration Statement under the heading “Management—Board of directors upon completion of the offering” is incorporated by reference herein.

 

After due inquiry and investigation, the Board determined that there were no material relationships between Match and each of Ms. De Rycker, Mr. McInerney, Ms. Seymon and Mr. Spoon (the “Independent Directors”) that would prevent any of the foregoing from being considered “independent” under the Marketplace Rules of the NASDAQ Stock Market (the “Marketplace Rules”) and applicable SEC rules. Therefore, the Board has determined that the Independent Directors qualify as, and are determined to be, “independent” in accordance with the Marketplace Rules and applicable SEC rules.

 

Effective prior to the commencement of trading on November 19, 2015, the Board approved the terms of a compensation program for non-employee directors (the “Director Compensation Program”).  Pursuant to the Director Compensation Program, each non-employee director will be paid a retainer fee of $50,000 per year and the chairperson of each of the audit committee (the “Audit Committee”) and the compensation committee (the “Compensation Committee”) will be paid a retainer of $20,000 per year.  Members of the Audit Committee (including the chairperson) will receive $10,000 per year and members of the Compensation Committee (including the chairperson) will be paid $5,000 per year. Additionally, restricted stock units with a dollar value of $250,000 on the date of grant will be granted to each non-employee director upon his or her initial appointment to the Board, and thereafter annually upon his or her re-election at Match’s annual meeting of stockholders.  For purposes of the Director Compensation Program, non-employee directors are those who are not employed by Match or IAC.

 

No arrangements exist between either of Match or IAC (on the one hand) and any of Ms. De Rycker, Mr. McInerney, Ms. Seymon, Mr. Spoon, Mr. Stein or any other person (on the other hand) pursuant to which any of Ms. De Rycker, Mr. McInerney, Ms. Seymon, Mr. Spoon and Mr. Stein were appointed as directors nor are any of Ms. De Rycker, Mr. McInerney, Ms. Seymon, Mr. Spoon and Mr. Stein participants in any related party transactions required to be reported pursuant to Item 404(a) of Regulation S-K.

 

Audit Committee

 

Effective prior to the commencement of trading on November 19, 2015, the Board established the Audit Committee and appointed Mr. McInerney, Ms. Seymon and Mr. Spoon as the initial members of such committee, with Mr. Spoon appointed to serve as the Chair of such committee.

 

The Board determined that each of Mr. McInerney, Ms. Seymon and Mr. Spoon meets the independence standards under the Marketplace Rules for service on the Audit Committee and is able to read and understand fundamental financial statements, and that Mr. Spoon is an “audit committee financial expert,” as such term is defined in Item 407(d)(5) of Regulation S-K under the Securities Exchange Act or 1934.

 

Compensation Committee

 

Effective prior to the commencement of trading on November 19, 2015, the Board established the Compensation Committee and appointed Ms. De Rycker and Ms. Seymon as the initial members of such committee, with Ms. Seymon appointed to serve as the Chair of such committee.

 

Benefits Plans

 

Effective as of November 18, 2015, the Board adopted the Match Group, Inc. 2015 Stock and Annual Incentive Plan (the “2015 Plan”). The 2015 Plan was adopted by IAC (Match’s sole stockholder) on November 18, 2015.  The 2015 Plan is not materially different from the form of the 2015 Plan filed as Exhibit 10.25 to the Registration Statement. The description of the 2015 Plan in the Registration Statement contained under the heading “2015 Stock and Annual Incentive Plan” is incorporated by reference herein.

 

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The description of the 2015 Plan does not purport to be a complete description of the 2015 Plan and such description is qualified in its entirety by reference to the full text of the 2015 Plan, which is attached hereto as Exhibit 10.5 and incorporated by reference herein.

 

Item 5.03        Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

 

Amendment and Restatement of Certificate of Incorporation

 

On November 18, 2015, in connection with the IPO, Match amended and restated its Certificate of Incorporation (as amended and restated, the “Charter”).  The Charter is in the same form as the form of amended and restated certificate of incorporation filed as Exhibit 3.1 to the Registration Statement. The description of the provisions of the Charter contained in the Registration Statement under the heading “Description of capital stock” is incorporated by reference herein.

 

The description of the Charter is qualified in its entirety by reference to the Charter attached hereto as Exhibit 3.1, which is incorporated by reference herein.

 

Amendment and Restatement of Bylaws

 

On November 18, 2015, in connection with the IPO, Match amended and restated its by-laws (as amended and restated, the “Bylaws”).  The Bylaws are in the same form as the form of amended and restated bylaws filed as Exhibit 3.2 to the Registration Statement. The description of the provisions of the Bylaws contained in the Registration Statement under the heading “Description of capital stock” is incorporated by reference herein.

 

The description of the Bylaws is qualified in its entirety by reference to the Bylaws attached hereto as Exhibit 3.2, which is incorporated by reference herein.

 

Item 5.05        Amendments to the Registrant’s Code of Ethics, or Waiver of a Provision of the Code of Ethics.

 

Effective prior to the commencement of trading on November 19, 2015, the Board adopted the Match Group, Inc. Code of Business Conduct and Ethics (the “Code of Ethics”).  The Code of Ethics applies to all Match directors, officers and employees, as well as to directors, officers and employees of each subsidiary of Match.

 

The Code of Ethics addresses such individuals’ conduct with respect to, among other things: (i) honest, lawful, and ethical conduct; (ii) conflicts of interest; (iii) corporate opportunities; (iv) compliance with laws, rules and regulations; (v) insider trading; (vi) disclosure, financial reporting and accounting; (vii) confidentiality; (viii) waivers of the Code of Ethics; (ix) compliance procedures; and (x) enforcement.

 

The foregoing summary is qualified in its entirety by reference to the Code of Ethics, a copy of which is attached hereto as Exhibit 14.1 and is incorporated by reference herein. A copy of the Code of Ethics is also posted on the “Corporate Governance” tab of the “Investor Relations” section of Match’s website (www.matchgroupinc.com). Match intends to disclose amendments to, or waivers of a provision of, the Code of Ethics by posting the same to its website.

 

Item 8.01        Other Events.

 

In connection with the closing of the IPO, Match and IAC issued a joint press release to announce each of the pricing of the IPO on November 18, 2015, the exercise of the underwriters’ option to purchase additional shares on November 23, 2015 and the closing of the IPO on November 24, 2015. Copies of these press releases are attached hereto as Exhibits 99.1, 99.2 and 99.3, respectively, and are incorporated by reference herein.

 

Item 9.01        Financial Statements and Exhibits.

 

(d) Exhibits.

 

Number

 

Description

3.1

 

Amended and Restated Certificate of Incorporation of Match Group, Inc.

 

4



 

Number

 

Description

3.2

 

Amended and Restated By-laws of Match Group, Inc.

 

 

 

4.1

 

Investor Rights Agreement, dated as of November 24, 2015, by and between Match Group, Inc. and IAC/InterActiveCorp

 

 

 

10.1

 

Master Transaction Agreement, dated as of November 24, 2015, by and between Match Group, Inc. and IAC/InterActiveCorp*

 

 

 

10.2

 

Employee Matters Agreement, dated as of November 24, 2015, by and between Match Group, Inc. and IAC/InterActiveCorp*

 

 

 

10.3

 

Tax Sharing Agreement, dated as of November 24, 2015, by and between Match Group, Inc. and IAC/InterActiveCorp

 

 

 

10.4

 

Services Agreement, dated as of November 24, 2015, by and between Match Group, Inc. and IAC/InterActiveCorp*

 

 

 

10.5

 

2015 Stock and Annual Incentive Plan

 

 

 

14.1

 

Match Group, Inc. Code of Conduct and Ethics

 

 

 

99.1

 

Press Release dated November 18, 2015

 

 

 

99.2

 

Press Release dated November 23, 2015

 

 

 

99.3

 

Press Release dated November 24, 2015

 


* Pursuant to Item 601(b)(2) of Regulation S-K, certain schedules and similar attachments have been omitted. The registrant hereby agrees to furnish a copy of any omitted schedule or similar attachment to the SEC upon request.

 

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SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

Match Group, Inc.

 

 

Date:     November 24, 2015

 

 

 

By:

/s/GARY SWIDLER

 

Name:

Gary Swidler

 

Title:

Chief Financial Officer

 

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EXHIBIT INDEX

 

Number

 

Description

3.1

 

Amended and Restated Certificate of Incorporation of Match Group, Inc.

 

 

 

3.2

 

Amended and Restated By-laws of Match Group, Inc.

 

 

 

4.1

 

Investor Rights Agreement, dated as of November 24, 2015, by and between Match Group, Inc. and IAC/InterActiveCorp

 

 

 

10.1

 

Master Transaction Agreement, dated as of November 24, 2015, by and between Match Group, Inc. and IAC/InterActiveCorp*

 

 

 

10.2

 

Employee Matters Agreement, dated as of November 24, 2015, by and between Match Group, Inc. and IAC/InterActiveCorp*

 

 

 

10.3

 

Tax Sharing Agreement, dated as of November 24, 2015, by and between Match Group, Inc. and IAC/InterActiveCorp

 

 

 

10.4

 

Services Agreement, dated as of November 24, 2015, by and between Match Group, Inc. and IAC/InterActiveCorp*

 

 

 

10.5

 

2015 Stock and Annual Incentive Plan

 

 

 

14.1

 

Match Group, Inc. Code of Conduct and Ethics

 

 

 

99.1

 

Press Release dated November 18, 2015

 

 

 

99.2

 

Press Release dated November 23, 2015

 

 

 

99.3

 

Press Release dated November 24, 2015

 


* Pursuant to Item 601(b)(2) of Regulation S-K, certain schedules and similar attachments have been omitted. The registrant hereby agrees to furnish a copy of any omitted schedule or similar attachment to the SEC upon request.

 

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Exhibit 3.1

 

AMENDED AND RESTATED

 

CERTIFICATE OF INCORPORATION

 

OF

 

MATCH GROUP, INC.

 

It is hereby certified that:

 

1. The name of the corporation is Match Group, Inc., which was originally incorporated under the name “Match.com, Inc.”

 

2. The date of filing of its original Certificate of Incorporation with the Secretary of State of the State of Delaware was February 13, 2009.

 

3. This Amended and Restated Certificate of Incorporation of the Corporation has been duly adopted by the Board of Directors and stockholders of the Corporation in accordance with Sections 242 and 245 of the Delaware General Corporation Law and by the written consent of its stockholders in accordance with Section 228 of the Delaware General Corporation Law and is to become effective as of 10:00 p.m., Eastern Time, on November 18, 2015.

 

4. The original Certificate of Incorporation of the Corporation, as amended, is hereby amended and restated in its entirety to read as follows:

 

ARTICLE I

 

The name of the Corporation is Match Group, Inc.

 

ARTICLE II

 

The address of the Corporation’s registered office in the State of Delaware is c/o The Corporation Trust Company, 1209 Orange Street, City of Wilmington, County of New Castle, State of Delaware 19801. The name of the registered agent at such address is The Corporation Trust Company.

 

ARTICLE III

 

The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the Delaware General Corporation Law (the “ DGCL ”).

 

ARTICLE IV

 

The Corporation shall have the authority to issue 5,000,000,000 shares of stock, comprised of 1,500,000,000 shares of $0.001 par value common stock, 1,500,000,000 shares of $0.001 par value Class B common stock, 1,500,000,000 shares of $0.001 par value Class C common stock, and 500,000,000 shares of $0.001 par value Preferred Stock.

 

Upon this Amended and Restated Certificate of Incorporation becoming effective pursuant to the DGCL (the “ Effective Time ”), each share of the Corporation’s common stock, par value $0.001 per share (the “ Existing Common Stock ”), issued and outstanding immediately prior to the Effective Time will automatically be converted and reclassified into 16 shares of Class B common stock. Each certificate or book entry credit representing Existing Common Stock shall thereafter represent such number of shares of Class B common stock into which the shares of Existing Common Stock represented by such certificate have been converted and reclassified.

 



 

A statement of the designations of each class and the powers, preferences and rights, and qualifications, limitations or restrictions thereof is as follows:

 

A.                                     Common Stock .

 

(1)                                  The holders of the common stock shall be entitled to receive, share for share with the holders of shares of Class B common stock and the holders of shares of Class C common stock, such dividends if, as and when declared from time to time by the Board of Directors, except as provided for in Section D of this Article IV.

 

(2)                                  In the event of the voluntary or involuntary liquidation, dissolution, distribution of assets or winding-up of the Corporation, the holders of the common stock shall be entitled to receive, share for share with the holders of shares of Class B common stock and the holders of shares of Class C common stock, all the assets of the Corporation of whatever kind available for distribution to Stockholders, after the rights of the holders of the Preferred Stock have been satisfied.

 

(3)                                  Each holder of common stock shall be entitled to vote one vote for each share of common stock held as of the applicable date on any matter that is submitted to a vote or to the consent of the Stockholders of the Corporation.  Except as otherwise provided herein or by the General Corporation Law of the State of Delaware, the holders of common stock and the holders of Class B common stock shall at all times vote on all matters (including the election of directors) together as one class.

 

B.                                     Class B Common Stock .

 

(1)                                  The holders of the Class B common stock shall be entitled to receive, share for share with the holders of shares of common stock and the holders of shares of Class C common stock, such dividends if, as and when declared from time to time by the Board of Directors, except as provided for in Section D of this Article IV.

 

(2)                                  In the event of the voluntary or involuntary liquidation, dissolution, distribution of assets or winding-up of the Corporation, the holders of the Class B common stock shall be entitled to receive, share for share with the holders of shares of common stock and the holders of shares of Class C common stock, all the assets of the Corporation of whatever kind available for distribution to Stockholders, after the rights of the holders of the Preferred Stock have been satisfied.

 

(3)                                  Each holder of Class B common stock shall be entitled to vote ten votes for each share of Class B common stock held as of the applicable date on any matter that is submitted to a vote or to the consent of the Stockholders of the Corporation.  Except as otherwise provided herein or by the General Corporation Law of the State of Delaware, the holders of common stock and the holders of Class B common stock shall at all times vote on all matters (including the election of directors) together as one class.

 

C.                                     Class C Common Stock .

 

(1)                                  The holders of the Class C common stock shall be entitled to receive, share for share with the holders of shares of common stock and the holders of shares Class B common stock, such dividends if, as and when declared from time to time by the Board of Directors, except as provided for in Section D of this Article IV.

 

(2)                                  In the event of the voluntary or involuntary liquidation, dissolution, distribution of assets or winding-up of the Corporation, the holders of the Class C common stock shall be entitled to receive, share for share with the holders of shares of common stock and the holders of Class B common stock, all the assets of the Corporation of whatever kind available for distribution to Stockholders, after the rights of the holders of the Preferred Stock have been satisfied.

 

(3)                               Each holder of Class C common stock will not be entitled to any voting powers, except as (and then only to the extent) otherwise required by the laws of the State of Delaware. If a vote or consent of the holders of Class C common stock should at any time be required by the laws of the State of Delaware on any matter, the holders of Class C common stock will be entitled to one-hundredth (1/100) of a vote on such matter for each share of Class C common stock held.

 

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D.                                     Dividends .

 

(1)                                  Whenever a dividend, other than a dividend that constitutes a Share Distribution (as defined below), is paid to the holders of any class of the Corporation’s common stock then outstanding, the Corporation will also pay to the holders of each other class of the Corporation’s common stock then outstanding an equal dividend per share. Dividends will be payable only as and when declared by the Board of Directors of the Corporation out of assets of the Corporation legally available therefor. Whenever a Share Distribution is paid to the holders of any class of capital stock then outstanding, the Corporation will also pay a Share Distribution to the holders of each other class of capital stock then outstanding, as provided in this Article IV. For purposes of this Article IV, a “ Share Distribution ” means a dividend or distribution (including a distribution made in connection with any stock-split, reclassification, recapitalization, dissolution, winding up or full or partial liquidation of the Corporation) payable in shares of any class of capital stock of the Corporation or any other Person, other securities of the Corporation or any other Person or securities convertible into or exercisable or exchangeable for capital stock or other securities of the Corporation or any other Person.

 

(2)                                  If at any time a Share Distribution is to be made with respect to any class of capital stock, such Share Distribution may be declared and paid only as follows, subject to the laws of the State of Delaware:

 

(a)                                  a Share Distribution

 

(i)                                      consisting of shares of Class C common stock (or securities convertible into or exercisable or exchangeable for Class C common stock) may be declared and paid to holders of common stock, Class B common stock and Class C common stock, on an equal per share basis, or

 

(ii)                                   consisting of (x) shares of common stock (or securities convertible into or exercisable or exchangeable for common stock) may be declared and paid to holders of common stock on an equal per share basis, (y) shares of Class B common stock (or securities convertible into or exercisable or exchangeable for Class B common stock) may be declared and paid to holders of Class B common stock, on an equal per share basis, and (z) shares of Class C common stock (or securities convertible into or exercisable or exchangeable for Class C common stock) may be declared and paid to holders of Class C common stock, on an equal per share basis; or

 

(b)                                  a Share Distribution consisting of any class of securities of the Corporation or any other Person, other than common stock, Class B common stock or Class C common stock (or securities convertible into or exercisable or exchangeable for common stock, Class B common stock or Class C common stock), may be declared and paid on the basis of a distribution of

 

(i)                                      identical securities, on an equal per share basis, to holders of common stock, Class B common stock and Class C common stock,

 

(ii)                                   separate classes of securities, on an equal per share basis, to the holders of common stock, Class B common stock and Class C common stock, or

 

(iii)                                a separate class of securities to the holders of one or more of common stock, Class B common stock and Class C common stock and, on an equal per share basis, a different class of securities to the holders of all other classes of capital stock;

 

provided, that, in connection with a Share Distribution pursuant to clause (ii) or clause (iii), (1) such separate classes of securities (and, if the distribution consists of Convertible Securities, the Underlying Securities) do not differ in any respect other than their relative voting rights (and any related differences in designation, conversion, redemption and share distribution provisions, as applicable), with holders of shares of Class B common stock receiving the class of securities having (or convertible into or exercisable or exchangeable for securities having) the highest relative voting rights and the holders of shares of common stock and Class C common stock receiving securities of a class having (or convertible into or exercisable or exchangeable for securities having) lesser relative voting rights, in each case, without regard to whether such rights differ to a greater or lesser extent than the corresponding differences in voting rights (and any related differences in designation, conversion, redemption and share distribution, as applicable) among the common stock, the Class B common stock and the Class C common stock, and

 

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(2) in the event the securities to be received by the holders of shares of common stock and Class C common stock consist of different classes of securities, with each such class of securities (or the Underlying Securities into which such class is convertible or for which such class is exercisable or exchangeable) differing only with respect to the relative voting rights of such class (and any related differences in designation, conversion, redemption and share distribution provisions, as applicable), then such classes of securities will be distributed to the holders of each class of capital stock (other than the Class B common stock) (A) as the Board of Directors determines or (B) such that the relative voting rights (and any related differences in designation, conversion, redemption and share distribution provisions, as applicable) of the class of securities (or the Underlying Securities) to be received by the holders of each class of capital stock (other than the Class B common stock) corresponds to the extent practicable to the relative voting rights (and any related differences in designation, conversion, redemption and share distribution provisions, as applicable) of such class of capital stock, as compared to the other class of capital stock (other than the Class B common stock).

 

(3)                                  For the purposes of this Article IV Section D:

 

Convertible Security ” means any security which is, directly or indirectly, convertible into, exchangeable for or otherwise exercisable for another security.

 

Person ” means (a) an individual or any corporation, partnership, limited liability company, estate, trust, association, private foundation joint stock company or any other entity, or (b) “person” as such term is used in Section 355(e) of the Internal Revenue Code of 1986, as amended, and any successor thereto.

 

Underlying Securities ” means with respect to any class or series of Convertible Securities, the class or series of securities into which such class or series of Convertible Securities are directly or indirectly convertible, or for which such Convertible Securities are directly or indirectly exchangeable, or that such Convertible Securities evidence the right to purchase or otherwise receive, directly or indirectly.

 

E.                                      Other Matters Affecting Holders of Common Stock, Class B Common Stock and Class C Common Stock .

 

(1)                                  Shares of Class B common stock shall be convertible into shares of the common stock of the Corporation at the option of the holder thereof at any time on a share for share basis.  Such conversion ratio shall in all events be equitably preserved in the event of any recapitalization of the Corporation by means of a stock dividend on, or a stock split or combination of, outstanding common stock or Class B common stock, or in the event of any merger, consolidation or other reorganization of the Corporation with another corporation. Shares of common stock and shares of Class C common stock will not be convertible into shares of any other class of capital stock of the Corporation.

 

(2)                                  Upon the conversion of Class B common stock into shares of common stock, said shares of Class B common stock shall be retired and shall not be subject to reissue.

 

F.                                       Preferred Stock .

 

The Board of Directors shall, by resolution, designate the powers, preferences, rights and qualifications, limitations and restrictions of the Preferred Stock.  Pursuant to subsection 242(b) of the Delaware General Corporation Law, the number of authorized shares of Preferred Stock or any class or series thereof may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the voting power of the Corporation entitled to vote irrespective of such subsection.

 

ARTICLE V

 

The Board of Directors of the Corporation is expressly authorized to make, alter or repeal By-Laws of the Corporation, but the Stockholders may make additional By-Laws and may alter or repeal any By-Law whether adopted by them or otherwise.

 

ARTICLE VI

 

Elections of directors need not be by written ballot except and to the extent provided in the By-Laws of the Corporation.

 

ARTICLE VII

 

The Corporation is to have perpetual existence.

 

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ARTICLE VIII

 

Each person who is or was or had agreed to become a director or officer of the Corporation, or each such person who is or was serving or who had agreed to serve at the request of the Board of Directors or an officer of the Corporation as an employee or agent of the Corporation or as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (including the heirs, executors, administrators or estate of such person), shall be indemnified by the Corporation, in accordance with the By-Laws of the Corporation, to the full extent permitted from time to time by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment) or any other applicable laws as presently or hereinafter in effect.  Without limiting the generality or the effect of the foregoing, the Corporation may enter into one or more agreements with any person that provide for indemnification greater or different than that provided in this Article VIII.  Any amendment or repeal of this Article VIII shall not adversely affect any right or protection existing hereunder immediately prior to such amendment or repeal.

 

ARTICLE IX

 

A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of the State of Delaware, or (iv) for any transaction from which the director derived an improper personal benefit.  Any amendment or repeal of this Article IX shall not adversely affect any right or protection of a director of the Corporation existing immediately prior to such amendment or repeal.  The liability of a director shall be further eliminated or limited to the full extent permitted by Delaware law, as it may hereafter be amended.

 

ARTICLE X

 

Meetings of stockholders may be held within or without the State of Delaware, as determined by the Board of Directors.  The books of the Corporation may be kept (subject to any provision contained in the Delaware General Corporation Law) within or outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the By-Laws of the Corporation.

 

ARTICLE XI

 

The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by the Delaware General Corporation Law, and all rights conferred upon stockholders herein are granted subject to this reservation, provided that the rights of the Class B common stock may not be amended, altered, changed or repealed without the approval of the holders of the requisite number of said shares of Class B common stock.

 

ARTICLE XII

 

The number of directors of the Corporation shall be such number as shall be determined from time to time by resolution of the Board of Directors.

 

ARTICLE XIII

 

A.                                     Competition and Corporate Opportunities .

 

(1)                                  Subject to any express agreement that may from time to time be in effect, any Dual Role Person may, and shall have no duty not to, on behalf of IAC (i) carry on and conduct, whether directly, or as a partner in any partnership, or as a joint venturer in any joint venture, or as an officer, director or stockholder of any corporation, or as a participant in any syndicate, pool, trust or association, any business of any kind, nature or description, whether or not such business is competitive with or in the same or similar lines of business as the Corporation or its Affiliated Companies, (ii) do business with any client, customer, vendor or lessor of any of the Corporation or its Affiliated Companies, and (iii) make investments in any kind of property in which the Corporation or its Affiliated Companies may make investments.

 

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(2)                                  To the fullest extent permitted by Section 122(17) of the Delaware General Corporation Law, the Corporation hereby renounces any interest or expectancy of the Corporation or any of its Affiliated Companies to participate in any business of IAC, and waives any claim against a Dual Role Person and shall indemnify a Dual Role Person against any claim that such Dual Role Person is liable to the Corporation or its stockholders for breach of any fiduciary duty solely by reason of such person’s or entity’s participation in any such business.  The Corporation shall pay in advance any expenses incurred in defense of such claim as provided in the By-laws of the Corporation.  In the event that a Dual Role Person acquires knowledge of a potential transaction or matter which may constitute a corporate opportunity for both (i) IAC and (ii) the Corporation or its Affiliated Companies, the Dual Role Person shall not have any duty to offer or communicate information regarding such corporate opportunity to the Corporation or its Affiliated Companies.

 

(3)                                  To the fullest extent permitted by Section 122(17) of the Delaware General Corporation Law, the Corporation hereby renounces any interest or expectancy of the Corporation or any of its Affiliated Companies in such corporate opportunity and waives any claim against each Dual Role Person and shall indemnify a Dual Role Person against any claim, that such Covered IAC Person is liable to the Corporation or its stockholders for breach of any fiduciary duty solely by reason of the fact that such Dual Role Person (i) pursues or acquires any corporate opportunity for the account IAC, (ii) directs, recommends, sells, assigns, or otherwise transfers such corporate opportunity to IAC or (iii) does not communicate information regarding such corporate opportunity to the Corporation or its Affiliated Companies, provided, however, in each case, that any corporate opportunity which is expressly offered to a Dual Role Person in writing solely in his or her capacity as an officer or director of the Corporation shall belong to the Corporation.  The Corporation shall pay in advance any expenses incurred in defense of such claim as provided in the By-Laws of the Corporation.

 

B.                                     Certain Matters Deemed not Corporate Opportunities .

 

In addition to and notwithstanding the foregoing provisions of this Article XIII, the Corporation renounces any interest or expectancy of the Corporation or any of its Affiliated Companies in, or in being offered an opportunity to participate in, any business opportunity that the Corporation is not financially able or contractually permitted or legally able to undertake. Moreover, nothing in this Article XIII shall amend or modify in any respect any written contractual agreement between IAC on the one hand and the Corporation or any of its Affiliated Companies on the other hand.

 

C.                                     Certain Definitions .

 

For purposes of this Article XIII:

 

Affiliate ” means with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with such Person.  For purposes of the foregoing definition, the term “ controls ,” “ is controlled by ,” or “ is under common control with ” means the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

 

Affiliated Company ” means, with respect to the Corporation, any Person controlled by the Corporation.

 

Dual Role Person ” means each of (i) any director or officer of the Corporation who is also an officer, director, employee or other Affiliate of IAC and (ii) IAC.

 

IAC ” means IAC/InterActiveCorp and its Affiliates (other than the Corporation and its Affiliated Companies), successors and assigns.

 

Person means (a) an individual or any corporation, partnership, limited liability company, estate, trust, association, private foundation joint stock company or any other entity, or (b) “person” as such term is used in Section 355(e) of the Internal Revenue Code of 1986, as amended, and any successor thereto.

 

D.                                     Termination .

 

The provisions of this Article XIII shall have no further force or effect at such time as (i) the Corporation and IAC/InterActiveCorp are no longer Affiliates of one another and (ii) none of the directors and/or officers of IAC serve as directors and/or officers of the Corporation or its Affiliated Companies; provided, however, that any such termination shall not terminate the effect of such provisions with respect to any agreement, arrangement or other understanding between the Corporation or an Affiliated Company thereof on the one hand, and IAC, on the other hand, that was entered into before such time or any transaction entered into in the performance of such agreement, arrangement or other understanding, whether entered into before or after such time.

 

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E.                                      Deemed Notice .

 

Any person or entity purchasing or otherwise acquiring or obtaining any interest in any capital stock of the Corporation shall be deemed to have notice and to have consented to the provisions of this Article XIII.

 

F.                                       Severability .

 

The invalidity or unenforceability of any particular provision, or part of any provision, of this Article XIII shall not affect the other provisions or parts hereof, and this Article XIII shall be construed in all respects as if such invalid or unenforceable provisions or parts were omitted.

 

ARTICLE XIV

 

The Corporation shall not be governed by Section 203 of the Delaware General Corporation Law (“ Section 203 ”), and the restrictions contained in Section 203 shall not apply to the Corporation.

 

* * * * * *

 

[Signature appears on next page]

 

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IN WITNESS WHEREOF, Match Group, Inc. has caused this Amended and Restated Certificate of Incorporation to be signed by its duly authorized officer this eighteenth day of November, 2015.

 

 

MATCH GROUP, INC.

 

 

 

 

 

 

By:

/s/ Tanya Stanich

 

 

Name:

Tanya Stanich

 

 

Title:

Assistant Secretary

 

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Exhibit 3.2

 

AMENDED AND RESTATED

 

BY-LAWS

 

OF

 

MATCH GROUP , INC.

 

ARTICLE I

 

OFFICES

 

Section 1.                                            Principal Office .   The registered office of Match Group, Inc. (the “ Corporation ”) shall be located in the City of Dover, County of Kent, State of Delaware.

 

Section 2.                                            Other Offices .   The Corporation may also have offices at such other places, both within and without the State of Delaware, as the board of directors of the Corporation (the “ Board of Directors ”) may from time to time determine or the business of the Corporation may require.

 

ARTICLE II

 

STOCKHOLDERS

 

Section 1.                                            Place of Meeting .   Meetings of stockholders may be held at such place, either within or without the State of Delaware, as may be designated by the Board of Directors.  If no designation is made, the place of the meeting shall be the principal office of the Corporation.

 

Section 2.                                            Annual Meeting .   The annual meeting of the stockholders shall be held at such date and time as may be fixed by resolution of the Board of Directors.

 

Section 3.                                            Special Meetings .   Special meetings of the stockholders may be called by the Chairman of the Board or a majority of the Board of Directors.

 

Section 4.                                            Notice .   Written notice stating the date, time and place, if any, of the meeting, the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and in case of a special meeting, the purpose or purposes thereof, shall be given to each stockholder entitled to vote thereat not less than ten (10) nor more than sixty (60) days prior thereto, either personally or by mail, facsimile, telegraph or other means of electronic communication, addressed to each stockholder at his address as it appears on the records of the Corporation; provided that notices to stockholders who share an address may be given in the manner permitted by the General Corporation Law of the State of Delaware.  If mailed, such notice shall be deemed to be delivered when deposited in the United States mail so addressed, with postage thereon prepaid.  If notice be by facsimile, telegram, or other means of electronic communication, such notice shall be deemed to be given at the time provided in the General Corporation Law of the State of Delaware.  Such further notice shall be given as may be required by law.  Meetings may be held without notice if all stockholders entitled to vote are present (unless any such stockholders are present for the purpose of objecting to the meeting as lawfully called or convened), or if notice is waived by those not present.  Any previously scheduled meeting of the stockholders may be postponed, and (unless the Certificate of Incorporation otherwise provides) any special meeting of the stockholders may be canceled, by resolution of the Board of Directors upon public notice given prior to the time previously scheduled for such meeting of stockholders.

 

Section 5.                                            Adjourned Meetings .   The Chairman of the meeting or a majority of the voting power of the shares so represented may adjourn the meeting from time to time, whether or not there is a quorum.  When a meeting is adjourned to another time or place, except as required by law, notice of the adjourned meeting need not be given if the time, place, if any, thereof and the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, are announced at the meeting at which the adjournment is taken, if the adjournment is for not more than thirty (30) days, and if no new record date is fixed for the adjourned meeting.  At the adjourned meeting the Corporation may transact any business that might have been transacted at the original meeting.

 



 

Section 6.                                            Quorum .   Except as otherwise required by law, the holders of shares representing a majority of the voting power of the Corporation entitled to vote, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business; provided , however , that where a separate vote by a class or series or classes or series is required, a majority of the outstanding shares of such class or series or classes or series shall constitute a quorum with respect to such vote.  If a quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have the power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented.  If at such adjourned meeting, a quorum shall be present or represented, any business may be transacted that might have been transacted at the meeting as originally notified.

 

Section 7.                                            Voting .   Except as otherwise provided in the Certificate of Incorporation, each stockholder shall at every meeting of the stockholders be entitled to vote in person or by proxy each share of the class of capital stock having voting power held by such stockholder.

 

Section 8.                                            Procedure for Election of Directors; Required Vote .   Election of directors at all meetings of the stockholders at which directors are to be elected shall be by ballot, and, subject to the rights of the holders of shares of Preferred Stock to elect directors under specified circumstances, a plurality of the votes cast thereat shall elect directors.  Except as otherwise provided by law, the Certificate of Incorporation, or these By-Laws, in all matters other than the election of directors, the affirmative vote of a majority of the voting power of the shares present in person or represented by proxy at the meeting and entitled to vote on the matter shall be the act of the stockholders.

 

Section 9.                                            Inspectors of Elections; Opening and Closing the Polls .   The Board of Directors by resolution shall appoint one or more inspectors, which inspector or inspectors may include individuals who serve the Corporation in other capacities, including, without limitation, as officers, employees, agents or representatives, to act at the meetings of stockholders and make a written report thereof.  One or more persons may be designated as alternate inspectors to replace any inspector who fails to act.  If no inspector or alternate has been appointed to act or is able to act at a meeting of stockholders, the Chairman of the meeting shall appoint one or more inspectors to act at the meeting.  Each inspector, before discharging the duties of an inspector, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of the inspector’s ability.  The inspectors shall have the duties prescribed by law.

 

The Chairman of the meeting shall fix and announce at the meeting the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting.

 

Section 10.                                     Action Without Meeting .   Any action required or permitted to be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, is signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all of the shares entitled to vote thereon were present and voted, provided that prompt notice of such action shall be given to those stockholders who have not so consented in writing to such action without a meeting and who would have been entitled to notice of such meeting.

 

ARTICLE III

 

DIRECTORS

 

Section 1.                                            Number and Tenure .   The business and affairs of the Corporation shall be managed by the Board of Directors, the number thereof to be determined from time to time by resolution of the Board of Directors.  Each director shall serve for a term of one year from the date of his election and until his successor is elected.  Directors need not be stockholders.

 

Section 2.                                            Resignation or Removal .   Any director may at any time resign by delivering to the Board of Directors his resignation in writing.  Any director or the entire Board of Directors may at any time be removed effective immediately, with or without cause, by the vote, either in person or represented by proxy, of a majority of the voting power of shares of stock issued and outstanding of the class or classes that elected such director and entitled to vote at a special meeting held for such purpose or by the written consent of a majority of the voting power of shares of stock issued and outstanding of the class or classes that elected such director.

 

Section 3.                                            Vacancies .   Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by the vote of a majority of the remaining directors elected by the stockholders who vote on such directorship, though less than a quorum, or a majority of the voting power of shares of such stock issued and outstanding and entitled to vote on such directorship at a special meeting held for such purpose or by the written consent of a majority of the voting power of shares of such stock issued and outstanding.  The directors so chosen shall hold office until the next annual election and until their respective successors are duly elected.

 

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Section 4.                                            Regular Meetings .   Regular meetings of the Board of Directors shall be held at such dates, times and places as may be designated by the Chairman of the Board, and shall be held at least once each year.

 

Section 5.                                            Special Meetings .   Special meetings of the Board of Directors may be called by or at the request of the Chairman of the Board or a majority of the directors.  The person or persons calling a special meeting of the Board of Directors may fix a place and time within or without the State of Delaware for holding such meeting.

 

Section 6.                                            Notice .   Notice of any regular meeting or a special meeting shall be given to each director, either orally, by facsimile or other means of electronic communication or by hand delivery, addressed to each director at his address as it appears on the records of the Corporation.  If notice be by facsimile or other means of electronic communication, such notice shall be deemed to be adequately delivered when the notice is transmitted at least twenty-four (24) hours before such meeting.  If by telephone or by hand delivery, the notice shall be given at least twenty-four (24) hours prior to the time set for the meeting.  Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice of such meeting.  A meeting may be held at any time without notice if all the directors are present or if those not present waive notice of the meeting in accordance with Article IX of these By-Laws.

 

Section 7.                                            Quorum .   At all meetings of the Board of Directors, a majority of the total number of directors shall constitute a quorum for the transaction of business and, unless otherwise provided in the Certificate of Incorporation or these By-Laws, the affirmative vote of a majority of the directors present at any meeting at which there is a quorum shall be an act of the Board of Directors.  If a quorum is not present at any meeting of the Board of Directors, the directors present may adjourn the meeting from time to time, without notice, until a quorum shall be present.  A director present at a meeting shall be counted in determining the presence of a quorum, regardless of whether a contract or transaction between the Corporation and any other corporation, partnership, association, or other organization in which such director is a director or officer or has a financial interest, is authorized or considered at such meeting.

 

Section 8.                                            Action Without Meeting .   Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic communication and such written consent or consents and copies of such communication or communications are filed with the minutes of proceedings of the Board of Directors or committee.

 

Section 9.                                            Action by Conference Telephone .   Members of the Board of Directors or any committee thereof may participate in a meeting of such Board of Directors or committee by means of a conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at such meeting.

 

Section 10.                                     Committees .   The Board of Directors may from time to time designate committees of the Board of Directors, with such lawfully delegable powers and duties as it thereby confers, to serve at the pleasure of the Board of Directors and shall, for those committees and any others provided for herein, elect a director or directors to serve as the member or members, designating, if it desires, other directors as alternate members who may replace any absent or disqualified member at any meeting of the committee.  In the absence or disqualification of any member of any committee and any alternate member in his place, the member or members of the committee present at the meeting and not disqualified from voting, whether or not he or they constitute a quorum, may by unanimous vote appoint another member of the Board of Directors to act at the meeting in the place of the absent or disqualified member.

 

Section 11.                                     Compensation of Directors .   The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as director.  No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.  Members of committees may be allowed like compensation for service as committee members.

 

ARTICLE IV

 

OFFICERS

 

Section 1.                                            Number and Salaries .   The officers of the Corporation shall consist of a Chairman of the Board (the “ Chairman ”), a Secretary, a Treasurer, and such other officers and agents as may be deemed necessary by the Board of Directors.  Any two (2) or more offices may be held by the same person.

 

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Section 2.                                            Election and Term of Office .   The officers of the Corporation shall be elected by the Board of Directors at the first meeting of the Board of Directors following the stockholders’ annual meeting, and shall serve for a term of one (1) year and until a successor is elected by the Board of Directors.  Unless otherwise provided in the Certificate of Incorporation or these By-Laws, any officer appointed by the Board of Directors may be removed, with or without cause, at any time by the Chairman, the CEO or by the Board of Directors.  Each officer shall hold his office until his successor is appointed or until his earlier resignation, removal from office, or death.  All officers elected by the Board of Directors shall each have such powers and duties as generally pertain to their respective offices, subject to the specific provisions of this Article IV.  Such officers shall also have such powers and duties as from time to time may be conferred by the Board of Directors or by any committee thereof.  The Board or any committee thereof may from time to time elect, or the Chairman or the CEO may appoint, such other officers (including a President, a Chief Financial Officer and one or more Vice Presidents) and such agents, as may be necessary or desirable for the conduct of the business of the Corporation.  Such other officers and agents shall have such duties and shall hold their offices for such terms as shall be provided in these By-Laws or as may be prescribed by the Board or such committee or by the Chairman or the CEO, as the case may be.

 

Section 3.                                            The Chairman of the Board .   Except as otherwise provided in the Certificate of Incorporation, the Chairman shall be elected by the Board of Directors from their own numbers and shall preside as Chairman at all meetings of the stockholders and of the Board of Directors.  The Chairman shall be the Senior Executive of the Corporation (and, as such Senior Executive, an officer of the Corporation).  The Chairman shall perform such duties and possess such powers as are customarily vested in the office of the Chairman of the Board or as may be vested in him by the Board of Directors.  During the time of any vacancy in the office of CEO or in the event of the absence or disability of the CEO, the Chairman shall have the duties and powers of the CEO unless otherwise determined by the Board of Directors.  In no event shall any third party having dealings with the Corporation be bound to inquire as to any facts required by the terms of this Section 3 for the exercise by the Chairman of the powers of the CEO.  The Chairman shall be empowered to sign all certificates, contracts and other instruments of the Corporation, and to do all acts that are authorized by the Board of Directors, and shall, in general, have such other duties and responsibilities as are assigned consistent with the authority of a Chairman of the Board of a corporation.  In addition, the Board of Directors may designate by resolution one or more Vice Chairmen of the Board with such duties as may from time to time be requested by the Board of Directors.

 

Section 4.                                            The Chief Executive Officer .   The Board of Directors in consultation with the Chairman may elect a CEO.  The CEO shall be responsible for the general management of the affairs of the Corporation and shall perform all duties incidental to his office.  The CEO shall be empowered to sign all certificates, contracts and other instruments of the Corporation, and to do all acts that are authorized by the Board of Directors, and shall, in general, have such other duties and responsibilities as are assigned consistent with the authority of a Chief Executive Officer of a corporation.  The CEO may be removed, with or without cause, at any time by the Board of Directors.

 

Section 5.                                            The President .   The Board of Directors, the Chairman or the CEO may elect a President to have such duties and responsibilities as from time to time may be assigned to him by the Chairman, the CEO or the Board of Directors.  The President shall be empowered to sign all certificates, contracts and other instruments of the Corporation, and to do all acts which are authorized by the Chairman, the CEO or the Board of Directors, and shall, in general, have such other duties and responsibilities as are assigned consistent with the authority of a President of a corporation.

 

Section 6.                                            Chief Financial Officer .   The Chief Financial Officer (if any) shall act in an executive financial capacity.  The Chief Financial Officer shall assist the Chairman of the Board, the CEO and the President in the general supervision of the Corporation’s financial policies and affairs.  The Chief Financial Officer shall be empowered to sign all certificates, contracts and other instruments of the Corporation, and to do all acts which are authorized by the Chairman, the CEO or the Board of Directors, and shall, in general, have such other duties and responsibilities as are assigned consistent with the authority of a Chief Financial Officer of a corporation.

 

Section 7.                                            Vice Presidents .   The Board of Directors, the CEO or the Chairman may from time to time name one or more Vice Presidents that may include the designation of Executive Vice Presidents and Senior Vice Presidents all of whom shall perform such duties as from time to time may be assigned to him by the Chairman, the CEO or the Board of Directors.

 

Section 8.                                            The Secretary .   The Secretary shall keep the minutes of the proceedings of meetings of the stockholders and of the Board of Directors (or, in the event of the absence of the Secretary from any such meeting, the Chairman of such meeting shall designate an officer of the Corporation to keep such minutes); the Secretary shall give, or cause to be given, all notices in accordance with the provisions of these By-Laws or as required by law, shall be custodian of the corporate records and of the seal of the Corporation, and, in general, shall perform such other duties as may from time to time be assigned by the Chairman, the CEO or the Board of Directors.

 

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Section 9.                                            Treasurer .   The Treasurer shall have the custody of the corporate funds and securities, shall keep, or cause to be kept, correct and complete books and records of account, including full and accurate accounts of receipts and disbursements in books belonging to the Corporation, shall deposit all monies and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors, and in general shall perform all duties incident to the office of Treasurer and such other duties as from time to time may be assigned to him by the Chairman, the CEO or the Board of Directors.

 

ARTICLE V

 

CERTIFICATES OF STOCK

 

Section 1.                                            Certificates of Stock .   Shares of stock of the Corporation may be certificated or uncertificated, as provided under the General Corporation Law of the State of Delaware.  Every holder of stock in the Corporation shall be entitled to have a certificate signed by or in the name of the Corporation by the Chairman, CEO or President, if any (or any Vice President), and by the Treasurer or the Secretary of the Corporation, certifying the number of shares owned by the stockholder in the Corporation.

 

Section 2.                                            Facsimile Signatures .   The signature of the Chairman, CEO, President, Vice President, Treasurer or Secretary on any stock certificate may be a facsimile.  In case any officer or officers who have signed, or whose facsimile signature or signatures have been used on any such certificate or certificates shall cease to be such officer or officers of the Corporation, whether because of death, resignation or otherwise, before such certificate or certificates have been delivered by the Corporation, such certificate or certificates may nevertheless be adopted by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures have been used thereon had not ceased to be such officer or officers of the Corporation.

 

Section 3.                                            Lost Certificates .   The Board of Directors may direct that new certificate(s) be issued by the Corporation to replace any certificate(s) alleged to have been lost or destroyed, upon its receipt of an affidavit of that fact by the person claiming the certificate(s) of stock to be lost or destroyed.  When authorizing such issue of new certificate(s), the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed certificate(s), or such owner’s legal representative, to advertise the same in such manner as it shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate(s) alleged to have been lost or destroyed.

 

Section 4.                                            Transfer of Stock .   Upon surrender to the Corporation or its transfer agent of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, the Corporation shall issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books.  Upon receipt of proper transfer instructions from the registered owner of uncertificated shares, such uncertificated shares shall be canceled , and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto , and the transaction shall be recorded upon the books of the Corporation.

 

Section 5.                                            Closing of Transfer Books or Fixing of Record Date .   In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders, or to receive payment of any dividend or other distribution or allotment of any rights or to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date on which the resolution fixing the record date is adopted and, in the case of a meeting of stockholders, which record date shall not be more than sixty (60) nor less than ten (10) days before the date of any meeting of stockholders, nor more than sixty (60) days prior to the time for such other action as hereinbefore described; provided , however , that if no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held, and, for determining stockholders entitled to receive payment of any dividend or other distribution or allotment of rights or to exercise any rights of change, conversion or exchange of stock or for any other purpose, the record date shall be at the close of business on the day on which the Board of Directors adopts a resolution relating thereto.

 

A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided , however , that the Board of Directors may fix a new record date for the adjourned meeting.

 

In order that the Corporation may determine the stockholders entitled to consent to corporate action without a meeting (including by telegram, cablegram or other electronic communication as permitted by law), the Board of Directors may fix a record date, which shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall be not more than ten (10) days after the date upon which the resolution fixing the record date is adopted.  If no record date has been fixed by the Board of Directors and no prior action by the Board of Directors is required by the General Corporation

 

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Law of the State of Delaware, the record date shall be the first date on which a consent setting forth the action taken or proposed to be taken is delivered to the Corporation in the manner prescribed by Article I, Section 10 hereof.  If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by the General Corporation Law of the State of Delaware with respect to the proposed action by consent of the stockholders without a meeting, the record date for determining stockholders entitled to consent to corporate action without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.

 

Section 6.                                            Registered Stockholders .   The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends and to vote as such owner.  Except as otherwise provided by law, the Corporation shall not be bound to recognize any equitable or other claim to or interest in such shares on the part of any other person whether or not it shall have express or other notice thereof.

 

ARTICLE VI

 

CONTRACTS, CHECKS, AND DEPOSITS

 

Section 1.                                            Contracts .   When the execution of any contract or other instrument has been authorized by the Board of Directors without specification of the executing officers, the Chairman, the CEO, the President, any Vice President, the Treasurer and the Secretary, may execute the same in the name of and on behalf of the Corporation and may affix the corporate seal thereto.

 

Section 2.                                            Checks .   All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.

 

Section 3.                                            Accounts .   Bank accounts of the Corporation shall be opened, and deposits made thereto, by such officers or other persons as the Board of Directors may from time to time designate.

 

ARTICLE VII

 

DIVIDENDS

 

Section 1.                                            Declaration of Dividends .   Subject to the provisions, if any, of the Certificate of Incorporation, dividends upon the capital stock of the Corporation may be declared by the Board of Directors at any regular or special meeting, pursuant to law.  Dividends may be paid in cash, in property or contractual rights, or in shares of the Corporation’s capital stock.

 

Section 2.                                            Reserves .   Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, thinks proper as a reserve or reserves to meet contingencies or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for such other purpose as the Board of Directors shall think conducive to the interests of the Corporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was created.

 

ARTICLE VIII

 

FISCAL YEAR

 

The fiscal year of the Corporation shall be established by the Board of Directors.

 

ARTICLE IX

 

WAIVER OF NOTICE

 

Whenever any notice whatever is required to be given by law, the Certificate of Incorporation or these By-Laws, a written waiver thereof, signed by the person or persons entitled to such notice, or a waiver by electronic communications by such person or persons whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice.  Neither the business to be conducted at, nor the purpose of such meeting, need be specified in such waiver.  Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where a person attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.

 

6



 

ARTICLE X

 

SEAL

 

The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization, and the words “Corporate Seal, Delaware”.  The seal may be used by causing it or a facsimile thereof to be impressed or affixed or otherwise reproduced.

 

ARTICLE XI

 

EXCLUSIVE FORUM FOR ADJUDICATION OF DISPUTES

 

Unless the Corporation consents in writing to the selection of an alternative forum, the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation or any director or officer or other employee of the Corporation arising pursuant to any provision of the General Corporation Law of Delaware or the Certificate of Incorporation or these By-laws (each as may be amended from time to time), or (iv) any action asserting a claim against the Corporation or any director or officer or other employee of the Corporation governed by the internal affairs doctrine shall be a state court located within the State of Delaware (or, if no state court located within the State of Delaware has jurisdiction, the federal district court for the District of Delaware).

 

ARTICLE XII

 

AMENDMENTS

 

Except as expressly provided otherwise by the General Corporation Law of the State of Delaware, the Certificate of Incorporation, or other provisions of these By-Laws, these By-Laws may be altered, amended or repealed and new By-Laws adopted at any regular or special meeting of the Board of Directors by an affirmative vote of a majority of all directors.

 

ARTICLE XIII

 

INDEMNIFICATION AND INSURANCE

 

Section 1.                                            Indemnification .  (A) Each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit, or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “ proceeding ”), by reason of the fact that he or a person of whom he is the legal representative is or was, at any time during which this By-Law is in effect (whether or not such person continues to serve in such capacity at the time any indemnification or payment of expenses pursuant hereto is sought or at the time any proceeding relating thereto exists or is brought), a director or officer of the Corporation, or is or was at any such time serving at the request of the Corporation as a director, officer or trustee of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans maintained or sponsored by the Corporation (each such person, an “ indemnitee ”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer or trustee or in any other capacity while serving as a director, officer or trustee, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer or trustee and shall inure to the benefit of his heirs, executors and administrators; provided, however, that except as provided in paragraph (C) of this By-Law, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors.  The right to indemnification conferred in this By-Law shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition, such advances to be paid by the Corporation within twenty (20) days after the receipt by the Corporation of a statement or statements from the claimant requesting such advance or advances from time to time; provided, however, that if the General Corporation Law of the State of Delaware requires, the payment of such expenses incurred by a director or officer in his capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking (hereinafter, the “ undertaking ”) by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right of appeal (a “ final disposition ”) that such

 

7



 

director or officer is not entitled to be indemnified for such expenses under this By-Law or otherwise. The rights conferred upon indemnitees in this By-Law shall be contract rights that vest at the time of such person’s service to or at the request of the Corporation and such rights shall continue as to an indemnitee who has ceased to be a director, officer or trustee and shall inure to the benefit of the indemnitee’s heirs, executors and administrators.

 

(B)                                To obtain indemnification under this By-Law, a claimant shall submit to the Corporation a written request, including therein or therewith such documentation and information as is reasonably available to the claimant and is reasonably necessary to determine whether and to what extent the claimant is entitled to indemnification.  Upon written request by a claimant for indemnification pursuant to the first sentence of this paragraph (B), a determination, if required by applicable law, with respect to the claimant’s entitlement thereto shall be made as follows:  (1) if requested by the claimant, by Independent Counsel (as hereinafter defined), or (2) if no request is made by the claimant for a determination by Independent Counsel, (i) by the Board of Directors by a majority vote of the Disinterested Directors (as hereinafter defined), even though less than a quorum, or (ii) by a committee of Disinterested Directors designated by majority vote of the Disinterested Directors, even though less than a quorum, or (iii) if there are no Disinterested Directors or the Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to the claimant, or (iv) if a quorum of Disinterested Directors so directs, by the stockholders of the Corporation.  If it is so determined that the claimant is entitled to indemnification, payment to the claimant shall be made within 10 days after such determination.

 

(C)                                If a claim under paragraph (A) of this By-Law is not paid in full by the Corporation within thirty (30) days after a written claim pursuant to paragraph (B) of this By-Law has been received by the Corporation (except in the case of a claim for advancement of expenses, for which the applicable period is twenty (20) days), the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim.  It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Corporation) that the claimant has not met the standard of conduct which makes it permissible under the General Corporation Law of the State of Delaware for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation.  Neither the failure of the Corporation (including the Disinterested Directors, Independent Counsel or stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he has met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware, nor an actual determination by the Corporation (including the Disinterested Directors, Independent Counsel or stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.

 

(D)                                If a determination shall have been made pursuant to paragraph (B) of this By-Law that the claimant is entitled to indemnification, the Corporation shall be bound by such determination in any judicial proceeding commenced pursuant to paragraph (C) of this By-Law.

 

(E)                                 The Corporation shall be precluded from asserting in any judicial proceeding commenced pursuant to paragraph (C) of this By-Law that the procedures and presumptions of this By-Law are not valid, binding and enforceable and shall stipulate in such proceeding that the Corporation is bound by all the provisions of this By-Law.

 

(F)                                  The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this By-Law (i) shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, By-Laws, agreement, vote of stockholders or Disinterested Directors or otherwise and (ii) cannot be terminated by the Corporation, the Board of Directors or the stockholders of the Corporation with respect to a person’s service prior to the date of such termination. Any amendment, modification, alteration or repeal of this By-Law that in any way diminishes, limits, restricts, adversely affects or eliminates any right of an indemnitee or his successors to indemnification, advancement of expenses or otherwise shall be prospective only and shall not in any way diminish, limit, restrict, adversely affect or eliminate any such right with respect to any actual or alleged state of facts, occurrence, action or omission then or previously existing, or any action, suit or proceeding previously or thereafter brought or threatened based in whole or in part upon any such actual or alleged state of facts, occurrence, action or omission.

 

8



 

(G)                                The Corporation may, to the extent authorized from time to time by the Board of Directors or the Chairman, grant rights to indemnification, and rights to be paid by the Corporation the expenses incurred in defending any proceeding in advance of its final disposition, to any current or former employee or agent of the Corporation to the fullest extent of the provisions of this By-Law with respect to the indemnification and advancement of expenses of current or former directors and officers of the Corporation.

 

(H)                               If any provision or provisions of this By-Law shall be held to be invalid, illegal or unenforceable for any reason whatsoever:  (1) the validity, legality and enforceability of the remaining provisions of this By-Law (including, without limitation, each portion of any paragraph of this By-Law containing any such provision held to be invalid, illegal or unenforceable, that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (2) to the fullest extent possible, the provisions of this By-Law (including, without limitation, each such portion of any paragraph of this By-Law containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.

 

(I)                                    For purposes of this By-Law:

 

(i)                                      Disinterested Director ” means a director of the Corporation who is not and was not a party to the matter in respect of which indemnification is sought by the claimant.

 

(ii)                                   Independent Counsel ” means a law firm, a member of a law firm, or an independent practitioner, selected by the Disinterested Directors, that is experienced in matters of corporation law and shall include any person who, under the applicable standards of professional conduct then prevailing, would not have a conflict of interest in representing either the Corporation or the claimant in an action to determine the claimant’s rights under this By-Law.

 

(J)                                    Any notice, request or other communication required or permitted to be given to the Corporation under this By-Law shall be in writing and either delivered in person or sent by telecopy, telex, telegram, overnight mail or courier service, or certified or registered mail, postage prepaid, return receipt requested, to the Secretary of the Corporation and shall be effective only upon receipt by the Secretary.

 

Section 2.                                            Insurance .   The Corporation may maintain insurance, at its expense, to protect itself and any current or former director, officer, employee or agent of the Corporation and any current or former director, officer, trustee, employee or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including any person who serves or served in any such capacity with respect to any employee benefit plan maintained or sponsored by the Corporation, against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the General Corporation Law of the State of Delaware.

 

9


Exhibit 4.1

 

INVESTOR RIGHTS AGREEMENT

 

by and between

 

IAC/INTERACTIVECORP

 

and

 

MATCH GROUP, INC.

 

Dated as of

 

November 24, 2015

 



 

TABLE OF CONTENTS

 

 

 

Page

 

 

ARTICLE I REGISTRATION RIGHTS

1

 

 

Section 1.1

Requested Registration

1

Section 1.2

Company Registration

3

Section 1.3

Registration on Form S-3

4

Section 1.4

Registration in Connection with Spin-Off

4

Section 1.5

Expenses of Registration

5

Section 1.6

Registration Procedures

5

Section 1.7

Indemnification

6

Section 1.8

Information by IAC

8

Section 1.9

Rule 144 Reporting

8

Section 1.10

Limitations on Subsequent Registration Rights

9

Section 1.11

Termination of Registration Rights

9

 

 

ARTICLE II ANTI-DILUTION

9

 

 

Section 2.1

Anti-Dilution Rights

9

 

 

 

ARTICLE III FUTURE TRANSACTIONS

11

 

 

Section 3.1

Future Transactions

11

 

 

ARTICLE IV MISCELLANEOUS

11

 

 

Section 4.1

Entire Agreement

11

Section 4.2

Governing Law

12

Section 4.3

Notices

12

Section 4.4

Counterparts

12

Section 4.5

Binding Effect; Assignment

12

Section 4.6

Severability

13

Section 4.7

Failure or Indulgence Not Waiver; Remedies Cumulative

13

Section 4.8

Amendment

13

Section 4.9

Interpretation

13

 

 

 

ARTICLE V DEFINITIONS

13

 

 

 

Section 5.1

“Ancillary Agreements”

13

Section 5.2

“Beneficial Ownership” or “Beneficially Own”

14

Section 5.3

“Code”

14

Section 5.4

“Commission”

14

 

i



 

Section 5.5

“Exchange Act”

14

Section 5.6

“Excluded Issuance”

14

Section 5.7

“Fair Market Value”

14

Section 5.8

“IAC Group”

14

Section 5.9

“Indemnified Party”

15

Section 5.10

“Indemnifying Party”

15

Section 5.11

“Initial Public Offering”

15

Section 5.12

“Issue Price”

15

Section 5.13

“Match Capital Stock”

15

Section 5.14

“Match Non-voting Stock”

15

Section 5.15

“Match Voting Stock”

15

Section 5.16

“Person”

15

Section 5.17

“Registrable Securities”

15

Section 5.18

“Register,” “Registered” and “Registration”

16

Section 5.19

“Registration Expenses”

16

Section 5.20

“Restricted Securities”

16

Section 5.21

“Rule 144”

16

Section 5.22

“Rule 145”

16

Section 5.23

“Sale Transaction”

16

Section 5.24

“Securities Act”

16

Section 5.25

“Selling Expenses”

16

Section 5.26

“Subsidiary”

16

Section 5.27

“Transaction Agreement”

17

Section 5.28

“Voting Power”

17

 

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INVESTOR RIGHTS AGREEMENT

 

This Investor Rights Agreement (this “ Agreement ”), dated as of November 24, 2015, between IAC/InterActiveCorp, a Delaware corporation (“ IAC ”), and Match Group, Inc., a Delaware corporation (“ Match ”).  Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in Article IV hereof or, if not defined therein, in the Transaction Agreement (as defined below).

 

RECITALS

 

WHEREAS, IAC currently owns all of the issued and outstanding capital stock of Match;

 

WHEREAS, Match plans to undertake an initial public offering of its common stock, par value $0.001 per share (the “ Match Common Stock ”) to the public pursuant to a registration statement on Form S-1 filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended;

 

WHEREAS, in connection with such offering, the parties intend that Match grant to IAC certain rights, as provided for in this Agreement, following the offering; and

 

WHEREAS, this Agreement shall be void and of no force and effect until the occurrence of the “Effective Time” as defined in that certain Master Transaction Agreement (the “ Transaction Agreement ”) by and between Match and IAC dated as of November 24, 2015, as may be amended from time to time, at which time this Agreement shall become effective.

 

NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, the parties hereto agree as follows:

 

ARTICLE I
REGISTRATION RIGHTS

 

Section 1.1                                     Requested Registration .

 

(a)                                  Request for Registration .  Subject to the conditions set forth in this Section 1.1 , if Match shall receive from IAC a written request signed by an authorized officer of IAC that Match effect the registration of all or any portion of the Registrable Securities (which request shall state the number of shares of Registrable Securities intended to be disposed of and the intended methods of disposition of such shares by IAC), Match shall, as soon as practicable, use its reasonable best efforts to effect such registration and to permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request.

 

(b)                                  Limitations on Requested Registration .  Match shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.1 :

 



 

(i)                                      Prior to the time set forth, or the earlier waiver, in the applicable “lock up” provisions of any agreement executed by IAC and the underwriters in connection with Match’s Initial Public Offering;

 

(ii)                                   In any twelve-month period, after Match has initiated three such registrations pursuant to this Section 1.1 (counting for these purposes only registrations that have been declared or ordered effective and pursuant to which securities have been sold); or

 

(iii)                                If IAC proposes to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made under Section 1.3 hereof.

 

(c)                                   Deferral .  If (i) in the good faith judgment of the Board of Directors of Match, the filing of a registration statement covering the Registrable Securities would be materially detrimental to Match due to the early disclosure of information relating to the business, financial condition or results of operation of Match that Match is not otherwise then obligated to disclose, (ii) the Board of Directors of Match concludes, as a result, that it is in the best interests of Match to defer the filing of such registration statement at such time, and (iii) Match furnishes to IAC a certificate signed by the Chairman of the Audit Committee of Match stating that in the good faith judgment of the Board of Directors of Match, it would be materially detrimental to Match for such registration statement to be filed in the near future and that it is, therefore, in the best interests of Match to defer the filing of such registration statement, then Match shall have the right to defer such filing for a period of not more than seventy-five (75) days after receipt of the request of IAC (or such shorter period such that the Board of Directors concludes in good faith is necessary); provided , however , that Match shall not defer its obligation in this manner more than once in any twelve-month period.

 

(d)                                  Underwriting .  If IAC intends to distribute the Registrable Securities covered by its request by means of an underwriting, it shall so advise Match as a part of its request made pursuant to this Section 1.1 .  In such event, the right of IAC to include all or any portion of its Registrable Securities in a registration pursuant to this Section 1.1 shall be conditioned upon IAC’s participation in an underwriting and the inclusion of IAC’s Registrable Securities to the extent provided herein.  If Match shall request inclusion in any registration pursuant to this Section 1.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to this Section 1.1 , IAC may, in its sole discretion, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of Match or such other persons in such underwriting and the inclusion of Match’s and such person’s other securities of Match and their acceptance of the further applicable provisions of this ARTICLE I .  Match shall (together with IAC and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting.  IAC shall select the underwriter or underwriters for such registration.

 

(e)                                   Withdrawal of Request .  IAC may withdraw its request for registration pursuant to this Section 1.1 at any time.  If IAC does so, Match shall cease all efforts to secure registration and such registration nonetheless shall be deemed a registration for purposes of this Section 1.1 unless (i) the withdrawal is made following deferral pursuant to Section 1.1(c) , (ii) the withdrawal is based on the reasonable determination of IAC that there has been, since the

 

2



 

date of the registration request, a material adverse change in the business or prospects of Match, or (iii) IAC shall have paid or reimbursed Match for all of the reasonable out-of-pocket fees and expenses incurred by Match in connection with the withdrawn registration.

 

Notwithstanding any other provision of this Section 1.1 , if the underwriters advise IAC in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities that may be so included shall be allocated as follows:  (i) first, to IAC; (ii) second, to Match; and (iii) third, to any other persons IAC has offered inclusion in the registration.

 

If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from Match, the underwriter or IAC.  The securities so excluded shall also be withdrawn from such registration.

 

Section 1.2                                     Company Registration .

 

(a)                                  Company Registration .  If Match shall determine to register any of its securities either for its own account or the account of a security holder or holders, other than a registration pursuant to Section 1.1 , Section 1.3 or Section 1.4 , the Initial Public Offering, a registration relating solely to employee benefit plans, a registration relating solely to the offer and sale of debt securities or a registration relating solely to a corporate reorganization or other Rule 145 transaction, Match shall:

 

(i)                                      promptly give written notice of the proposed registration to IAC; and

 

(ii)                                   use its reasonable best efforts to include in such registration (and any related qualification under state securities laws or other compliance), except as set forth in Section 1.2(b)  below, and in any underwriting involved therein, all such Registrable Securities specified in any written request or requests made by IAC and received by Match within twenty (20) days after such written notice from Match is delivered.  Such written request may specify all or any portion of the Registrable Securities.

 

(b)                                  Underwriting .  If the registration of which Match gives notice is for a registered public offering involving an underwriting, Match shall so advise IAC as a part of the written notice given pursuant to Section 1.2(a)(i) .  In such event, the right of IAC to registration pursuant to this Section 1.2 shall be conditioned upon IAC’s participation in such underwriting and the inclusion of IAC’s Registrable Securities in the underwriting to the extent provided herein.  If IAC proposes to distribute its securities through such underwriting it shall (together with Match) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by Match, provided that such underwriting agreement shall be subject to IAC’s written consent.

 

Notwithstanding any other provision of this Section 1.2 , if the underwriters advise Match in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) limit the number of Registrable Securities to be included in the registration and underwriting.  Match shall so

 

3



 

advise IAC, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated as follows:  (i) first, to Match for securities being sold for its own account, and (ii) second, to IAC; and (iii) third, to any other holders of Match securities.

 

If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from Match or the underwriter.  The securities so excluded shall also be withdrawn from such registration.

 

(c)                                   Right to Terminate Registration .  Match shall have the right to terminate or withdraw any registration initiated by it under this Section 1.2 prior to the effectiveness of such registration whether or not IAC has elected to include securities in such registration.  IAC shall also have the right to withdraw its request for inclusion of its Registrable Securities in the offering pursuant to this Section 1.2 at any time.

 

Section 1.3                                     Registration on Form S-3 .

 

(a)                                  Request for Form S-3 Registration .  After its Initial Public Offering, Match shall use its reasonable best efforts to qualify for registration on Form S-3 or any comparable or successor form or forms.  After Match has qualified for the use of Form S-3, in addition to the rights contained in the foregoing provisions of this ARTICLE I and subject to the conditions set forth in this Section 1.3 , if Match shall receive from IAC a written request that Match effect any registration on Form S-3 or any similar short form registration statement with respect to all or any portion of the Registrable Securities (which request shall state the number of shares of Registrable Securities to be disposed of and the intended methods of disposition of such shares by IAC), Match shall use its reasonable best efforts to effect such registration and to permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request.

 

(b)                                  Deferral .  The provisions of Section 1.1(c)  shall apply to any registration pursuant to this Section 1.3 .

 

(c)                                   Underwriting .  If IAC requests registration under this Section 1.3 intending to distribute the Registrable Securities covered by its request by means of an underwriting, the provisions of Section 1.1(d)  shall apply to such registration.  Notwithstanding anything contained herein to the contrary, registrations effected pursuant to this Section 1.3 shall not be counted as requested for registration or registrations effected pursuant to Section 1.1 .

 

Section 1.4                                     Registration in Connection with Spin-Off .  In addition to the other rights provided for herein, Match agrees that if any Registrable Securities require registration with or approval of any governmental authority under any federal or state law before such Registrable Securities may be distributed to IAC stockholders, whether by dividend, recapitalization or other extraordinary transaction, or sold by such IAC stockholders thereafter without restriction under applicable law, Match shall cause such Registrable Securities to be duly registered or approved, as the case may be.  In addition, Match shall use its reasonable best efforts to list any shares of Match Common Stock required to be delivered upon any conversion,

 

4



 

exchange or transfer of shares of its Class B common stock, par value $0.001 per share (the “ Match Class B Common Stock ”), prior to such delivery, on each national securities exchange or interdealer quotation system on which the outstanding Match Common Stock is listed at the time of such delivery.

 

Section 1.5                                     Expenses of Registration .  Except as contemplated by Section 1.1(e) , all Registration Expenses incurred in connection with registrations pursuant to Section 1.1 , Section 1.2 , Section 1.3 and Section 1.4 hereof shall be borne by Match; provided , however , that Match shall not be required to pay for any expenses of any registration proceeding begun pursuant to Section 1.1 , Section 1.3 or Section 1.4 if the registration request is subsequently withdrawn at the request of IAC (unless such registration request is withdrawn at the request of IAC based upon material adverse information relating to Match that is different from the information known to IAC at the time of its request for registration).  All Selling Expenses relating to securities registered on behalf of IAC and any other holders of securities shall be borne by IAC and such other holders of securities included in such registration pro rata among each other on the basis of the number of Registrable Securities so registered.

 

Section 1.6                                     Registration Procedures .  In the case of each registration effected by Match pursuant to this ARTICLE I , Match shall keep IAC advised in writing as to the initiation of each registration and as to the completion thereof.  At its expense, Match shall use its reasonable best efforts to:

 

(a)                                  Keep such registration effective for a period ending on the earlier of the date that is one-hundred and twenty (120) days from the effective date of the registration statement or such time as IAC has completed the distribution described in the registration statement relating thereto;

 

(b)                                  Prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement for the period set forth in Section 1.6(a)  above;

 

(c)                                   Furnish such number of prospectuses, including any preliminary prospectuses, and other documents incident thereto, including any amendment of or supplement to the prospectus, as IAC may from time to time reasonably request;

 

(d)                                  Register and qualify the securities covered by such registration statement under such other securities laws of such jurisdictions as shall be reasonably requested by IAC;

 

(e)                                   Notify each seller of Registrable Securities covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing, and following such notification promptly (and in any event within 5 days thereafter) prepare and furnish to such

 

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seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;

 

(f)                                    Furnish, on the date that such Registrable Securities are delivered to the underwriters for sale, if such securities are being sold through underwriters, (i) an opinion, dated as of such date, of the counsel representing Match for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any, and reasonably satisfactory to IAC and (ii) a “comfort” letter dated as of such date, from the independent certified public accountants of Match, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the underwriters;

 

(g)                                   Provide a transfer agent and registrar for all Registrable Securities registered pursuant to such registration statement and a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration;

 

(h)                                  Comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months, but not more than eighteen months, beginning with the first month after the effective date of the Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act;

 

(i)                                      Cause all such Registrable Securities registered pursuant hereunder to be listed on each securities exchange on which similar securities issued by Match are then listed; and

 

(j)                                     In connection with any underwritten offering pursuant to a registration statement filed pursuant to Section 1.1 or Section 1.3 hereof, enter into an underwriting agreement in form reasonably necessary to effect the offer and sale of Match Capital Stock; provided , however , that such underwriting agreement contains reasonable and customary provisions, and provided further , however , that IAC shall also enter into and perform its obligations under such an agreement.

 

Section 1.7                                     Indemnification .

 

(a)                                  To the extent permitted by law, Match will indemnify and hold harmless IAC, each of its officers, directors and partners, legal counsel, and accountants and each person controlling IAC within the meaning of Section 15 of the Securities Act, with respect to which registration, qualification, or compliance has been effected pursuant to this ARTICLE I , and each underwriter, if any, and each person who controls within the meaning of Section 15 of the Securities Act any underwriter, against all expenses, claims, losses, damages, and liabilities (or actions, proceedings, or settlements in respect thereof) arising out of or based on:  (i) any untrue statement (or alleged untrue statement) of a material fact contained or incorporated by reference in any prospectus, offering circular, or other document (including any related registration

 

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statement, notification, or the like) incident to any such registration, qualification, or compliance, (ii) any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (iii) any violation (or alleged violation) by Match of the Securities Act, any state securities laws or any rule or regulation thereunder applicable to Match and relating to action or inaction required of Match in connection with any offering covered by such registration, qualification, or compliance, and Match will reimburse IAC, each of its officers, directors, partners, legal counsel, and accountants and each person controlling IAC, each such underwriter, and each person who controls any such underwriter, for any legal and any other expenses reasonably incurred in connection with investigating and defending or settling any such claim, loss, damage, liability, or action; provided , however , that Match will not be liable in any such case to the extent that any such claim, loss, damage, liability, or action arises out of or is based on any untrue statement or omission based upon written information furnished to Match by IAC and stated by IAC to be specifically for use therein, any of IAC’s officers, directors, partners, legal counsel or accountants, any person controlling IAC, such underwriter or any person who controls any such underwriter and stated to be specifically for use therein; and provided further , however , that the indemnity agreement contained in this Section 1.7(a)  shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of Match (which consent shall not be unreasonably withheld or delayed).

 

(b)                                  To the extent permitted by law, IAC will, if Registrable Securities held by IAC are included in the securities as to which such registration, qualification, or compliance is being effected, indemnify and hold harmless Match, each of its directors, officers, partners, legal counsel, and accountants and each underwriter, if any, of Match’s securities covered by such a registration statement, each person who controls Match or such underwriter within the meaning of Section 15 of the Securities Act, against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on:  (i) any untrue statement (or alleged untrue statement) of a material fact contained or incorporated by reference in any such registration statement, prospectus, offering circular, or other document, or (ii) any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse Match and Match’s directors, officers, partners, legal counsel, and accountants, persons, underwriters, or control persons for any legal or any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability, or action, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement, prospectus, offering circular, or other document in reliance upon and in conformity with written information furnished to Match by IAC and stated by IAC to be specifically for use therein; provided , however , that the obligations of IAC hereunder shall not apply to amounts paid in settlement of any such claims, losses, damages, or liabilities (or actions in respect thereof) if such settlement is effected without the consent of IAC (which consent shall not be unreasonably withheld or delayed); and provided further , however , that in no event shall any indemnity under this Section 1.7 exceed the net proceeds from the offering received by IAC.

 

(c)                                   Each party entitled to indemnification under this Section 1.7 (the “ Indemnified Party ”) shall give notice to the party required to provide indemnification (the “ Indemnifying Party ”) promptly after such Indemnified Party has actual knowledge of any claim

 

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as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of such claim or any litigation resulting therefrom; provided , however , that counsel for the Indemnifying Party, who shall conduct the defense of such claim or any litigation resulting therefrom, shall be approved by the Indemnified Party (whose approval shall not be unreasonably withheld), and the Indemnified Party may participate in such defense at such party’s expense; and provided further , however , that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 1.7 to the extent such failure is not prejudicial.  No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation.  Each Indemnified Party shall furnish such information regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and as shall be reasonably required in connection with defense of such claim and litigation resulting therefrom.

 

(d)                                  If the indemnification provided for in this Section 1.7 is held by a court of competent jurisdiction to be unavailable to an Indemnified Party with respect to any loss, liability, claim, damage, or expense referred to herein, then the Indemnifying Party, in lieu of indemnifying such Indemnified Party hereunder, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, liability, claim, damage, or expense in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and of the Indemnified Party on the other in connection with the statements or omissions that resulted in such loss, liability, claim, damage, or expense as well as any other relevant equitable considerations.  The relative fault of the Indemnifying Party and of the Indemnified Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the Indemnifying Party or by the Indemnified Party and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission.

 

(e)                                   Disputes, controversies and claims hereunder shall be subject to the terms of Articles 7 and 10 of the Transaction Agreement.

 

(f)                                    Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall control.

 

Section 1.8                                     Information by IAC .  IAC shall furnish to Match such information regarding IAC and the distribution proposed by IAC as Match may reasonably request in writing and as shall be reasonably required in connection with any registration, qualification, or compliance referred to in this ARTICLE I .

 

Section 1.9                                     Rule 144 Reporting .  With a view to making available the benefits of certain rules and regulations of the Commission that may permit the sale of the Restricted Securities to the public without registration, Match agrees to use its best efforts to:

 

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(a)                                  Make and keep public information regarding Match available as those terms are understood and defined in Rule 144 under the Securities Act, at all times from and after ninety (90) days following the effective date of the first registration under the Securities Act filed by Match for an offering of its securities to the general public;

 

(b)                                  File with the Commission in a timely manner all reports and other documents required of Match under the Securities Act and the Exchange Act at any time after it has become subject to such reporting requirements; and

 

(c)                                   So long as IAC owns any Restricted Securities, furnish to IAC promptly upon written request a written statement by Match as to its compliance with the reporting requirements of Rule 144 (at any time from and after ninety (90) days following the effective date of the first registration statement filed by Match for an offering of its securities to the general public), and of the Securities Act and the Exchange Act (at any time after it has become subject to such reporting requirements), a copy of the most recent annual or quarterly report of Match, and such other reports and documents so filed as IAC may reasonably request in availing itself of any rule or regulation of the Commission allowing IAC to sell any such securities without registration.

 

Section 1.10                              Limitations on Subsequent Registration Rights .  From and after the date of this Agreement, Match shall not, without the prior written consent of a IAC, enter into any agreement with any holder or prospective holder of any securities of Match giving such holder or prospective holder any registration rights the terms of which are pari passu with or senior to the registration rights granted to IAC hereunder.  For these purposes, as to Form S-3 registration rights, pari passu and seniority shall refer to priority in underwriter cut-backs.

 

Section 1.11                              Termination of Registration Rights .  The right of IAC to request registration or inclusion in any registration pursuant to Section 1.1 , Section 1.2 or Section 1.3 and the limitations on Match with respect to the granting of subsequent registration rights pursuant to Section 1.10 shall terminate on such date, on or after the closing of Match’s Initial Public Offering, on which all shares of Registrable Securities held or entitled to be held upon conversion by IAC may immediately be sold under Rule 144 during any ninety (90)-day period.

 

ARTICLE II

ANTI-DILUTION

 

Section 2.1                                     Anti-Dilution Rights .

 

(a)                                  In the event that, after the Initial Public Offering, Match issues or proposes to issue (other than to IAC and other than pursuant to an Excluded Issuance) any Match Capital Stock (including Match Capital Stock issued upon exercise, conversion or exchange of options, warrants and convertible securities (other than shares of Match Common Stock issued upon conversion of shares of Match Class B Common Stock))  (an “ Additional Issuance ”), IAC shall have the right (but not the obligation) to purchase or cause one or more members of the IAC Group to purchase for cash at a price per share equal to the Issue Price:

 

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(i)                                      up to an amount of Match Voting Stock (allocated between Match Common Stock, Match Class B Common Stock, and any other class of Match Voting Stock then being issued in the same proportion as the Additional Issuance giving rise to the anti-dilution rights provided in this Article II , except to the extent that IAC opts to receive Match Common Stock in lieu of Match Class B Common Stock), as is necessary for the IAC Group to maintain (after giving effect to the Additional Issuance and any issuance of Match Voting Stock to the IAC Group pursuant to this Section 2.1(a)(i) ) ownership of Match Voting Stock possessing Voting Power equal to the Voting Power possessed by Match Voting Stock owned by the IAC Group immediately prior to the Additional Issuance; provided that

 

(A)                                such Additional Issuance is with respect to Match Voting Stock; and

 

(B)                                either (1) such Additional Issuance is in excess of 1% of the aggregate Voting Power of shares of Match Voting Stock or (2) such Additional Issuance, together with any prior Additional Issuance(s) with respect to which IAC’s anti-dilution right was not exercisable as a result of this Section 2.1(a)(i)(B)  exceeds 1% of the aggregate Voting Power of shares Match Voting Stock outstanding after giving effect to the first such Additional Issuance (it being understood, for purposes of clarity, that IAC’s purchase right would apply to all such Additional Issuances); or

 

(ii)                                   up to an amount of such class or classes of Match Non-voting Stock as is necessary for the IAC Group to maintain (after giving effect to the Additional Issuance and any issuance of Match Non-voting Stock to the IAC Group pursuant to this Section 2.1(a)(ii)) ownership of  at least 80.1% of the issued and outstanding shares of each class of Match Non-voting Stock, without regard to whether the IAC Group owned any shares of such class of Match Non-voting Stock before such Additional Issuance; provided that such Additional Issuance is with respect to Match Non-voting Stock.

 

(b)                                  Match shall give immediate written notice (an “ Issuance Notice ”) to IAC that Match (x) has received notice of an intended exercise, conversion or exchange of options, warrants or convertible securities (other than shares of Match Common Stock issued upon conversion of shares of Match Class B Common Stock) or (y) otherwise intends to issue any Match Capital Stock (other than to IAC).  Such notice shall specify: (i) the class of Match Capital Stock to be issued, (ii) if such shares are of a class not previously issued, a description of the rights of such shares, (iii) the number of shares proposed to be issued, and (iv) the Issue Price (if known) per share.  IAC may exercise its rights to purchase Match Capital Stock pursuant to this Section 2.1 by sending an irrevocable written notice to Match (a “ Purchase Election Notice ”) not later than fifteen business days after receipt of an Issuance Notice (or, if later, two business days following the determination of the Issue Price) from Match that it elects to purchase or to cause one or more members of the IAC Group to purchase all or a portion of such Match Capital Stock (the “ IAC Additional Shares ”).  Match shall give immediate written notice to IAC in the event Match or any of its subsidiaries intends to issue (other than to IAC) any option, warrant,

 

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convertible security or other instrument convertible or exchangeable into Match Capital Stock, together with a description of the terms thereof and any other information reasonably requested by IAC, to enable IAC to determine whether the issuance of such instrument constitutes an issuance of Match Capital Stock.

 

(c)                                   So long as IAC sends a Purchase Election Notice on or prior to the effective date of the Additional Issuance (the “ Additional Issuance Date ”), but subject to the occurrence of the Additional Issuance, (i) the purchase of the IAC Additional Shares shall be effective, (ii) IAC (or such member of the IAC Group designated by IAC) shall be considered the owner of the IAC Additional Shares purchased pursuant to this Section 2.1 and (iii) IAC (or such member of the IAC Group designated by IAC) shall possess all incidents, benefits and burdens of ownership of such Match Capital Stock, including the right to appreciation in value, the risk of depreciation in value, the right to vote the shares, the right to dividends with respect to the shares, and the right to sell, pledge, hypothecate or otherwise dispose of such shares, in each case, as of immediately prior to the Additional Issuance.  As soon as possible, and in any event within three business days after the Additional Issuance Date, Match shall deliver to IAC (or such member of the IAC Group designated by IAC), against payment therefor, certificates (issued in the name of IAC or a member of the IAC Group) representing the shares of Match Capital Stock being purchased pursuant to Section 2.1 . Payment for such shares shall be unconditionally owing by IAC (or a member of the IAC Group so designated) as of the Additional Issuance Date.

 

(d)                                  If a Purchase Election Notice is sent after the Additional Issuance Date, the closing of the purchase of IAC Additional Shares shall be the later of ten business days after the delivery of the Purchase Election Notice by IAC and five business days after receipt of any necessary regulatory approvals.

 

ARTICLE III

FUTURE TRANSACTIONS

 

Section 3.1                                     Future Transactions .  At any time after the Effective Date, if IAC advises Match that IAC intends dispose of all or a portion of its interest in Match (including by way of a distribution to IAC’s shareholders), Match agrees to cooperate and take all action reasonably requested by IAC to facilitate such a transaction.

 

ARTICLE IV

MISCELLANEOUS

 

Section 4.1                                     Entire Agreement .  Subject to those applicable terms in the Ancillary Agreements referenced herein, this Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and shall supersede all prior written and oral and all contemporaneous oral agreements and understandings with respect to the subject matter hereof.

 

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Section 4.2                                     Governing Law .  This Agreement shall be governed by and construed and interpreted in accordance with the internal laws of the State of Delaware, irrespective of the choice of laws principles of the State of Delaware, as to all matters, including matters of validity, construction, effect, enforceability, performance and remedies.

 

Section 4.3                                     Notices .  Notices, offers, requests or other communications required or permitted to be given by either party pursuant to the terms of this Agreement shall be given in writing to the respective parties at the following addresses:

 

if to IAC:

 

IAC/InterActiveCorp
555 West 18th Street
New York, NY  10011
Attention:  General Counsel
Fax:  (212) 632-9551

 

if to Match:

 

Match Group, Inc.
8300 Douglas Avenue

Suite 800

Dallas, TX 75225

Attention:  Chief Financial Officer

Fax: (917) 793-4497

 

or to such other address as the party to whom notice is given may have previously furnished to the other in writing as provided herein.  Any notice involving non-performance, termination, or renewal shall be sent by hand delivery, recognized overnight courier or, within the United States, may also be sent via certified mail, return receipt requested.  All other notices may also be sent by fax, confirmed by first class mail.  All notices shall be deemed to have been given and received on the earlier of actual delivery or three (3) days from the date of postmark.

 

Section 4.4                                     Counterparts .  This Agreement may be executed in counterparts, each of which shall be deemed to be an original but all of which shall constitute one and the same agreement.

 

Section 4.5                                     Binding Effect; Assignment .  This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective legal representatives and successors in interest, and, except for the indemnification rights in this Agreement of any Indemnified Party in its capacity as such, nothing in this Agreement, express or implied, is intended to confer upon any other person any rights or remedies of any nature whatsoever under or by reason of this Agreement.  Neither party may assign this Agreement or any rights or obligations hereunder, without the prior written consent of the other party, and any such assignment shall be void.  Any permitted assignee shall agree to perform the obligations of the

 

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assignor of this Agreement, and this Agreement shall inure to the benefit of and be binding upon any permitted assignee.

 

Section 4.6                                     Severability .  If any provision of this Agreement or the application thereof to any Person or circumstance is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions hereof or thereof, or the application of such provision to Persons or circumstances or in jurisdictions other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby, so long as the economic or legal substance of the transactions contemplated hereby or thereby, as the case may be, is not affected in any manner adverse to either party hereto or any party thereto.  Upon such determination, the parties shall negotiate in good faith in an effort to agree upon such a suitable and equitable provision to effect the original intent of the parties.

 

Section 4.7                                     Failure or Indulgence Not Waiver; Remedies Cumulative .  No failure or delay on the part of either party hereto in the exercise of any right hereunder shall impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or agreement herein, nor shall any single or partial exercise or waiver of any such right preclude other or further exercise thereof or of any other right.  All rights and remedies existing under this Agreement or the exhibits or schedules attached hereto are cumulative to, and not exclusive of, any rights or remedies otherwise available.

 

Section 4.8                                     Amendment .  No change or amendment shall be made to this Agreement or the exhibits or schedules attached hereto except by an instrument in writing signed on behalf of each of the parties hereto.

 

Section 4.9                                     Interpretation .  The headings contained in this Agreement, in any exhibit or schedule attached hereto and in the table of contents to this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  Any capitalized term used in any exhibit or schedule but not otherwise defined therein, shall have the meaning assigned to such term in this Agreement.  When a reference is made in this Agreement to an article, section, exhibit or schedule, such reference shall be to an article or section of, or an exhibit or schedule to, this Agreement, unless otherwise indicated.

 

ARTICLE V

DEFINITIONS

 

The capitalized words and expressions and variations thereof used in this Agreement or in its schedules, unless a clearly inconsistent meaning is required under the context, shall have the meanings set forth below. Terms not defined below or elsewhere in this Agreement shall have the meaning set forth in the Transaction Agreement:

 

Section 5.1                                     Ancillary Agreements ” shall have the meaning set forth in the Transaction Agreement, except that the reference to this Agreement shall be replaced with a reference to the Transaction Agreement.

 

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Section 5.2                                     Beneficial Ownership ” or “ Beneficially Own ” shall have the meaning given such term in Rule 13d-3 under the Exchange Act and a Person’s Beneficial Ownership of Match Capital Stock shall be calculated in accordance with the provisions of such Rule; provided , however , that for purposes of Beneficial Ownership, (a) a Person shall be deemed to be the Beneficial Owner of any Equity Securities which may be acquired by such Person (disregarding any legal impediments to such Beneficial Ownership), whether within 60 days or thereafter, upon the conversion, exchange or exercise of any warrants, options, rights or other securities issued by Match or any Subsidiary thereof and (b) no Person shall be deemed to Beneficially Own any Equity Securities solely as a result of such Person’s execution of this Agreement, or with respect to which such Person does not have a pecuniary interest.

 

Section 5.3                                     Code ” shall mean the Internal Revenue Code of 1986, as amended.

 

Section 5.4                                     Commission ” shall mean the Securities and Exchange Commission or any other federal agency at the time administering the Securities Act.

 

Section 5.5                                     Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended, or any similar successor federal statute and the rules and regulations thereunder, all as the same shall be in effect from time to time.

 

Section 5.6                                     Excluded Issuance ” shall mean any issuance of Match Capital Stock (i) in a Sale Transaction, or (ii) to an employee or independent contractor in connection with the performance of services by such person, which Match Capital Stock is “substantially nonvested” within the meaning of Section 83 of the Code and the Treasury Regulations promulgated thereunder and with respect to which no election pursuant to Section 83(b) of the Code is made (“ Restricted Stock ”), provided that for purposes of this definition and Section 2.1 of this Agreement any stock covered by the provisions of clause (ii) shall be deemed to have been issued for purposes of Section 2.1 of this Agreement on the date (the “ Lapse Date ”) on which it becomes “substantially vested” within the meaning of Section 83 of the Code and the Treasury Regulations promulgated thereunder.

 

Section 5.7                                     Fair Market Value ” for a security publicly traded in the over-the-counter market (on either NASDAQ-NMS or NASDAQ) or on a recognized exchange shall be the average closing price of such security for the three trading days ending on the applicable day (or, if such day is not a trading day, the trading day immediately preceding the applicable day), and for all other securities or property “Fair Market Value” shall be determined, by a nationally recognized investment banking firm which has not been engaged by Match or IAC or their respective Affiliates for the prior three years, selected by (i) Match and (ii) IAC; provided that, if Match and IAC cannot agree on such an investment banking firm within 10 business days, such investment banking firm shall be selected by a panel designated in accordance with the rules of JAMS, Inc.  The fees, costs and expenses of the JAMS, Inc. and the investment banking firm so selected shall be borne equally by Match and IAC.

 

Section 5.8                                     IAC Group ” shall have the meaning set forth in the Transaction Agreement.

 

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Section 5.9                                     Indemnified Party ” shall have the meaning set forth in Section 1.7(c)  hereto.

 

Section 5.10                              Indemnifying Party ” shall have the meaning set forth in Section 1.7(c)  hereto.

 

Section 5.11                              Initial Public Offering ” shall mean the closing of Match’s first firm commitment underwritten public offering of Match Common Stock registered under the Securities Act.

 

Section 5.12                              Issue Price ” shall mean the price per share equal to (i) in connection with an underwritten offering of Match Capital Stock, the price at which the stock is offered to the public or other investors as reflected in the final prospectus for such offering, (ii) in connection with other sales of Match Capital Stock for cash, the cash price paid therefor, (iii) in connection with the vesting of Restricted Stock, the Fair Market Value of the stock on the Lapse Date (as defined in the definition of “Excluded Issuance” above), (iv) in connection with the issuance of Match Capital Stock as consideration in an acquisition by Match or any of its subsidiaries, the average of the Fair Market Value of the stock for the five trading days ending on the third trading day immediately preceding (a) the date upon which definitive agreements with respect to such acquisition were entered into to the extent the number shares of Match Capital Stock to be issued in such transaction is fixed on that date, or (b) such later date on which the consideration, or remaining portion thereof, issuable in such transaction becomes fixed, (v) in connection with a compensatory issuance of shares of Match Common Stock (other than Restricted Stock), the Fair Market Value of the Match Common Stock upon issuance, and (vi) in all other cases, including, without limitation, in connection with the issuance of Match Capital Stock pursuant to an option, warrant or convertible security (other than in connection with issuances described in clause (v) above), the Fair Market Value of the Match Capital Stock on the date of issuance.

 

Section 5.13                              Match Capital Stock ” shall mean common stock of Match, including the Match Common Stock, the Match Class B Common Stock, the Match Class C Common Stock and any other equity interest treated as  stock of Match for U.S. federal income tax purposes.

 

Section 5.14                              Match Non-voting Stock ” shall mean Match Class C Common Stock and any other class of Match Capital Stock that is not Match Voting Stock.

 

Section 5.15                              Match Voting Stock ” shall mean the Match Common Stock and the Match Class B Common Stock, and any other class of common stock or other equity interest in Match  treated as voting stock of Match for U.S. federal income tax purposes. For the avoidance of doubt, Match Voting Stock does not include the Match Class C Common Stock.

 

Section 5.16                              Person ” shall mean any individual, partnership, joint venture, corporation, limited liability company, trust, unincorporated organization, government or department or agency of a government.

 

Section 5.17                              Registrable Securities ” shall mean (i) any and all shares of Match Capital Stock held by IAC and (ii) any Match Capital Stock issued as a dividend or other

 

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distribution with respect to or in exchange for or in replacement of the shares referenced in (i) above; provided , however , that Registrable Securities shall not include any shares of Match Capital Stock described in clause (i) or (ii) above which have previously been registered or which have been sold to the public either pursuant to a registration statement or Rule 144, or which have been sold in a private transaction in which the transferor’s rights under this Agreement are not validly assigned in accordance with this Agreement.

 

Section 5.18                              Register ,” “ Registered ” and “ Registration ” shall refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act and applicable rules and regulations thereunder, and the declaration or ordering of the effectiveness of such registration statement.

 

Section 5.19                              Registration Expenses ” shall mean all expenses incurred in effecting any registration pursuant to this Agreement, including, without limitation, all registration, qualification, and filing fees, printing expenses, escrow fees, fees and disbursements of counsel for Match and one special counsel for IAC, state securities law fees and expenses, and expenses of any regular or special audits incident to or required by any such registration, but shall not include Selling Expenses, fees and disbursements of other counsel for IAC and the compensation of regular employees of Match, which shall be paid in any event by Match.

 

Section 5.20                              Restricted Securities ” shall mean any Registrable Securities that have not been registered under the Securities Act.

 

Section 5.21                              Rule 144 ” shall mean Rule 144 as promulgated by the Commission under the Securities Act, as such Rule may be amended from time to time, or any similar successor rule that may be promulgated by the Commission.

 

Section 5.22                              Rule 145 ” shall mean Rule 145 as promulgated by the Commission under the Securities Act, as such Rule may be amended from time to time, or any similar successor rule that may be promulgated by the Commission.

 

Section 5.23                              Sale Transaction ” shall mean the consummation of a merger, consolidation or amalgamation between Match and another entity (other than a Subsidiary of Match) in which Match is acquired by such other entity or a Person who controls such entity, or a sale of all or substantially all of the assets of Match to another entity, other than a Subsidiary of Match.

 

Section 5.24                              Securities Act ” shall mean the Securities Act of 1933, as amended, or any similar successor federal statute and the rules and regulations thereunder, all as the same shall be in effect from time to time.

 

Section 5.25                              Selling Expenses ” shall mean all underwriting discounts, selling commissions and stock transfer taxes applicable to the sale of Registrable Securities and fees and disbursements of counsel for IAC (other than the fees and disbursements of one special counsel to IAC included in Registration Expenses).

 

Section 5.26                              Subsidiary ” has the meaning set forth in the Transaction Agreement.

 

16



 

Section 5.27                              Transaction Agreement ” shall mean the Master Transaction Agreement between IAC and Match, dated as of November 24, 2015.

 

Section 5.28                              Voting Power ” shall have the meaning ascribed to such term for purposes of Section 368(c) of the Code.

 

17



 

IN WITNESS WHEREOF, the parties have signed this Investor Rights Agreement effective as of the date first set forth above.

 

 

 

 

IAC/INTERACTIVECORP

 

 

 

 

 

By:

/s/ Gregg Winiarski

 

 

Name: Gregg Winiarski

 

 

Title: Executive Vice President, General Counsel

 

 

 

 

 

MATCH GROUP, INC.

 

 

 

 

 

By:

/s/ Joanne Hawkins

 

 

Name: Joanne Hawkins

 

 

Title: Vice President and Assistant Secretary

 

[Signature page to Investor Rights Agreement]

 


Exhibit 10.1

 

MASTER TRANSACTION AGREEMENT

 

by and between

 

IAC/INTERACTIVECORP

 

and

 

MATCH GROUP, INC.

 

Dated as of

 

November 24, 2015

 



 

TABLE OF CONTENTS

 

ARTICLE 1 INTERPRETATION

3

 

 

Section 1.01

Definitions

3

Section 1.02

Schedules

12

Section 1.03

Effective Time

13

 

 

 

ARTICLE 2 THE TRANSACTION

13

 

 

Section 2.01

Separation

13

Section 2.02

Implementation

13

Section 2.03

Transfer of Match Assets; Assumption of Match Liabilities

13

Section 2.04

Match Assets

13

Section 2.05

Deferred Match Assets

14

Section 2.06

Excluded Assets

14

Section 2.07

Liabilities

15

Section 2.08

Third Party Consents and Government Approvals

16

Section 2.09

Preservation of Agreements

16

Section 2.10

Ancillary Agreements

16

Section 2.11

Resignations

17

Section 2.12

Cooperation

17

Section 2.13

Disclaimer of Representations and Warranties

17

 

 

 

ARTICLE 3 DEFERRED SEPARATION TRANSACTIONS

18

 

 

 

Section 3.01

Deferred Transfer Assets

18

Section 3.02

Unreleased Liabilities

18

Section 3.03

No Additional Consideration

19

 

 

 

ARTICLE 4 COVENANTS

19

 

 

 

Section 4.01

General Covenants

19

Section 4.02

Covenants of Match

20

 

 

 

ARTICLE 5 MUTUAL RELEASES; INDEMNIFICATION; INSURANCE

20

 

 

 

Section 5.01

Release of Pre-Transaction Claims

20

Section 5.02

Indemnification by Match

22

Section 5.03

Indemnification by IAC

23

Section 5.04

Procedures for Indemnification of Third Party Claims

24

Section 5.05

Procedures for Indemnification of Direct Claims

25

Section 5.06

Adjustments to Liabilities

25

Section 5.07

Payments

26

Section 5.08

Contribution

26

Section 5.09

Remedies Cumulative

26

Section 5.10

Survival of Indemnities

26

Section 5.11

Shared Liabilities

26

Section 5.12

Insurance Matters

27

 



 

ARTICLE 6 EXCHANGE OF INFORMATION; CONFIDENTIALITY

28

 

 

 

Section 6.01

Agreement for Exchange of Information; Archives

28

Section 6.02

Ownership of Information

29

Section 6.03

Compensation for Providing Information

29

Section 6.04

Record Retention

29

Section 6.05

Other Agreements Providing for Exchange of Information

29

Section 6.06

Production of Witnesses; Records; Cooperation

29

Section 6.07

Confidentiality

30

Section 6.08

Protective Arrangements

31

Section 6.09

Disclosure of Third Party Information

31

 

 

 

ARTICLE 7 DISPUTE RESOLUTION

32

 

 

 

Section 7.01

Interpretation; Agreement to Resolve Disputes

32

Section 7.02

Dispute Resolution; Mediation

32

Section 7.03

Arbitration

33

Section 7.04

Costs

33

Section 7.05

Continuity of Service and Performance

33

 

 

 

ARTICLE 8 CERTAIN OTHER MATTERS

33

 

 

 

Section 8.01

Further Assurances

33

Section 8.02

Auditors and Audits; Annual and Quarterly Financial Statements and Accounting

34

 

 

 

ARTICLE 9 SOLE DISCRETION OF IAC; TERMINATION

36

 

 

 

Section 9.01

Sole Discretion of IAC

36

Section 9.02

Termination

36

 

 

 

ARTICLE 10 MISCELLANEOUS

36

 

 

 

Section 10.01

Limitation of Liability

36

Section 10.02

Counterparts

36

Section 10.03

Entire Agreement; Coordination

37

Section 10.04

Construction

37

Section 10.05

Signatures

38

Section 10.06

Assignability

38

Section 10.07

Third Party Beneficiaries

38

Section 10.08

Payment Terms

38

Section 10.09

Governing Law

39

Section 10.10

Notices

39

Section 10.11

Severability

39

Section 10.12

Publicity

39

Section 10.13

Survival of Covenants

39

Section 10.14

Waivers of Default; Conflicts

40

Section 10.15

Amendments

40

 

2



 

MASTER TRANSACTION AGREEMENT

 

This Master Transaction Agreement, dated as of November 24, 2015 (this “ Agreement ”), is entered into by and between IAC/InterActiveCorp, a Delaware corporation (“ IAC ”) and Match Group, Inc., a Delaware corporation and wholly owned subsidiary of IAC (“ Match ,” and, together with IAC, the “ Parties ” and each a “ Party ”).

 

RECITALS

 

WHEREAS, the board of directors of IAC (the “ IAC Board ”) has determined that it is appropriate, desirable and in the best interests of IAC and its stockholders to complete the IPO (as defined below);

 

WHEREAS, the Parties are entering into this Agreement in connection with the initial public offering (“ IPO ”) of the Match Common Stock (as defined below) pursuant to a registration statement on Form S-1 filed with the Securities and Exchange Commission (the “ SEC ”) under the Securities Act of 1933, as amended;

 

WHEREAS, immediately following the consummation of the IPO, IAC will continue to own at least 80.1% of the combined voting power of the outstanding Match Voting Stock and at least 80.1% of the outstanding Match Class C Common Stock, if any such shares are outstanding (each as defined herein);

 

WHEREAS, in order to effect the IPO, the IAC Board has determined that it is appropriate, desirable and in the best interests of IAC and its stockholders for IAC and Match to enter into a series of agreements as set forth in Section 2.10 of this Agreement  (the “ Ancillary Agreements ”);

 

WHEREAS, each of Match and IAC has determined that it is necessary and desirable, on or prior to the Effective Time (as defined herein), to allocate and transfer to the applicable Group (as defined below) those Assets, and to allocate and assign to the applicable Group responsibility for those Liabilities, in respect of the activities of the Match Businesses (as defined herein) and the Remaining Businesses (as defined herein); and

 

WHEREAS, the Parties wish to set forth in this Agreement the terms on which, and the conditions subject to which, they intend to implement the measures described above.

 

NOW THEREFORE, in consideration of the mutual agreements, covenants and other provisions set forth in this Agreement, the Parties hereby agree as follows:

 

ARTICLE 1

 

INTERPRETATION

 

Section 1.01                              Definitions .  The capitalized words and expressions and variations thereof used in this Agreement or in its schedules, unless a clearly inconsistent meaning is required under the context, shall have the meanings set forth below:

 

Accounts Receivable ”  means, in respect of any Person, (a) all trade accounts and notes receivable and other rights to payment from customers and all security for such accounts or rights to payment, including all trade accounts receivable representing amounts receivable in respect of goods shipped or products sold or otherwise disposed of or services rendered to customers, (b) all other accounts

 

3



 

and notes receivable and all security for such accounts or notes, and (c) any claim, remedy or other right relating to any of the foregoing.

 

Action ” means any demand, action, suit, countersuit, arbitration, inquiry, proceeding or investigation by any Person or any Governmental Authority or before any Governmental Authority or any arbitration or mediation tribunal.

 

Affiliate ” of any Person means any other Person that, directly or indirectly, controls, is controlled by, or is under common control with such first Person as of the date on which or at any time during the period for when such determination is being made.  For purposes of this definition, “ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or other interests, by contract or otherwise, and the terms “ Controlling ” and “ Controlled ” have meanings correlative to the foregoing.

 

Agreement ” means this Master Transaction Agreement, including all of the Schedules and Annexes hereto.

 

Ancillary Agreements ” has the meaning set forth in Section 2.10 .

 

Applicable Law ” means any applicable law, statute, rule or regulation of any Governmental Authority or any outstanding order, judgment, injunction, ruling or decree by any Governmental Authority.

 

Appurtenances ” means, in respect of any Land, all privileges, rights, easements, servitudes, hereditaments and appurtenances and similar interests belonging to or for the benefit of such Land, including all easements and servitudes appurtenant to and for the benefit of any Land (a “ Dominant Parcel ”) for, and as the primary means of, access between, the Dominant Parcel and a public way, or for any other use upon which lawful use of the Dominant Parcel for the purposes for which it is presently being used is dependent, and all rights existing in and to any streets, alleys, passages and other rights-of-way included therein or adjacent thereto.

 

Asset-Related Claims ” means, in respect of any Asset, all claims of the owner against Third Parties relating to such Asset, whether choate or inchoate, known or unknown, absolute or contingent, disclosed or non-disclosed.

 

Assets ” means assets, properties and rights (including goodwill), wherever located (including in the possession of owners or Third Parties or elsewhere), whether real, personal or mixed, tangible or intangible, movable or immovable, in each case whether or not recorded or reflected or required to be recorded or reflected on the books and records or financial statements of a Person, including the following:

 

(a)                                  Real Property;

 

(b)                                  Tangible Personal Property;

 

(c)                                   Inventories;

 

(d)                                  Accounts Receivable;

 

(e)                                   Contractual Assets;

 

4



 

(f)                                    Governmental Authorizations;

 

(g)                                   Business Records;

 

(h)                                  Intangible Property Rights;

 

(i)                                      Insurance Benefits;

 

(j)                                     Asset-Related Claims; and

 

(k)                                  Deposit Rights.

 

Business Concern ” means any corporation, company, limited liability company, partnership, joint venture, trust, unincorporated association or any other form of association.

 

Business Day ” means any day excluding (a) Saturday, Sunday and any other day which, in New York City is a legal holiday or (b) a day on which banks are authorized by Applicable Law to close in New York City.

 

Business Records ” means, in respect of any Person, all data and Records relating to such Person, including client and customer lists and Records, referral sources, research and development reports and Records, cost information, sales and pricing data, customer prospect lists, customer and vendor data, production reports and Records, service and warranty Records, equipment logs, operating guides and manuals, financial and accounting Records, personnel Records (subject to Applicable Law), creative materials, advertising materials, promotional materials, studies, reports, correspondence and other similar documents and records.

 

Claim Notice ” has the meaning set forth in Section 5.04(b) .

 

Claimant Party ” has the meaning set forth in Section 7.02(a) .

 

Confidential Information ” has the meaning set forth in Section 6.07(a) .

 

Consent ” means any approval, consent, ratification, waiver or other authorization.

 

Contract ” means any contract, agreement, lease, purchase and/or commitment, license, consensual obligation, promise or undertaking (whether written or oral and whether express or implied) that is legally binding on any Person or any part of its property under Applicable Law, including all claims or rights against any Person, choses in action and similar rights, whether accrued or contingent with respect to any such contract, agreement, lease, purchase and/or commitment, license, consensual obligation, promise or undertaking, but excluding this Agreement and any Ancillary Agreement save as otherwise expressly provided in this Agreement or in any Ancillary Agreement .

 

Contractual Asset ” means, in respect of any Person, any Contract of, or relating to, such Person, any outstanding offer or solicitation made by, or to, such Person to enter into any Contract, and any promise or undertaking made by any other Person to such Person, whether or not legally binding.

 

Deferred Beneficiary ” has the meaning set forth in Section 3.01(b) .

 

Deferred Excluded Asset ” has the meaning set forth in Section 3.01(a) .

 

Deferred Match Asset ” has the meaning set forth in Section 3.01(a) .

 

5



 

Deferred Transactions ” has the meaning set forth in Section 8.01(a) .

 

Deferred Transfer Asset ” has the meaning set forth in Section 3.01 .

 

Deposit Rights ” means rights relating to deposits and prepaid expenses, claims for refunds and rights of set-off in respect thereof.

 

DGCL ” means the General Corporation Law of the State of Delaware.

 

Disclosing Party ” has the meaning set forth in Section 6.08 .

 

Dispute ” has the meaning set forth in Section 7.02(a) .

 

Dispute Notice ” has the meaning set forth in Section 7.02(a) .

 

Dispute Parties ” has the meaning set forth in Section 7.02(a) .

 

Effective Time ” means the time of the closing of the first registered offering pursuant to the IPO Registration Statement.

 

EHS Liabilities ” means any Liability arising from or under any Environmental Law or Occupational Health and Safety Law.

 

Employee Matters Agreement ” means the Employee Matters Agreement among the Parties to be dated as of the date hereof.

 

Encumbrance ” means, with respect to any asset, mortgages, liens, hypothecations, pledges, charges, security interests or encumbrances of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under Applicable Law.

 

Environmental Law ” means any Applicable Law from any Governmental Authority (a) relating to the protection of the environment (including air, water, soil and natural resources) or (b) the use, storage, handling, release or disposal of Hazardous Substances.

 

Exchange Act ” means the United States Securities Exchange Act of 1934, as amended.

 

Excluded Assets ” has the meaning set forth in Section 2.06 .

 

Fiscal Year ” means the 12-month accounting period of IAC or Match, as the context requires, ended on December 31 of a given year.

 

GAAP ” has the meaning set forth in Section 2.04(d) .

 

Governmental Authority ” means any court, arbitration panel, governmental or regulatory authority, agency, stock exchange, commission or body.

 

Governmental Authorization ” means any Consent, license, certificate, franchise, registration or permit issued, granted, given or otherwise made available by, or under the authority of, any Governmental Authority or pursuant to any Applicable Law.

 

Ground Lease Property ” means, in respect of any Person, any Land, Improvement or Appurtenance of such Person that is subject to a Ground Lease.

 

6



 

Ground Lease ” means any long-term lease (including any emphyteotic lease) of Land in which most of the rights and benefits comprising ownership of the Land and the Improvements thereon or to be constructed thereon, if any, and the Appurtenances thereto for the benefit thereof, are transferred to the tenant for the term thereof.

 

Group ” means the IAC Group or the Match Group, as the context requires.

 

Hazardous Substance ” means any substance to the extent presently listed, defined, designated or classified as hazardous, toxic or radioactive under any applicable Environmental Law, including petroleum and any derivative or by-products thereof.

 

IAC ” has the meaning set forth in the preamble hereto.

 

IAC Auditor ” has the meaning set forth in Section 8.02(a) .

 

IAC Board ” has the meaning set forth in the recitals hereto.

 

IAC Claims ” has the meaning set forth in Section 5.01(b) .

 

IAC Group ” means IAC, its Subsidiaries (subject to Section 2.04(b) , other than any member of the Match Group) and their respective domestic and international businesses, assets and liabilities.

 

IAC Releasors ” has the meaning set forth in Section 5.01(b) .

 

Improvements ” means, in respect of any Land, all buildings, structures, plants, fixtures and improvements located on such Land, including those under construction.

 

Indemnified Party ” has the meaning set forth in Section 5.04(a) .

 

Indemnifying Party ” has the meaning set forth in Section 5.04(b) .

 

Information ” means any information, whether or not patentable or copyrightable, in written, oral, electronic or other tangible or intangible forms, stored in any medium, including studies, reports, test procedures, research, records, books, contracts, instruments, surveys, discoveries, ideas, concepts, know-how, techniques, manufacturing techniques, manufacturing variables, designs, specifications, drawings, blueprints, diagrams, models, prototypes, samples, products, product plans, flow charts, data, computer data, disks, diskettes, tapes, computer programs or other software, marketing plans, customer information, customer services, supplier information, communications by or to attorneys (including attorney-client privileged communications), memos and other materials prepared by attorneys or under their direction (including attorney work product), and other technical, financial, employee or business information or data.

 

Insurance Benefits ” means, in respect of any Asset or Liability, all insurance benefits, including rights to Insurance Proceeds, arising from or relating to such Asset or Liability.

 

Insurance Proceeds ” means those monies (in each case, net of any costs or expenses incurred in the collection thereof and net of any applicable premium adjustments (including reserves and retrospectively rated premium adjustments)):

 

(a)                                  received by an insured from an insurance carrier; or

 

7



 

(b)                                  paid by an insurance carrier on behalf of the insured.

 

Intangible Property Rights ” means, in respect of any Person, all intangible rights and property of such Person, including IT Assets, going concern value and goodwill.

 

Intercompany Accounts ” means all balances related to indebtedness, including any intercompany indebtedness, loan, guaranty, receivable, payable or other account between a member of any Group, on the one hand, and a member of any other Group, on the other hand.

 

Internal Control Audit and Management Assessments ” has the meaning set forth in Section 8.02(c) .

 

I nventories ” means, in respect of any Person, all inventories of such Person wherever located, including all finished goods, (whether or not held at any location or facility of such Person or in transit to or from such Person), work in process, raw materials, spare parts and all other materials and supplies to be used or consumed by the Person in production of finished goods.

 

Investor Rights Agreement ” means the Investor Rights Agreement among the Parties to be dated as of the date hereof.

 

IPO ” has the meaning set forth in the recitals hereto.

 

IPO Registration Statement ” means the registration statement on Form S-1 first publicly filed by Match Group, Inc. with the SEC on October 16, 2015 (together with all amendments and supplements thereto) in connection with the registration under the Securities Act of Match’s Common Stock.

 

IT Assets ” means computers, computer software, firmware, middleware, servers, workstations, routers, hubs, switches, data communications lines, all other information technology equipment and all associated documentation.

 

Land ” means, in respect of any Person, all parcels and tracts of land in which the Person has an ownership interest.

 

Liability ” means, with respect to any Person, any and all losses, claims, charges, debts, demands, actions, causes of action, suits, damages, obligations, payments, costs and expenses, sums of money, accounts, reckonings, bonds, specialties, indemnities and similar obligations, exoneration covenants, contracts, controversies, agreements, promises, doings, omissions, variances, guarantees, make whole agreements and similar obligations, and other liabilities and requirements, including all contractual obligations, whether absolute or contingent, matured or unmatured, liquidated or unliquidated, accrued or unaccrued, known or unknown, joint or several, whenever arising, and including those arising under any Applicable Law, Action, threatened or contemplated Action (including the costs and expenses of demands, assessments, judgments, settlements and compromises relating thereto and attorneys’ fees and any and all costs and expenses, whatsoever reasonably incurred in investigating, preparing or defending against any such Actions or threatened or contemplated Actions) or Order of an y Governmental Authority or any award of any arbitrator or mediator of any kind, and those arising under any contract, commitment or undertaking, in each case, whether or not recorded or reflected or otherwise disclosed or required to be recorded or reflected or otherwise disclosed, on the books and records or financial statements of any Person, including any Specified Financial Liability, EHS Liability or Liability for Taxes.

 

Match ” has the meaning set forth in the preamble hereto.

 

8



 

Match Assets ” has the meaning set forth in Section 2.04 .

 

Match Auditor ” has the meaning set forth in Section 8.02(a) .

 

Match Balance Sheet ” with respect to the Match Business, Match, any Match Entity or the Match G roup, means the Match Group Balance Sheet.

 

Match Business ” means (a) the businesses and operations of Match and its Subsidiaries as described in the Prospectus forming a part of the IPO Registration Statement, (b) any other business conducted primarily through the use of the Match Assets prior to the Effective Time and (c) the businesses and operations of Business Concerns acquired or established by or for Match or any of its Subsidiaries after the date of this Agreement.

 

Match Capital Stock ” means Match Common Stock, Match Class B Common Stock and Match Class C Common Stock.

 

Match Claims ” has the meaning set forth in Section 5.01(a) .

 

Match Class B Common Stock ” means the Class B common stock, par value $0.001, of Match Group, Inc.

 

Match Class C Common Stock ” means the Class C common stock, par value $0.001, of Match Group, Inc.

 

Match Common Stock ” means the common stock, par value $0.001, of Match Group, Inc.  For the avoidance of doubt, Match Common Stock does not include Match Class B Common Stock or the Match Class C Common Stock.

 

Match Entities ” means those Business Concerns which are identified on Schedule 2.04(b)  and which on and after the Effective Time form part of the Match Group.

 

Match Group ” means Match, the Match Entities and each other Person (other than any member of the IAC Group) that is a direct or indirect Subsidiary of Match immediately after the Effective Time, and each Person that becomes a Subsidiary of Match after the Effective Time.

 

Match Group Balance Sheet ” has the meaning set forth in Section 2.04(c) .

 

Match Indemnified Parties ” has the meaning set forth in Section 5.03 .

 

Match Liabilities ” has the meaning set forth in Section 2.07 .

 

Match Opening Balance Sheet ” has the meaning set forth in Section 2.04(e).

 

Match Releasors ” has the meaning set forth in Section 5.01(a) .

 

Match Reports ” has the meaning set forth in Section 8.02(f) .

 

Match Voting Stock ” means the Match Common Stock and the Match Class B Common Stock, and any other classes of common stock of Match Group, Inc. that are entitled to vote on all matters presented to the shareholders. For the avoidance of doubt, Match Voting Stock does not include the Match Class C Common Stock.

 

9



 

Non-IAC Parties ” has the meaning set forth in Section 5.01(b) .

 

Non-Match Parties ” has the meaning set forth in Section 5.01(a) .

 

Occupational Health and Safety Law ” means any Applicable Law designed to provide safe and healthful working conditions and to reduce occupational safety and health hazards, and any program, whether governmental or private (such as those promulgated or sponsored by industry associations and insurance companies), designed to provide safe and healthful working conditions.

 

Order ” means any order, injunction, judgment, decree, ruling, assessment or arbitration award of any Governmental Authority or arbitrator.

 

Ordinary Course of Business ” means any action taken by a Person that is in the ordinary course of the normal, day-to-day operations of such Person and is consistent with the past practices of such Person.

 

Parties ” has the meaning set forth in the preamble hereto.

 

Person ” means any individual, Business Concern or Governmental Authority.

 

Potential Contributor ” has the meaning set forth in Section 5.06(a) .

 

Prime Rate ” means the rate which JPMorgan Chase & Co. (or any successor thereto or other major money center commercial bank agreed to by the Parties hereto) announces from time to time as its prime lending rate, as in effect from time to time.

 

Prospectus ” with respect to the IPO Registration Statement means the prospectus forming a part of the IPO Registration Statement, as the same may be amended or supplemented from time to time.

 

Providing Party ” has the meaning set forth in Section 6.08 .

 

Real Property ” means any Land and Improvements and all Appurtenances thereto and any Ground Lease Property.

 

Record ” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

 

Regulation S-K ” means Regulation S-K of the General Rules and Regulations promulgated by the SEC pursuant to the Securities Act.

 

Remaining Business ” means all businesses of IAC other than the Match Businesses.

 

Remaining IAC Entity ” means any Business Concern that is a member of the IAC Group on and after the Effective Time.

 

Representatives ” means, with respect to any Person, any of such Person’s directors, officers, employees, agents, consultants, advisors, accountants or attorneys.

 

Requesting Party ” has the meaning set forth in Section 6.01(a) .

 

Responding Party ” has the meaning set forth in Section 7.02(a) .

 

10



 

Response ” has the meaning set forth in Section 7.02(a) .

 

Responsible Group ” has the meaning set forth in Section 3.02(c) .

 

Responsible Party ” has the meaning set forth in Section 3.02(a) .

 

Retained Liabilities ” has the meaning set forth in Section 2.07 .

 

Retaining Person ” has the meaning set forth in Section 3.01(b) .

 

SEC ” means the Securities and Exchange Commission.

 

Securities Act ” means the United States Securities Act of 1933, as amended.

 

Senior Party Representatives ” has the meaning set forth in Section 7.02(a) .

 

Services Agreement ” means the Services Agreement among the Parties to be dated as of the date hereof.

 

Shared Liability ” of Match means any Liability from, relating to, arising out of, or derivative of any matter, claim or litigation, whether actual or potential, associated with any securities law litigation relating to any public disclosure (or absence of public disclosure) with respect to Match, the Match Business or the Match Entities in the Match Group made by IAC prior to the Effective Time, including the fees and expenses of outside counsel retained by IAC in connection with the defense and/or settlement of any such matter.  For purposes of this definition, the phrase “securities law litigation” shall include claims alleging any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact in alleged violation of the Securities Act, the Exchange Act or any similar state law and any claims premised on, related to or derivative of such alleged statements, omissions or violations, whether payable to any current, past or future holders of IAC securities or any Match securities, to any of the co-defendants in such action or to any Governmental Authority.  Notwithstanding anything in Section 5.06 to the contrary, the amount of any Shared Liability shall be net of any insurance proceeds actually recovered by or on behalf of any member of any Group.

 

Specified Financial Liabilities ” means, in respect of any Person, all liabilities, obligations, contingencies, instruments and other Liabilities of a financial nature with Third Parties of, or relating to, such Person, including any of the following:

 

(a)                                  foreign exchange contracts;

 

(b)                                  letters of credit;

 

(c)                                   guarantees of Third Party loans;

 

(d)                                  surety bonds (excluding surety for workers’ compensation self-insurance);

 

(e)                                   interest support agreements on Third Party loans;

 

(f)                                    performance bonds or guarantees issued by Third Parties;

 

(g)                                   swaps or other derivatives contracts;

 

(h)                                  recourse arrangements on the sale of receivables or notes; and

 

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(i)                                      indemnities for damages for any breach of, or any inaccuracy in, any representation or warranty or any breach of, or failure to perform or comply with, any covenant, undertaking or obligation.

 

Subsidiary ” of any Person means any corporation, partnership, limited liability entity, joint venture or other organization, whether incorporated or unincorporated, of which a majority of the total voting power of capital stock or other interests entitled (without the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof, is at the time owned or controlled, directly or indirectly, by such Person.

 

Tangible Personal Property ” means, in respect of any Person, all machinery, equipment, tools, furniture, office equipment, supplies, materials, vehicles and other items of tangible personal or movable property (other than Inventories and IT Assets) of every kind and wherever located that are owned or leased by the Person, together with any express or implied warranty by the manufacturers, sellers or lessors of any item or component part thereof and all maintenance Records and other documents relating thereto.

 

Tax ” has the meaning ascribed to such term in the Tax Sharing Agreement.

 

Tax Sharing Agreement ” means the Tax Sharing Agreement among the Parties dated as of the date hereof.

 

Third Party ” means a Person (a) that is not a Party to this Agreement, other than a member of the Match Group or a member of the IAC Group and (b) that is not an Affiliate thereof.

 

Third Party Claim ” has the meaning set forth in Section 5.04(b) .

 

Third Party Consent ” has the meaning set forth in Section 2.08 .

 

Transaction ” has the meaning set forth in Section 2.01 .

 

Transfer Impediment ” has the meaning set forth in Section 3.01(a) .

 

Unreleased Group ” has the meaning set forth in Section 3.02(a) .

 

Unreleased Liabilities ” has the meaning set forth in Section 3.02(a) .

 

Unreleased Party ” has the meaning set forth in Section 3.02(a) .

 

Unreleased Person ” has the meaning set forth in Section 3.02(a) .

 

Section 1.02                              Schedules .  The following schedules are attached to this Agreement and form a part hereof:

 

(a)                                  Schedule 2.04(a)  Certain Match Assets

 

(b)                                  Schedule 2.04(b)  Match Entities

 

(c)                                   Schedule 2.04(c)  Match Group Balance Sheet

 

(d)                                  Schedule 2.06(a)  Excluded Assets

 

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(e)                                   Schedule 2.07(a)  Match Liabilities

 

(f)                                    Schedule 2.07(b)  Retained Liabilities

 

(g)                                   Schedule 2.11 Certain Resignation Exceptions

 

Section 1.03                              Effective Time .  This Agreement shall be effective as of the Effective Time.

 

ARTICLE 2

 

THE TRANSACTION

 

Section 2.01                              Separation .  To the extent not already complete, IAC and Match agree to implement a separation of their Respective Businesses (the “ Transaction ”) and to cause the Match Businesses to be transferred to Match and its Subsidiaries and the Remaining Business to be held by IAC and its Subsidiaries (other than Match and its Subsidiaries) as of the Effective Time, on the terms and subject to the conditions set forth in this Agreement.  The Parties acknowledge that the Transaction is intended to result in (i) Match directly or indirectly, operating the Match Business, owning the Match Assets and assuming the Match Liabilities, and (ii) IAC directly or indirectly (other than through the Match Entities), operating the Remaining Business, owning the Assets other than the Match Assets and assuming the Liabilities other than the Match Liabilities, as set forth in this Article 2 .

 

Section 2.02                              Implementation .  The Transaction shall be completed in accordance with the agreed general principles, objectives and other provisions set forth in this Article 2 and shall be implemented in the following manner:

 

(a)                                  through the performance by the Parties of all other provisions of this Agreement;

 

(b)                                  through the transfer from time to time following the Effective Time of the Deferred Transfer Assets as described in Article 3 ; and

 

(c)                                   through the completion from time to time following the Effective Time of the Deferred Transactions, as described in Section 8.01(a) .

 

Section 2.03                              Transfer of Match Assets; Assumption of Match Liabilities .  On the terms and subject to the conditions set forth in this Agreement, and in furtherance of the Transaction, with effect as of the Effective Time:

 

(a)                                  To the extent not already complete, IAC agrees to cause the Match Assets to be contributed, assigned, transferred, conveyed and delivered, directly or indirectly, to Match, and Match agrees to accept all of the Match Assets and all of the rights, title and interest in and to all of the Match Assets owned, directly or indirectly, by IAC which, except with respect to Deferred Match Assets and Unreleased Liabilities, will result in Match owning, directly or indirectly, the Match Business.

 

(b)                                  Match agrees to accept, assume and faithfully perform, discharge and fulfill all of the Match Liabilities in accordance with their respective terms.

 

Section 2.04                              Match Assets .  For the purposes of this Agreement, “ Match Assets ” shall mean, without duplication, those Assets whether now existing or hereinafter acquired, used or

 

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contemplated to be used or held for use exclusively or primarily in the ownership, operation or conduct of the Match Business or relating exclusively or primarily to the Match Business or to a Match Entity including the following:

 

(a)                                  all Assets expressly identified in this Agreement or in any Ancillary Agreement or in any Schedule hereto or thereto, including those, if any, listed on Schedule 2.04(a) , as Assets to be transferred to, or retained by, Match or any other member of the Match Group;

 

(b)                                  the outstanding capital stock, units or other equity interests of the Match Entities (other than equity interests in Match), as listed on Schedule 2.04(b) , and the Assets owned by the Match Entities;

 

(c)                                   all Assets properly reflected on the balance sheet set forth on Schedule 2.04(c)  (the “ Match Group Balance Sheet ”), excluding Assets disposed of by IAC or any other Subsidiary or entity controlled by IAC subsequent to the date of the Match Group Balance Sheet;

 

(d)                                  all Assets that have been written off, expensed or fully depreciated by IAC or any Subsidiary or entity controlled by IAC that, had they not been written off, expensed or fully depreciated, would have been reflected on the Match Group Balance Sheet in accordance with accounting principles generally accepted in the United States (“ GAAP ”);

 

(e)                                   all Assets acquired by IAC or any Subsidiary or entity controlled by IAC after the date of the Match Group Balance Sheet and that would be reflected on the balance sheet of Match as of the Effective Time (the “ Match Opening Balance Sheet ”), if such balance sheet were prepared in accordance with GAAP; and

 

(f)                                    all Match Assets transferred to Match or any member of the Match Group pursuant to Section 8.01(a) ; provided , however , that any such transfer shall take effect under Section 8.01(a)  and not under this Section 2.04 .

 

Notwithstanding the foregoing, there shall be excluded from the definition of Match Assets under this Section 2.04 Business Records to the extent they are included in or primarily relate to any Excluded Asset or Retained Liability or the Remaining Business or their transfer is prohibited by Applicable Law or by agreements between Match and IAC or any member of their respective Groups and Third Parties or otherwise would subject Match or IAC or any member of their respective Groups to liability for such transfer.  Access to such excluded Business Records shall be governed by Article 6 .

 

Section 2.05                              Deferred Match Assets .  Notwithstanding anything to the contrary contained in Section 2.04 or elsewhere in this Agreement, the Match Assets shall not include any Deferred Match Assets.  The transfer to Match or any member of the Match Group of any such Deferred Match Asset shall only be completed at the time, in the manner and subject to the conditions set forth in Article 3 .

 

Section 2.06                              Excluded Assets .

 

(a)                                  Notwithstanding anything to the contrary contained in Section 2.04 or 2.05 or elsewhere in this Agreement, the following Assets of IAC (or of any other relevant member of the IAC Group) that would otherwise be included among the Match Assets shall not be transferred to Match (or any other member of the Match Group), shall not form part of the Match Assets and shall remain the

 

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exclusive property of IAC (or the relevant member of the IAC Group) on and after the Effective Time (the “ Excluded Assets ”):

 

(i)                                      any Asset expressly identified on Schedule 2.06(a) ; and

 

(ii)                                   any Asset transferred to IAC or to any other relevant member of the IAC Group pursuant to Section 8.01 ; provided , however , that any such transfers shall take effect under Section 8.01 and not under this Section 2.06 .

 

(b)                                  Notwithstanding anything to the contrary in this Agreement, Excluded Assets shall not include Deferred Excluded Assets.  The transfer to IAC (or to the relevant member of the IAC Group) of any such Asset shall be completed at the time, in the manner and subject to the conditions set forth in Article 3 .

 

Section 2.07                              Liabilities .  For the purposes of this Agreement, Liabilities shall be identified as “ Match Liabilities ,” or “ Retained Liabilities ” under the following principles:

 

(a)                                  any Liability which is expressly identified on Schedule 2.07(a)  shall be a Match Liability;

 

(b)                                  any Liability which is expressly identified on Schedule 2.07(b)  shall be a Retained Liability;

 

(c)                                   50% of any Shared Liability shall be a Match Liability and 50% shall be a Retained Liability;

 

(d)                                  any Liability of a Match Entity, whether arising or accruing prior to, on or after the Effective Time and whether the facts on which it is based occurred on, prior to or after the Effective Time and whether or not reflected on the Match Group Balance Sheet or on the Match Opening Balance Sheet, shall be a Match Liability, unless it is expressly identified in this Agreement (including on any Schedule hereto) or in any Ancillary Agreement as a Liability to be assumed or retained by IAC (or any other member of the IAC Group), in which case it shall be a Retained Liability;

 

(e)                                   any Liability relating to, arising out of, or resulting from the conduct of, the Match Business (as conducted at any time prior to, on or after the Effective Time) or relating to a Match Asset or a Deferred Match Asset and whether arising or accruing prior to, on or after the Effective Time and whether the facts on which it is based occurred on, prior to or after the Effective Time and whether or not reflected on the Match Group Balance Sheet or the Match Opening Balance Sheet, shall be a Match Liability, unless it is expressly identified in this Agreement (including on any Schedule hereto) or in any Ancillary Agreement as a Liability to be assumed or retained by IAC (or any other member of the IAC Group), in which case it shall be a Retained Liability;

 

(f)                                    any Liability which is reflected or otherwise disclosed as a liability or obligation of the Match Group on the Match Group Balance Sheet shall be a Match Liability;

 

(g)                                   any Liability which would be reflected or otherwise disclosed on the Match Opening Balance Sheet, if such balance sheet were prepared under GAAP, shall be a Match Liability;

 

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(h)                                  any Liability pursuant to contracts entered into by IAC and/or any member of the IAC Group (i) in connection with the acquisition, by IAC and/or any member of the IAC Group, of any Match Entity and/or Match Business or (ii) otherwise relating primarily to a Match Entity and/or the conduct of the Match Business, shall be a Match Liability, unless it is expressly identified in this Agreement (including on any Schedule hereto) or in any Ancillary Agreement as a Liability to be assumed or retained by IAC (or any other member of the IAC Group), in which case it shall be a Retained Liability;

 

(i)                                      any Liability of a Remaining IAC Entity, whether arising or accruing prior to, on or after the Effective Time and whether the facts on which it is based occurred on, prior to or after the Effective Time, shall be Retained Liability, unless it is determined to be a Match Liability pursuant to clause (a), (b), (c), (d), (f), (g) or (h) above, in which case it shall be a Match Liability as set forth thereunder;

 

(j)                                     any Liability relating to, arising out of, or resulting from the conduct of, a Remaining Business (as conducted at any time prior to, on or after the Effective Time) or relating to an Excluded Asset and whether arising or accruing prior to, on or after the Effective Time and whether the facts on which it is based occurred on, prior to or after the Effective Time, shall be a Retained Liability, unless it is determined to be a Match Liability pursuant to clause (a), (b), (c), (d), (f), (g) or (h) above, in which case it shall be a Match Liability as set forth thereunder; and

 

(k)                                  any Liability of Match or any other member of the Match Group under this Agreement or any Ancillary Agreement shall be a Match Liability and any Liability of IAC or any other member of the IAC Group under this Agreement or any Ancillary Agreement shall be a Retained Liability.

 

Section 2.08                              Third Party Consents and Government Approvals .  To the extent that the Transaction or any transaction contemplated thereby requires a Consent from any Third Party (a “ Third Party Consent ”) or any Governmental Authorization, the Parties will use commercially reasonable efforts to obtain all such Third Party Consents and Governmental Authorizations prior to the Effective Time.  If the Parties fail to obtain any such Third Party Consent or Governmental Authorization prior to the Effective Time, the matter shall be dealt with in the manner set forth in Article 3 .

 

Section 2.09                              Preservation of Agreements .  The Parties each agree that all written agreements, arrangements, commitments and understandings between any member or members of the Match Group, on the one hand, and any member or members of the IAC Group, on the other hand, shall remain in effect in accordance with their terms from and after the Effective Time, unless otherwise terminated by the relevant Parties thereto.

 

Section 2.10                              Ancillary Agreements .  On or prior to the Effective Time, the Parties shall execute and deliver or, as applicable, cause the appropriate members of their respective Groups to execute and deliver, each of the following agreements (collectively, the “ Ancillary Agreements ”):

 

(a)                                  the Employee Matters Agreement;

 

(b)                                  the Tax Sharing Agreement;

 

(c)                                   the Investor Rights Agreement;

 

(d)                                  the Services Agreement; and

 

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(e)                                   such other agreements and instruments as may relate to or be identified in any of the foregoing agreements.

 

Section 2.11                              Resignations .

 

(a)                                  IAC agrees to cause each Person who is a director or an officer of any Match Entity and who will not be or become a director or officer of that same Match Entity at the Effective Time to resign from such position with effect as of the Effective Time; provided , however , that this Section 2.11 shall not apply to the persons in the capacities set forth on Schedule 2.11 .

 

(b)                                  Match agrees to cause each Person (i) who is a director or an officer of a Remaining IAC Entity and (ii) who will become an employee of any Match Entity at the Effective Time to resign from such position with effect as of the Effective Time.

 

(c)                                   Each of Match and IAC agrees to obtain all such letters of resignation or other evidence of such resignations as may be necessary or desirable in performing their respective obligations under this Section 2.11 .

 

Section 2.12                              Cooperation .  The Parties shall cooperate in all aspects of the Transaction and shall sign all such documents and perform all such other acts as may be necessary or desirable to give full effect to the Transaction; and each of Match and IAC shall cause each other member of its respective Group to do likewise.

 

Section 2.13                              Disclaimer of Representations and Warranties .

 

(a)                                  Each of Match and IAC (on behalf of itself and each other member of its respective Group) understands and agrees that, except as expressly set forth herein or in any Ancillary Agreement, no Party to this Agreement, any Ancillary Agreement or any other agreement or document contemplated by this Agreement, any Ancillary Agreement or otherwise, makes any representation or warranty, express or implied, regarding any of the Match Assets, Match Entities, Match Businesses, Excluded Assets, Match Liabilities or Retained Liabilities including any warranty of merchantability or fitness for a particular purpose, or any representation or warranty regarding any Consents or Governmental Authorizations required in connection therewith or their transfer, regarding the value or freedom from Encumbrances of, or any other matter concerning, any Match Asset or Excluded Asset, or regarding the absence of any defense or right of setoff or freedom from counterclaim with respect to any claim or other Match Asset or Excluded Asset, including any Account Receivable of any Party, or as to the legal sufficiency of any assignment, document or instrument delivered hereunder to convey title to any Match Asset or Excluded Asset upon the execution, delivery and filing hereof or thereof.

 

(b)                                  Except as may expressly be set forth herein or in any Ancillary Agreement, all Match Assets and Excluded Assets are being transferred on an “as is, where is” basis, at the risk of the respective transferees without any warranty whatsoever on the part of the transferor, formal or implicit, legal, statutory or conventional (and, in the case of any Real Property, by means of a quitclaim or similar form deed or conveyance).

 

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ARTICLE 3

 

DEFERRED SEPARATION TRANSACTIONS

 

Section 3.01                              Deferred Transfer Assets .

 

(a)                                  If the transfer to, or retention by, any member of the Match Group of any Asset that would otherwise constitute a Match Asset (a “ Deferred Match Asset ”) or the transfer to, or retention by, any member of the IAC Group of any Asset that would otherwise constitute an Excluded Asset (a “ Deferred Excluded Asset ,” and together with a Deferred Match Asset, a “ Deferred Transfer Asset ”) cannot be accomplished without giving rise to a violation of Applicable Law, or without obtaining a Third Party Consent or a Governmental Authorization (collectively, a “ Transfer Impediment ”) and any such Third Party Consent or Governmental Authorization has not been obtained prior to the Effective Time, then such Asset shall be dealt with in the manner described in this Section 3.01 .

 

(b)                                  Pending removal of such Transfer Impediment, the Person holding the Deferred Transfer Asset (the “ Retaining Person ”) shall hold such Deferred Transfer Asset for the use and benefit, insofar as reasonably possible, of the Party to whom the transfer of such Asset could not be made at the Effective Time (the “ Deferred Beneficiary ”).  The Retaining Person shall use commercially reasonable efforts to preserve such Asset and its right, title and interest therein and take all such other action as may reasonably be requested by the Deferred Beneficiary (in each case, at such Deferred Beneficiary’s expense) in order to place such Deferred Beneficiary, insofar as reasonably possible, in the same position as it would be in if such Asset had been transferred to it or retained by it with effect as of the Effective Time and so that, subject to the standard of care set forth above, all the benefits and burdens relating to such Deferred Transfer Asset, including possession, use, risk of loss, potential for gain, enforcement of rights against third parties and dominion, control and command over such Asset, are to inure from and after the Effective Time to such Deferred Beneficiary and the members of its Group.  The provisions set forth in this Article 3 contain all the obligations of the Retaining Person vis-à-vis the Deferred Beneficiary with respect to the Deferred Transfer Asset and the Retaining Person shall not be bound vis-à-vis the Deferred Beneficiary by any other obligations under Applicable Law.

 

(c)                                   The Parties shall continue on and after the Effective Time to use commercially reasonable efforts to remove all Transfer Impediments; provided , however , that no Party shall be required to make any unreasonable payment or assume any material obligations therefor.  As and when any Transfer Impediment is removed, the relevant Deferred Transfer Asset shall forthwith be transferred to its Deferred Beneficiary at no additional cost and in a manner and on terms consistent with the relevant provisions of this Agreement and the Ancillary Agreements, including Section 2.13(b)  hereof, and any such transfer shall take effect as of the date of its actual transfer.

 

(d)                                  Notwithstanding the foregoing or any provision of Applicable Law, a Retaining Person shall not be obligated, in connection with the foregoing, to expend any money in respect of a Deferred Transfer Asset unless the necessary funds are advanced by the Deferred Beneficiary of such Deferred Transfer Asset, other than reasonable attorneys’ fees and recording or similar fees, all of which shall be promptly reimbursed by the Deferred Beneficiary of such Deferred Transfer Asset.

 

Section 3.02                              Unreleased Liabilities .

 

(a)                                  If at any time on or after the Effective Time, any member of the Match Group or the IAC Group shall remain obligated to any Third Party in respect of any Liability of the other Party or its Group (such other Party with respect such Unreleased Liability and such Unreleased Person, the “ Responsible Party ”) — the following provisions shall apply.  The Liabilities referred to in this Section

 

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3.02 are hereinafter referred to as the “ Unreleased Liabilities ,” the Person remaining obligated for such Liability in a manner contrary to what is intended under this Agreement is hereinafter referred to as the “ Unreleased Person ,” such Unreleased Person’s Party, the “ Unreleased Party ” and such Unreleased Person’s Group, the “ Unreleased Group ”.

 

(b)                                  Each Unreleased Person shall remain obligated to Third Parties for such Unreleased Liability as provided in the relevant Contract, Applicable Law or other source of such Unreleased Liability and shall pay and perform such Unreleased Liability as and when required, in accordance with its terms.

 

(c)                                   Each Responsible Party shall indemnify, defend and hold harmless each Match Indemnified Party or IAC Indemnified Party, as the context requires, that is an Unreleased Person from and against any Liabilities arising in respect of each Unreleased Liability of such Unreleased Person that is a Liability of such Responsible Party.  Each Responsible Party shall take, and shall cause the members of its Group (the “ Responsible Group ”) to take, such other actions as may be reasonably requested by the applicable Unreleased Party in accordance with the provisions of this Agreement in order to place the applicable Unreleased Group, insofar as reasonably possible, in the same position as it would be in if such Unreleased Liability had been fully contributed, assigned, transferred, conveyed, and delivered to, and accepted and assumed or retained, as applicable, by such Responsible Party (or any relevant member of the Responsible Group) with effect as of the Effective Time and so that all the benefits and burdens relating to such Unreleased Liability, including possession, use, risk of loss, potential for gain, and dominion, control and command over such Unreleased Liability, are to inure from and after the Effective Time to the member or members of the Responsible Group.

 

(d)                                  Each Responsible Party shall continue on and after the Effective Time to use commercially reasonable efforts to cause the applicable Unreleased Persons to be released from their respective Unreleased Liabilities.

 

(e)                                   If, as and when it becomes possible to delegate, novate or extinguish any Unreleased Liability in favor of an Unreleased Person, the relevant Parties shall promptly sign all such documents and perform all such other acts, and shall cause each member of their respective Groups, as applicable, to sign all such documents and perform all such other acts, as may be necessary or desirable to give effect to such delegation, novation, extinction or other release without payment of any further consideration by the Unreleased Person.

 

Section 3.03                              No Additional Consideration .  For the avoidance of doubt, the transfer or assumption of any Assets or Liabilities under this Article 3 shall be effected without any additional consideration by any Party hereunder.

 

ARTICLE 4

 

COVENANTS

 

Section 4.01                              General Covenants .  Each Party covenants with and in favor of the other Parties that it shall, subject, in the case of IAC, to Article 9 :

 

(a)                                  do and perform all such acts and things, and execute and deliver all such agreements, assurances, notices and other documents and instruments as may reasonably be required of it to facilitate the carrying out of the intent and purpose of this Agreement;

 

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(b)                                  cooperate with and assist the other Party, both before and after the Effective Time, in dealing with transitional matters relating to or arising from the Transaction, this Agreement, the IPO or the Ancillary Agreements; and

 

(c)                                   cooperate in preparing and filing all documentation (i) to effect all necessary applications, notices, petitions, filings and other documents; and (ii) to obtain as promptly as reasonably practicable all Consents and Governmental Authorizations necessary or advisable to be obtained from any Third Party and/or any Governmental Authority in order to consummate the transactions contemplated by this Agreement (including all approvals required under applicable antitrust laws).

 

Section 4.02                              Covenants of Match .  In addition to the covenants of Match provided for elsewhere in this Agreement, Match covenants and agrees with, and in favor of, IAC that it shall:

 

(a)                                  use commercially reasonable efforts and do all things reasonably required of it to cause the Transaction and the IPO to be completed;

 

(b)                                  use its commercially reasonable efforts to take all such action as may be necessary or desirable under applicable state securities and blue sky laws of the United States (and any comparable laws under any foreign jurisdictions) in connection with the Transaction and the IPO;

 

(c)                                   perform and, as applicable, cause each member of the Match Group to perform each of its and their respective obligations under each Ancillary Agreement and that certain underwriting agreement, dated as of November 18, 2015 by and between Match, J.P. Morgan Securities LLC and Allen & Company LLC the as representatives of the several underwriters listed in Schedule 1 thereto.

 

Nothing in this Section 4.02 shall be deemed, by itself, to shift Liability for any portion of any registration statement or prospectus filed with the SEC by Match, including the IPO Registration Statement and the corresponding prospectus, to IAC.

 

ARTICLE 5

 

MUTUAL RELEASES; INDEMNIFICATION; INSURANCE

 

Section 5.01                              Release of Pre-Transaction Claims .

 

(a)                                  Except as provided in Section 5.01(c) , effective as of the Effective Time, Match does hereby, on behalf of itself and each other member of the Match Group, their respective Affiliates (other than any member of the IAC Group), successors and assigns, and all Persons who at any time prior to the Effective Time have been stockholders (other than any member of the IAC Group), directors, officers, agents or employees of any member of the Match Group (in each case, in their respective capacities as such) (the “ Match Releasors ”), unequivocally, unconditionally and irrevocably release and discharge members of the IAC Group, their respective Affiliates (other than any member of the Match Group), successors and assigns, and all Persons who at any time prior to the Effective Time have been stockholders, directors, officers, agents or employees of any member of the IAC Group (in each case, in their respective capacities as such), and their respective heirs, executors, trustees, administrators, successors and assigns (the “ Non-Match Parties ”), from any and all Actions, causes of action, choses in action, cases, claims, suits, debts, dues, damages, judgments and liabilities, of any nature whatsoever, in

 

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law, at equity or otherwise, whether direct, derivative or otherwise, which have been asserted against a Non-Match Party or which, whether currently known or unknown, suspected or unsuspected, fixed or contingent, and whether or not concealed or hidden, the Match Releasors ever could have asserted or ever could assert, in any capacity, whether as partner, employer, agent or otherwise, either for itself or as an assignee, heir, executor, trustee, administrator, successor or otherwise for or on behalf of any other Person, against the Non-Match Parties, relating to any claims or transactions or occurrences whatsoever, up to but excluding the Effective Time, including in connection with the Transaction and the IPO and all activities to implement the Transaction and the IPO (“ Match Claims ”); and the Match Releasors hereby unequivocally, unconditionally and irrevocably agree not to initiate proceedings with respect to, or institute, assert or threaten to assert, any Match Claim.

 

(b)                                  Except as provided in Section 5.01(c) , effective as of the Effective Time, IAC does hereby, on behalf of itself and each other member of the IAC Group, their respective Affiliates (other than any member of the Match Group), successors and assigns, and all Persons who at any time prior to the Effective Time have been stockholders, directors, officers, agents or employees of any member of the IAC Group (in each case, in their respective capacities as such) (the “ IAC Releasors ”), unequivocally, unconditionally and irrevocably release and discharge Match, the other members of the Match Group, their respective Affiliates (other than any member of the IAC Group), successors and assigns, and all Persons who at any time prior to the Effective Time have been stockholders (other than any member of the IAC Group), directors, officers, agents or employees of the Match Group (in each case, in their respective capacities as such), and their respective heirs, executors, trustees, administrators, successors and assigns (the “ Non-IAC Parties ”), from any and all Actions, causes of action, choses in action, cases, claims, suits, debts, dues, damages, judgments and liabilities, of any nature whatsoever, in law, at equity or otherwise, whether direct, derivative or otherwise, which have been asserted against a Non-IAC Party or which, whether currently known or unknown, suspected or unsuspected, fixed or contingent, and whether or not concealed or hidden, the IAC Releasors ever could have asserted or ever could assert, in any capacity, whether as partner, employer, agent or otherwise, either for itself or as an assignee, heir, executor, trustee, administrator, successor or otherwise for or on behalf of any other Person, against the Non-IAC Parties, relating to any claims or transactions or occurrences whatsoever, up to but excluding the Effective Time including in connection with the Transaction, the IPO and all activities to implement the Transaction and the IPO (“ IAC Claims ”); and the IAC Releasors hereby unequivocally, unconditionally and irrevocably agree not to initiate proceedings with respect to, or institute, assert or threaten to assert, any IAC Claim.

 

(c)                                   Nothing contained in Section 5.01(a)  or Section 5.01(b)  shall impair any right of any Person to enforce this Agreement, any Ancillary Agreement or, any agreement, arrangement, commitment or understanding that is contemplated by Section 2.10 or any other agreement, arrangement, commitment or understanding that is entered into after the Effective Time among any member of the Match Group, on the one hand, and any member of the IAC Group, on the other hand, nor shall anything contained in the foregoing sections be interpreted as terminating as of the Effective Time any rights under any such agreements, contracts, commitments or understandings.  For purposes of clarification, nothing contained in Section 5.01(a)  or Section 5.01(b)  shall release any Person from:

 

(i)                                      any Liability provided in or resulting from this Agreement or any of the Ancillary Agreements;

 

(ii)                                   any Liability provided in or resulting from any agreement among any member of the Match Group on the one hand, and any member of the IAC Group on the other hand, that is contemplated by Section 2.10 (including for greater certainty, any Liability resulting or flowing from any breaches of such agreements that arose prior to the Effective Time);

 

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(iii)                                any Liability provided in or resulting from any other agreement, arrangement, commitment or understanding that is entered into after the Effective Time between any member of the Match Group on the one hand, and any member of the IAC Group on the other hand;

 

(iv)                               any Liability that the Parties may have with respect to indemnification or this Article 5 for Third Party Claims;

 

(v)                                  any Liability for unpaid Intercompany Accounts; or

 

(vi)                               any Liability the release of which would result in the release of any Person other than a Person released pursuant to this Section 5.01 .

 

In addition, nothing contained in Section 5.01(a)  or Section 5.01(b)  hereof shall release any member of the Match Group from honoring its existing obligations to indemnify any director, officer or employee of the IAC Group who was a director, officer or employee of such member of the Match Group on or prior to the Effective Time, to the extent that such director, officer or employee becomes a named defendant in any litigation involving such company and was entitled to such indemnification pursuant to the existing obligations.

 

(d)                                  Match shall not make, and shall not permit any other member of the Match Group to make, any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or any indemnification, against IAC or any member of the IAC Group or any other Person released pursuant to Section 5.01(a) , with respect to any Liabilities released pursuant to Section 5.01(a) .

 

(e)                                   IAC shall not make, and shall not permit any other member of the IAC Group to make, any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or any indemnification, against Match or any other member of the Match Group or any other Person released pursuant to Section 5.01(b) , with respect to any Liabilities released pursuant to Section 5.01(b) .

 

Section 5.02                              Indemnification by Match .  Except as provided in Section 5.04 and Section 5.05 and subject to Section 10.01 , Match shall, and shall cause the other members of the Match Group to, fully indemnify, defend and hold harmless  IAC, each other member of the IAC Group and each of its respective current and former directors, officers and employees, and each of the heirs, executors, trustees, administrators, successors and assigns of any of the foregoing (collectively, the “ IAC Indemnified Parties ”), from and against any and all Liabilities of the IAC Indemnified Parties relating to, arising out of or resulting from any of the following items (without duplication):

 

(a)                                  the Match Business, any Match Entity, any Match Asset, any Match Liability or, subject to Article 3 , any Deferred Match Asset;

 

(b)                                  any breach of, or failure to perform or comply with, any covenant, undertaking or obligation of, this Agreement or any of the Ancillary Agreements, by Match or any other member of Match Group, subject to any limitation on liability set forth in any Ancillary Agreement for any such breach or failure to perform or comply with any covenant, undertaking or obligation under such Ancillary Agreement; and

 

(c)                                   any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact required to be stated therein or necessary to make the

 

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statements therein not misleading, with respect to all information (i) contained in the IPO Registration Statement, any issuer free writing prospectus or any preliminary, final or supplemental prospectus forming a part of the IPO Registration Statement (other than information provided by IAC to Match specifically for inclusion in the IPO Registration Statement, any issuer free writing prospectus or any preliminary, final or supplemental prospectus forming a part of the IPO Registration Statement), (ii) contained in any public filings made by Match with the Commission following the date of the IPO and (iii) provided by Match to IAC specifically for inclusion in IAC’s annual or quarterly or current reports following the date of the IPO to the extent (A) such information pertains to (x) a Match Entity or (y) the Match Business or (B) IAC has provided prior written notice to Match that such information will be included in one or more annual or quarterly or current reports, specifying how such information will be presented, and the information is included in such annual or quarterly or current reports; provided that this sub-clause (B) shall not apply to the extent that any such Liability arises out of or results from, or in connection with, any action or inaction of any Remaining IAC Entity, including as a result of any misstatement or omission of any information by any Remaining IAC Entity to Match.

 

Section 5.03                              Indemnification by IAC .  Except as provided in Section 5.04 and Section 5.05 and subject to Section 10.01 , IAC shall indemnify, defend and hold harmless Match, each other member of the Match Group and each of their respective current and former directors, officers and employees, and each of the heirs, executors, trustees, administrators, successors and assigns of any of the foregoing (collectively, the “ Match Indemnified Parties ”), from and against any and all Liabilities of the Match Indemnified Parties relating to, arising out of or resulting from any of the following items (without duplication):

 

(a)                                  any Remaining Business or any Retained Liability;

 

(b)                                  any breach of, or failure to perform or comply with, any covenant, undertaking or obligation of, this Agreement or any of the Ancillary Agreements, by IAC or any other member of the IAC Group, subject to any limitation on liability set forth in any Ancillary Agreement for any such breach or failure to perform or comply with any covenant, undertaking or obligation under such Ancillary Agreement; and

 

(c)                                   any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, with respect to all information (i) contained in the IPO Registration Statement, any issuer free writing prospectus or any preliminary, final or supplemental prospectus forming a part of the IPO Registration Statement provided by IAC specifically for inclusion therein to the extent such information pertains to (x) the Remaining IAC Entities or (y) the Remaining Business and (ii) provided by IAC to Match specifically for inclusion in Match’s annual or quarterly or current reports following the date of the IPO to the extent (A) such information pertains to (x) a Remaining IAC Entity or (y) the Remaining Business or (B) Match has provided written notice to IAC that such information will be included in one or more annual or quarterly or current reports, specifying how such information will be presented, and the information is included in such annual or quarterly or current reports; provided that this sub-clause (B) shall not apply to the extent that any such Liability arises out of or results from, or in connection with, any action or inaction of any Match Entity, including as a result of any misstatement or omission of any information by any Match Entity to IAC.

 

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Section 5.04                              Procedures for Indemnification of Third Party Claims .

 

(a)                                  All claims for indemnification relating to a Third Party Claim by any indemnified party (an “ Indemnified Party ”) hereunder shall be asserted and resolved as set forth in this Section 5.04 .

 

(b)                                  In the event that any written claim or demand for which an indemnifying party (an “ Indemnifying Party ”) may have liability to any Indemnified Party hereunder is asserted against or sought to be collected from any Indemnified Party by a Third Party (a “ Third Party Claim ”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third Party Claim, notify the Indemnifying Party in writing of such Third Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, and any other material details pertaining thereto (a “ Claim Notice ”); provided , however , that the failure to timely give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third Party Claim.  The Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by a court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “ Notice Period ”) to notify the Indemnified Party whether it desires to defend the Indemnified Party against such Third Party Claim; provided that in the event a Claim Notice in respect of indemnification sought pursuant to Section 5.02(c)  so specifies, the Indemnified Party shall have the right to require the Indemnifying Party, and in such event the Indemnifying Party shall be required, to defend the Indemnified Party against such Third Party Claim at the Indemnifying Party’s expense.

 

(c)                                   In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense, with counsel reasonably satisfactory to the Indemnified Party at the Indemnifying Party’s expense.  Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing.  The Indemnified Party shall participate in any such defense at its expense, provided that such expense shall be the responsibility of the Indemnifying Party if (i) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case the Indemnifying Party shall not be responsible for expenses in respect of more than one counsel for the Indemnified Party in any single jurisdiction), or (ii) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently defend a Third Party Claim it has assumed the defense of, as provided in the first sentence of this Section 5.04(c) .  The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third Party Claim on a basis that would result in (i) the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party or any of its Affiliates, (ii) a finding or admission of a violation of Applicable Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates or (iii) a finding or admission that would have an adverse effect on other claims made or threatened against the Indemnified Party or any of its Affiliates.

 

(d)                                  If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise or (ii) after assuming the defense of a Third Party Claim or after receiving a Claim Notice

 

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specified in the proviso to the last sentence of Section 5.04(b) , fails to take reasonable steps necessary to defend diligently such Third Party Claim within ten (10) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim.  The Indemnified Party shall not settle a Third Party Claim without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld.

 

(e)                                   The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third Party Claim, including by providing access to each other’s relevant business records and other documents, and employees; it being understood that the reasonable costs and expenses of the Indemnified Party relating thereto shall be Liabilities, subject to indemnification.

 

(f)                                    The Indemnified Party and the Indemnifying Party shall use commercially reasonable efforts to avoid production of confidential information (consistent with Applicable Law), and to cause all communications among employees, counsel and others representing either party to a Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.

 

Section 5.05                              Procedures for Indemnification of Direct Claims .  Any claim for indemnification made directly by the Indemnified Party against the Indemnifying Party that does not result from a Third Party Claim shall be asserted by written notice from the Indemnified Party to the Indemnifying Party specifically claiming indemnification hereunder.  Such Indemnifying Party shall have a period of 45 days after the receipt of such notice within which to respond thereto.  If such Indemnifying Party does not respond within such 45-day period, such Indemnifying Party shall be deemed to have accepted responsibility to make payment and shall have no further right to contest the validity of such claim.  If such Indemnifying Party does respond within such 45-day period and rejects such claim in whole or in part, such Indemnified Party shall be free to pursue resolution as provided in Article 7 .

 

Section 5.06                              Adjustments to Liabilities .

 

(a)                                  If an Indemnified Party receives any payment from an Indemnifying Party in respect of any Liabilities and the Indemnified Party could have recovered all or a part of such Liabilities from a Third Party (a “ Potential Contributor ”) based on the underlying claim or demand asserted against such Indemnifying Party, such Indemnified Party shall, to the extent permitted by Applicable Law, assign such of its rights to proceed against the Potential Contributor as are necessary to permit such Indemnifying Party to recover from the Potential Contributor the amount of such payment.

 

(b)                                  If notwithstanding Section 5.07 an Indemnified Party receives an amount from a Third Party in respect of a Liability that is the subject of indemnification hereunder after all or a portion of such Liability has been paid by an Indemnifying Party pursuant to this Agreement, the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (i) the amount paid by the Indemnifying Party in respect of such Liability, plus the amount received from the Third Party in respect thereof, over (ii) the full amount of the Liability.

 

(c)                                   An insurer who would otherwise be obligated to pay any claim shall not be relieved of the responsibility with respect thereto or, solely by virtue of the indemnification provisions hereof, have any subrogation rights with respect thereto, it being expressly understood and agreed that no insurer or any other Third Party shall be entitled to a “wind-fall” (i.e., a benefit they would not be entitled to receive in the absence of the indemnification provisions) by virtue of the indemnification provisions hereof.

 

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Section 5.07                              Payments .  The Indemnifying Party shall pay all amounts payable pursuant to this Article 5 by wire transfer of immediately available funds, promptly following receipt from an Indemnified Party of a bill, together with all accompanying reasonably detailed backup documentation, for a Liability that is the subject of indemnification hereunder, unless the Indemnifying Party in good faith disputes the Liability, in which event it shall so notify the Indemnified Party.  In any event, the Indemnifying Party shall pay to the Indemnified Party, by wire transfer of immediately available funds, the amount of any Liability for which it is liable hereunder no later than three (3) days following any final determination of such Liability and the Indemnifying Party’s liability therefor.  A “final determination” shall exist when (a) the parties to the dispute have reached an agreement in writing, (b) a court of competent jurisdiction shall have entered a final and non-appealable order or judgment, or (c) an arbitration or like panel shall have rendered a final non-appealable determination with respect to disputes the parties have agreed to submit thereto.

 

Section 5.08                              Contribution .  If the indemnification provided for in this Article 5 shall, for any reason, be unavailable or insufficient to hold harmless the Indemnified Party hereunder in respect of any Liability, then each Indemnifying Party shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or payable by such Indemnified Party as a result of such Liability, in such proportion as shall be sufficient to place the Indemnified Party in the same position as if such Indemnified Party were indemnified hereunder, the Parties intending that their respective contributions hereunder be as close as possible to the indemnification under Section 5.02 and Section 5.03 .  If the contribution provided for in the previous sentence shall, for any reason, be unavailable or insufficient to put the Indemnified Party in the same position as if it were indemnified under Section 5.02 or Section 5.03 , as the case may be, then the Indemnifying Party shall contribute to the amount paid or payable by such Indemnified Party as a result of such Liability, in such proportion as shall be appropriate to reflect the relative benefits received by and the relative fault of the Indemnifying Party on the one hand and the Indemnified Party on the other hand with respect to the matter giving rise to the Liability.

 

Section 5.09                              Remedies Cumulative .  The remedies provided in this Article 5 shall be cumulative and, subject to the provisions of Article 7 , shall not preclude assertion by any Indemnified Party of any other rights or the seeking of any and all other remedies against any Indemnifying Party.

 

Section 5.10                              Survival of Indemnities .  The rights and obligations of Match, IAC and their respective Indemnified Parties under this Article 5 shall survive the distribution, sale or other transfer by any Party of any Assets or the delegation or assignment by it of any Liabilities.

 

Section 5.11                              Shared Liabilities .  Notwithstanding anything to the contrary contained in this Agreement:

 

(a)                                  In order to facilitate the defense of any Shared Liability, each of Match and IAC agree that (i) Match and IAC shall cooperate in the defense of any Shared Liability; (ii) each of Match and IAC shall be responsible for the costs of its own in-house counsel and other internal personnel in the defense of any Shared Liability; (iii) IAC shall be entitled to control the defense and/or settlement of any Shared Liability, although Match shall be entitled to observe with counsel of its own selection and at its own expense; provided , however , that after the Effective Time IAC shall not settle all or any portion of any Shared Liability unless any remaining Liability of Match and its Affiliates and their respective current and former officers and directors relating to the Shared Liability will be fully released as a result of such settlement.

 

(b)                                  Each of Match and IAC agree to act in good faith and to use their reasonable best efforts to preserve and maximize the insurance benefits due to be provided under all policies of insurance and to cooperate with one another as necessary to permit each other to access or obtain

 

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the benefits under those policies; provided , however , that nothing hereunder shall be construed to prevent either Party or any other Person from asserting claims for insurance benefits or accepting insurance benefits provided by the policies.  Each of Match and IAC agree to exchange information upon reasonable request of the other Party regarding requests that they have made for insurance benefits, notices of claims, occurrences and circumstances that they have submitted to the insurance companies or other entities managing the policies, responses they have received from those insurance companies or entities, including any payments they have received from the insurance companies and any agreements by the insurance companies to make payments, and any other information that the Parties may need to determine the status of the insurance policies and the continued availability of benefits thereunder.

 

(c)                                   If Match or IAC receives notice or otherwise learns of the assertion by any person or entity (including a Governmental Authority) of a Shared Liability, that Party shall give the other Parties written notice of such Shared Liability, providing notice of such Shared Liability in reasonable detail.  The failure to give notice under this subsection shall not relieve any Party of its Liability for any Shared Liability except to the extent the Party is actually prejudiced by the failure to give such notice.  The Parties shall be deemed to be on notice of any Shared Liability pending prior to the Effective Time.

 

Section 5.12                              Insurance Matters .

 

(a)                                  Match does hereby, for itself and each other member of the Match Group, agree that no member of the IAC Group or any IAC Indemnified Party shall have any liability whatsoever as a result of the insurance policies and practices of IAC and its Affiliates as in effect at any time prior to the Effective Time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, the terms and conditions of any policy, the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise; provided this Section 5.12(a)  shall not negate IAC’s agreement under Section 5.01(a) .

 

(b)                                  IAC agrees to use its reasonable best efforts to cause the interest and rights of Match and the other members of the Match Group as of the Effective Time as insureds or beneficiaries or in any other capacity under occurrence-based insurance policies and programs (and under claims-made policies and programs to the extent a claim has been submitted prior to the Effective Time) of IAC or any other member of the IAC Group in respect of periods prior to the Effective Time to survive the Effective Time for the period for which such interests and rights would have survived without regard to the transactions contemplated hereby to the extent permitted by such policies, and IAC shall continue to administer such policies and programs on behalf of Match and the other relevant members of the Match Group, subject to Match’s reimbursement to IAC and the other relevant members of the IAC Group for the actual out-of-pocket costs of such ongoing administration and the internal costs (based on the proportion of the amount of time actually spent on such matter to such employee’s normal working time) of any employee or agent of IAC of any other relevant member of the IAC Group who will be required to spend at least ten percent of his or her normal working time over any ten (10) Business Days working with respect to any such matter on behalf of Match or any member of the Match Group.  Any proceeds received by IAC or any other member of the IAC Group after the Effective Time under such policies and programs in respect of Match or other members of the Match Group shall be for the benefit of Match and such other members.

 

(c)                                   This Agreement is not intended as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the IAC Group in respect of any insurance policy or any other contract or policy of insurance.

 

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(d)                                  Nothing in this Agreement shall be deemed to restrict any member of the Match Group from acquiring at its own expense any other insurance policy in respect of any Liabilities or covering any period.

 

ARTICLE 6

 

EXCHANGE OF INFORMATION; CONFIDENTIALITY

 

Section 6.01                              Agreement for Exchange of Information; Archives .

 

(a)                                  Without limiting any rights or obligations under any Ancillary Agreement between the Parties and/or any other member of their respective Groups relating to confidentiality, each Party agrees to provide, and to cause its Representatives, its Group members and its respective Group members’ Representatives to provide, to the other Group and any member thereof (a “ Requesting Party ”), at any time before, on or after the Effective Time, subject to the provisions of Section 6.04 and as soon as reasonably practicable after written request therefor, any Information within the possession or under the control of such Party or one of such Persons which the Requesting Party reasonably needs (i) to comply with reporting, disclosure, filing or other requirements imposed on the Requesting Party (including under applicable securities laws) by a Governmental Authority having jurisdiction over the Requesting Party, (ii) for use in any other judicial, regulatory, administrative or other proceeding or in order to satisfy audit, accounting, claims, regulatory, litigation or similar requirements of the Requesting Party, in each case other than claims or allegations that one Party to this Agreement or any of its Group members has or brings against the other Party or any of its Group members, or (iii) subject to the foregoing clause (ii) above, to comply with its obligations under this Agreement or any Ancillary Agreement; provided , however , that in the event that any Party determines that any such provision of Information could be commercially detrimental, violate any Applicable Law or agreement, or waive any attorney-client privilege, the Parties shall take all reasonable measures to permit the compliance with such obligations in a manner that avoids any such harm or consequence.

 

(b)                                  After the Effective Time, Match and the other members of the Match Group shall have access during regular business hours (as in effect from time to time), and upon reasonable advance notice, to the documents and objects of historical significance that relate to the Match Business, the Match Assets or the Match Entities and that are located in archives retained or maintained by IAC or any other member of the IAC Group.  Match and the other members of the Match Group may obtain copies (but not originals) of documents for bona fide business purposes and may obtain objects for exhibition purposes for commercially reasonable periods of time if required for bona fide business purposes, provided that Match shall cause any such objects to be returned promptly, at Match’s expense, in the same condition in which they were delivered to Match or to any member of the Match Group and the other members of the Match Group shall comply with any rules, procedures or other requirements, and shall be subject to any restrictions.  In any event, the foregoing shall not be deemed to restrict the access of IAC or any other member of the IAC Group to any such documents or objects.  Nothing herein shall be deemed to impose any Liability on IAC or any other member of the IAC Group if documents or objects referred to in this Section 6.01 are not maintained or preserved by IAC or any other member of the IAC Group.  Alternatively, IAC, acting reasonably, may request from Match and any other member of the Match Group that they provide IAC with reasonable advance notice, with a list of the requested Information that relates to the Match Business, Match Assets, or Match Entities and IAC shall use, and shall cause the other members of the IAC Group that are in possession of the Information requested to use, commercially reasonable efforts to locate all requested Information that is owned or possessed by IAC or any of its Group members or Representatives.  IAC will make available all such Information for inspection by Match or any other relevant member of the Match Group during normal business hours at the place of business reasonably designated by IAC.  Subject to such confidentiality or security obligations as IAC or

 

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the other relevant members of its Group may reasonably deem necessary, Match and the other relevant members of the Match Group may have all requested Information duplicated.  Alternatively, IAC or the other relevant members of the IAC Group may choose to deliver to Match, at Match’s expense, all requested Information in the form reasonably requested by Match or the Match Group.  At IAC’s request, Match shall cause such Information when no longer needed to be returned to IAC at Match’s expense.

 

(c)                                   Match shall make available and shall cause the Match Group to make available to the IAC Group at least the level of access provided by the IAC Group under Section 6.01(b)  to Match.

 

Section 6.02                              Ownership of Information .  Any Information owned by either Match or IAC (or any of their respective Group members) that is provided to a Requesting Party pursuant to Section 6.01 shall be deemed to remain the property of the providing party.  Unless specifically set forth herein or in any Ancillary Agreement, nothing contained in this Agreement shall be construed as granting or conferring rights of license or otherwise in any such Information.

 

Section 6.03                              Compensation for Providing Information .  The Party requesting Information agrees to reimburse the providing Party for the reasonable out-of-pocket costs, if any, of creating, gathering and copying such Information, to the extent that such costs are incurred for the benefit of the Requesting Party.  Except as may be otherwise specifically provided elsewhere in this Agreement, in the Ancillary Agreements, or in any other agreement between the Parties, such costs shall be computed in accordance with the providing Party’s standard methodology and procedures.

 

Section 6.04                              Record Retention .  To facilitate the possible exchange of Information pursuant to this Article 6 and other provisions of this Agreement after the Effective Time, each of Match and IAC agree to use commercially reasonable efforts to retain, and to cause the members of their respective Group to retain, all Information in their respective possession or control at the Effective Time in accordance with the policies of the IAC Group as in effect at the Effective Time or such other policies as may be reasonably adopted by the appropriate Party after the Effective Time.  Prior to the fifth (5th) anniversary of the Effective Time, neither Match nor IAC will destroy, or permit any member of their respective Groups to destroy, any Information which the other Party or any member of its Group may have the right to obtain pursuant to this Agreement without first using commercially reasonable efforts to notify such other Party of the proposed destruction and giving such other Party the opportunity to take possession of such Information prior to such destruction.

 

Section 6.05                              Other Agreements Providing for Exchange of Information .  The rights and obligations granted or created under this Article 6 are subject to any specific limitations, qualifications or additional provisions on the sharing, exchange, retention or confidential treatment of Information set forth in any Ancillary Agreement.

 

Section 6.06                              Production of Witnesses; Records; Cooperation .

 

(a)                                  After the Effective Time, but only with respect to a Third Party Claim, each Party hereto shall use commercially reasonable efforts to, and shall cause the other relevant members of its Group to use commercially reasonable efforts to, make available to a requesting Party or any member of the Group to which such Requesting Party belongs, upon written request, its then former and current Representatives (and the former and current Representatives of its respective Group members) as witnesses and any books, records or other documents within its control (or that of its respective Group members) or which it (or its respective Group members) otherwise has the ability to make available, to the extent that any such person (giving consideration to business demands of such Representatives) or books, records or other documents may reasonably be required in connection with any Action in which the Requesting Party may from time to time be involved, regardless of whether such Action is a matter

 

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with respect to which indemnification may be sought hereunder.  The Requesting Party shall bear all costs and expenses in connection therewith.

 

(b)                                  If either Match or IAC, being entitled to do so under this Agreement, chooses to defend or to seek to settle or compromise any Third Party Claim, the other Party shall use commercially reasonable efforts to make available to such Party, upon written request, its then former and current Representatives and those of its respective Group members as witnesses and any books, records or other documents within its control (or that of its respective Group members) or which it (or its respective Group members) otherwise has the ability to make available, to the extent that any such Person (giving consideration to business demands of such Representatives) or books, records or other documents may reasonably be required in connection with such defense, settlement or compromise, as the case may be, and shall otherwise cooperate in such defense, settlement or compromise, as the case may be.

 

(c)                                   Without limiting the foregoing, each of Match and IAC shall cooperate and consult, and shall cause their respective Group members to cooperate and consult, to the extent reasonably necessary with respect to any Actions (except in the case of an Action by one Party against the other).

 

(d)                                  The obligation of the Parties to provide witnesses pursuant to this Section 6.06 is intended to be interpreted in a manner so as to facilitate cooperation and shall include the obligation to provide as witnesses inventors and other employees without regard to whether the witness or the employer of the witness could assert a possible business conflict (subject to the limitation set forth in the first sentence of Section 6.06(a)  regarding Third Party Claims).

 

(e)                                   In connection with any matter contemplated by this Section 6.06(e) , the relevant Parties will enter into, and shall cause all other relevant members of their respective Groups to enter into, a mutually acceptable joint defense agreement so as to maintain to the extent practicable any applicable attorney-client privilege or work-product privileges of any member of any Group.

 

Section 6.07                              Confidentiality .

 

(a)                                  Subject to Section 6.08 , Match shall hold, and shall cause each member of the Match Group, its respective Affiliates (whether now an Affiliate or hereafter becoming an Affiliate) and its Representatives to hold, in strict confidence, with at least the same degree of care that applies to IAC’s confidential and proprietary Information pursuant to policies in effect as of the Effective Time, all confidential and proprietary Information concerning the IAC Group (or any member thereof) that is either in such company’s possession (including Information in its possession prior to the date hereof) or furnished by the IAC Group (or any member thereof) or by any of its Affiliates (whether now an Affiliate or hereafter becoming an Affiliate) or Representatives at any time pursuant to this Agreement or any Ancillary Agreement or the transactions contemplated hereby or thereby (any such Information referred to herein as “ Confidential Information ”), and shall not use, and shall cause Match Group members, Affiliates and Representatives not to use, any such Confidential Information other than for such purposes as shall be expressly permitted hereunder or thereunder.  Notwithstanding the foregoing, Confidential Information shall not include Information that is or was (i) in the public domain other than by the breach of this Agreement or by breach of any other agreement relating to confidentiality between or among the relevant Parties and/or their respective Group members, their respective Affiliates or Representatives, (ii) lawfully acquired by the Match Group from a Third Party not bound by a confidentiality obligation, or (iii) independently generated or developed by Persons who do not and did not have access to, or descriptions of, any such confidential or proprietary Information of IAC (or any member of the IAC Group).

 

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(b)                                  Each of Match and IAC shall maintain, and shall cause its respective Group members to maintain, policies and procedures, and develop such further policies and procedures as will from time to time become necessary or appropriate, to ensure compliance with Section 6.07(a) .

 

(c)                                   Each of Match and IAC agrees not to release or disclose, or permit to be released or disclosed, any Confidential Information to any other Person, except its Representatives who need to know such Confidential Information (who shall be advised of their obligations hereunder with respect to such Confidential Information), except in compliance with Section 6.08 .  Without limiting the foregoing, when any Information furnished by either Match or IAC to  the other Party after the Effective Time pursuant to this Agreement or any Ancillary Agreement is no longer needed for the purposes contemplated by this Agreement or any Ancillary Agreement, the Party to which such Information was furnished will promptly, after request of the furnishing Party and at the election of the Party receiving such request, destroy or return to the furnishing Party all such Information in a printed or otherwise tangible form (including all copies thereof and all notes, extracts or summaries based thereon), and destroy all Information in an electronic or otherwise intangible form and certify to the furnishing Party that it has destroyed such Information (and such copies thereof and such notes, extracts or summaries based thereon).  Notwithstanding the foregoing, each of Match and IAC agree that to the extent some Information to be destroyed or returned is retained as data or records for the purpose of business continuity planning or is otherwise not accessible in the Ordinary Course of Business, such data or records shall be destroyed in the Ordinary Course of Business in accordance, if applicable, with the business continuity plan of the applicable Party.

 

Section 6.08                              Protective Arrangements .  In the event that any Party or any member of its Group or any Affiliate of such Party or any of their respective Representatives either determines that it is required to disclose any Confidential Information (the “ Disclosing Party ”) pursuant to Applicable Law or receives any demand under lawful process or from any Governmental Authority to disclose or provide Confidential Information of the other Party (or any member of the Group to which such other Party belongs) (the “ Providing Party ”), the Disclosing Party shall, to the extent permitted by Applicable Law, promptly notify the Providing Party prior to the Disclosing Party disclosing or providing such Confidential Information and shall use commercially reasonable efforts to cooperate with the Providing Party so that the Providing Party may seek any reasonable protective arrangements or other appropriate remedy and/or waive compliance with this Section 6.08 .  All expenses reasonably incurred by the Disclosing Party in seeking a protective order or other remedy will be borne by the Providing Party.  Subject to the foregoing, the Disclosing Party may thereafter disclose or provide such Confidential Information to the extent (but only to the extent) required by such Applicable Law (as so advised by legal counsel) or by lawful process or by such Governmental Authority and shall promptly provide the Providing Party with a copy of the Confidential Information so disclosed, in the same form and format as disclosed, together with a list of all Persons to whom such Confidential Information was disclosed.

 

Section 6.09                              Disclosure of Third Party Information .  Match acknowledges that it and the other members of the Match Group may have in their possession confidential or proprietary Information of Third Parties that was received under confidentiality or non-disclosure agreements with such Third Party while they were part of the IAC Group.  Match will hold, and will cause the other members of the Match Group and their respective Representatives to hold, in strict confidence the confidential and proprietary Information of Third Parties to which it or any other member of the Match Group has access, in accordance with the terms of any agreements entered into prior to the Effective Time between one or more members of the IAC Group and such Third Parties.

 

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ARTICLE 7

 

DISPUTE RESOLUTION

 

Section 7.01                              Interpretation; Agreement to Resolve Disputes .

 

(a)                                  In the event of any ambiguous provision in this Agreement or in any Ancillary Agreement, or any inconsistency or conflict between or among the provisions of this Agreement and one or more Ancillary Agreements or between or among the provisions of the Ancillary Agreements, IAC’s interpretation of such ambiguity or resolution of such inconsistency or conflict shall be final and binding unless such interpretation or resolution is unreasonable or clearly erroneous; it being understood and agreed that the reasonableness of an interpretation or resolution shall be assessed without regard to whether such interpretation or resolution happens to be in IAC’s self-interest.

 

(b)                                  Except as otherwise specifically provided in any Ancillary Agreement, the procedures for discussion, negotiation and dispute resolution set forth in this Article 7 shall apply to all disputes, controversies or claims (whether sounding in contract, tort or otherwise) that may arise out of or relate to, or arise under or in connection with this Agreement or any Ancillary Agreement, or the transactions contemplated hereby or thereby (including all actions taken in furtherance of the transactions contemplated hereby or thereby on or prior to the date hereof), or the commercial or economic relationship of the Parties relating hereto or thereto, between or among any member of the Match Group on the one hand and the IAC Group on the other hand.  Each of Match and IAC agrees on behalf of itself and each member of its respective Group that the procedures set forth in this Article 7 shall be the sole and exclusive procedures in connection with any dispute, controversy or claim relating to any of the foregoing matters and irrevocably waives any right to commence any Action in or before any Governmental Authority, except as otherwise required by Applicable Law.

 

Section 7.02                              Dispute Resolution; Mediation .

 

(a)                                  Either Party (a “ Claimant Party ”) may commence the dispute resolution process of this Section 7.02 by giving the other Party with whom there is such a controversy, claim or dispute written notice (a “ Dispute Notice ”) of any controversy, claim or dispute of whatever nature arising out of or relating to this Agreement or the breach, termination, enforceability or validity thereof (a “ Dispute ”) which has not been resolved in the normal course of business.  Match and IAC shall attempt in good faith to resolve any Dispute by negotiation among their respective executives (“ Senior Party Representatives ”) who have authority to settle the Dispute and who are at a higher level of management than the persons who have direct responsibility for the administration of this Agreement.  Within 15 days after delivery of the Dispute Notice, the receiving Party (the “ Responding Party ” and, together with the Claimant Party, the “ Dispute Parties ”) shall submit to the other Dispute Party a written response (the “ Response ”).  The Dispute Notice and the Response shall include (i) a statement setting forth the position of the Dispute Party giving such notice and a summary of arguments supporting such position and (ii) the name and title of such Dispute Party’s Senior Party Representative and any other persons who will accompany the Senior Party Representative at the meeting at which Match and IAC will attempt to settle the Dispute.  Within 30 days after the delivery of the Dispute Notice, the Senior Party Representatives of Match and IAC shall meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary, to attempt to resolve the Dispute.  Match and IAC shall cooperate in good faith with respect to any reasonable requests for exchanges of information regarding the Dispute or a Response thereto.

 

(b)                                  If the Dispute has not been resolved within 60 days after delivery of the Dispute Notice, or if Match and IAC fail to meet within 30 days after delivery of the Dispute Notice as hereinabove provided, Match and IAC shall make a good faith attempt to settle the Dispute by mediation

 

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pursuant to the provisions of this Section 7.02 before resorting to arbitration contemplated by this Section 7.02 or any other dispute resolution procedure that may be agreed by Match and IAC.

 

(c)                                   All negotiations, conferences and discussions pursuant to this Section 7.02 shall be confidential and shall be treated as compromise and settlement negotiations.  Nothing said or disclosed, nor any document produced, in the course of such negotiations, conferences and discussions that is not otherwise independently discoverable shall be offered or received as evidence or used for impeachment or for any other purpose in any current or future arbitration.

 

(d)                                  Unless Match and IAC agree otherwise, the mediation shall be conducted in accordance with the CPR Institute for Dispute Resolution Model Procedure for Mediation of Business Disputes in effect on the date of this Agreement by a mediator selected by Match and IAC.

 

(e)                                   Within 30 days after the mediator has been selected as provided above, Match, IAC and their respective attorneys shall meet with the mediator for one mediation session of at least four hours, it being agreed that each representative of Match and IAC attending such mediation session shall be a Senior Party Representative with authority to settle the Dispute.  If the Dispute cannot be settled at such mediation session or at any mutually agreed continuation thereof, either Match or IAC may give the other and the mediator a written notice declaring the mediation process at an end.

 

Section 7.03                              Arbitration .  If the Dispute has not been resolved by the dispute resolution process described in Section 7.02 , Match and IAC agree that any such Dispute shall be settled by binding arbitration before JAMS, Inc. in Wilmington, Delaware pursuant to the JAMS Comprehensive Arbitration Rules and Procedures.  Any arbitrator(s) selected to resolve the Dispute shall be bound exclusively by the laws of the State of Delaware without regard to its choice of law rules.  Any decisions of award of the arbitrator(s) will be final and binding upon Match and IAC and may be entered as a judgment by the Dispute Parties hereto.  Any rights to appeal or review such award by any court or tribunal are hereby waived to the extent permitted by law.

 

Section 7.04                              Costs .  The costs of any mediation or arbitration pursuant to this Article 7 shall be shared equally among the Dispute Parties.

 

Section 7.05                              Continuity of Service and Performance .  Unless otherwise agreed in writing, the Dispute Parties will continue to provide service and honor all other commitments under this Agreement and each Ancillary Agreement during the course of dispute resolution pursuant to the provisions of this Article 7 with respect to all matters not subject to such dispute, controversy or claim.

 

ARTICLE 8

 

CERTAIN OTHER MATTERS

 

Section 8.01                              Further Assurances .

 

(a)                                  Except as provided in Section 9.01 , each Party covenants with and in favor of the other Party as follows:

 

(i)                                      prior to, on and after the Effective Time, each of Match and IAC shall, and shall cause the other relevant members of its Group to, cooperate with the other Party, and without any further consideration, but at the expense of the requesting Party, to execute, acknowledge and deliver, or use commercially reasonable efforts to cause to be executed and delivered, all instruments, assurances or documents, including instruments

 

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of conveyance, assignments and transfers, and to make all filings with, and to obtain all consents, approvals or authorizations of, any Governmental Authority or any other Person under any permit, license, agreement, indenture or other instrument (including any Consents or Governmental Authorizations), and to take all such other actions as such Party may reasonably be requested to take by the requesting Party (or any member of its Group) from time to time, consistent with the terms of this Agreement and the Ancillary Agreements, in order to give effect to the provisions, obligations and purposes of this Agreement and the Ancillary Agreements and the other transactions contemplated hereby and thereby; and

 

(ii)                                   to the extent that IAC or Match discovers at any time following the Effective Time any Asset that was intended to be transferred to Match or any other member of the Match Group pursuant to this Agreement was not so transferred at the Effective Time, IAC shall, or shall cause the other relevant members of the IAC Group to promptly, assign and transfer to Match or another member of the Match Group reasonably designated by Match such Asset and all right, title and interest therein in a manner and on the terms consistent with the relevant provisions of this Agreement, including, without limitation, Section 2.13(b) .  Similarly, to the extent that IAC or Match discovers at any time following the Effective Time any Asset that was intended to be retained by IAC or any other member of the IAC Group was not so retained at the Effective Time, Match shall, or shall cause the other relevant members of its Group promptly to, assign and transfer to IAC or any other member of the IAC Group reasonably designated by IAC such Asset and all right, title and interest therein in a manner and on the terms consistent with the relevant provisions of this Agreement, including, without limitation, Section 2.13(b) .  For the avoidance of doubt, the transfer of any Assets under this Article 8 being referred to as “ Deferred Transactions ”).

 

(b)                                  On or prior to the Effective Time, Match, in its capacity as direct and indirect parent company of the members of the Match Group, shall approve or ratify any action of any member of the Match Group as may be necessary or desirable to give effect to the transactions contemplated by this Agreement and the Ancillary Agreements.

 

(c)                                   Prior to the Effective Time, if either Match or IAC identifies any commercial or other service that is needed to assure a smooth and orderly transition of the businesses in connection with the consummation of the transactions contemplated hereby, and that is not otherwise governed by the provisions of this Agreement or any Ancillary Agreement, Match and IAC will cooperate in determining whether there is a mutually acceptable arms’ length basis on which such service can be provided.

 

Section 8.02                              Auditors and Audits; Annual and Quarterly Financial Statements and Accounting .  Each Party agrees that following the Effective Time and until the 90th day following the filing of IAC’s Annual Report on Form 10-K for IAC’s Fiscal Year during which IAC ceased to be required to present consolidated financial statements including Match:

 

(a)                                  Date of Match Auditor’s Opinions .  Match shall use commercially reasonable efforts to enable its auditors (the “ Match Auditor ”) to complete their audit such that they will date their opinion on Match’s audited annual financial statements on the same date that the IAC’s auditors (the “ IAC Auditor ”) date their opinion on IAC’s audited annual financial statements (except to the extent an earlier date is necessary to comply with SEC rules), and to enable IAC to meet its timetable for the printing, filing and public dissemination of IAC’s annual financial statements.

 

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(c)                                   Annual Financial Statements .  Each of Match and IAC shall provide to the other on a timely basis all Information reasonably required to meet such Party’s schedule for the preparation, printing, filing, and public dissemination of its annual financial statements and for management’s assessment of the effectiveness of its disclosure controls and procedures in accordance with Item 307 of Regulation S-K and Match shall provide to IAC on a timely basis all Information reasonably required to meet IAC’s schedule for its report on internal control over financial reporting in accordance with Item 308 of Regulation S-K and its auditor’s audit of its internal control over financial reporting and management’s assessment thereof in accordance with Section 404 of the Sarbanes-Oxley Act of 2002 and the SEC’s and Public Company Accounting Oversight Board’s rules and auditing standards thereunder (such assessments and audit being referred to as the “ Internal Control Audit and Management Assessments ”).  Without limiting the generality of the foregoing, each of IAC and Match will provide all required financial and other Information with respect to their respective companies and their Subsidiaries to their respective auditors in a sufficient and reasonable time and in sufficient detail to permit their respective auditors to take all steps and perform all reviews necessary to provide sufficient assistance to the IAC Auditor and the Match Auditor with respect to respective Information to be included or contained in the annual financial statements of either company and to permit the IAC Auditor and IAC’s management to all complete the Internal Control Audit and Management Assessments.

 

(e)                                   Access to Personnel and Books and Records .

 

(i)                                      Match shall authorize the Match Auditor to make available to the IAC Auditor both the personnel who performed or are performing the annual audits of Match and work papers related to the annual audits of Match, in all cases within a reasonable time prior to the Match Auditor’s opinion date, so that the IAC Auditor is able to perform the procedures it considers necessary to take responsibility for the work of the Match Auditor as it relates to the IAC Auditor’s report on IAC’s financial statements, all within sufficient time to enable IAC to meet its timetable for the printing, filing and public dissemination of IAC’s annual financial statements;

 

(ii)                                   IAC shall authorize the IAC Auditor to make available to the Match Auditor both the personnel who performed or are performing the annual audits of IAC and work papers related to the annual audits of IAC, in all cases within a reasonable time prior to the IAC Auditor’s opinion date, so that the Match Auditor is able to perform the procedures it considers necessary to take responsibility for the work of the IAC Auditor as it relates to the Match Auditor’s report on Match’s financial statements, all within sufficient time to enable Match to meet its timetable for the printing, filing and public dissemination of its annual financial statements.

 

(iii)                                Match shall make available to the IAC Auditor and IAC’s management its personnel and books and records in a reasonable time prior to the IAC Auditor’s opinion date and IAC’s management’s assessment date so that the IAC Auditor and IAC’s management are able to perform the procedures they consider necessary to conduct the Internal Control Audit and Management Assessments.

 

(f)                                    Match Reports .  Match will deliver to IAC a substantially final draft, as soon as the same is prepared, of (i) the first report to be filed with the SEC that includes Match’s audited financial statements for the year ended December 31, 2015 and (ii) each subsequent report to be filed with the SEC that includes Match’s audited year-end financial statements or Match’s quarterly unaudited financial statements (the “ Match Reports ”); provided , however , that Match may continue to revise the Match Reports prior to the filing thereof, which changes will be

 

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delivered to IAC as soon as reasonably practicable; provided , further , that the respective personnel of IAC and Match will actively consult with each other regarding any changes which Match may consider making to the Match Reports and related disclosures prior to the anticipated filing with the SEC, with particular focus on any changes which would have an effect upon IAC’s financial statements or related disclosures.

 

Nothing in this Section 8.01 shall require any Party to violate any agreement with any Third Party regarding the confidentiality of confidential and proprietary Information relating to that Third Party or its business; provided , however , that in the event that a Party is required under this  Section 8.01 to disclose any such Information, such Party shall use commercially reasonable efforts to seek to obtain such Third Party Consent to the disclosure of such Information.

 

ARTICLE 9

 

SOLE DISCRETION OF IAC; TERMINATION

 

Section 9.01                              Sole Discretion of IAC .  Notwithstanding any other provision of this Agreement, until the occurrence of the Effective Time, IAC shall have the sole and absolute discretion:

 

(a)                                  to determine whether to proceed with all or any part of the Transaction, including the IPO, and to determine the timing of and any and all conditions to the completion of the Transaction or any part thereof or of any other transaction contemplated by this Agreement, including the IPO; and

 

(b)                                  to amend or otherwise change, delete or supplement, from time to time, any term or element of the Transaction, the IPO, or any or all of the other transactions contemplated  by this Agreement.

 

Section 9.02                              Termination .  This Agreement and all Ancillary Agreements may be terminated and the transactions contemplated hereby may be amended, supplemented, modified or abandoned in any respect at any time prior to the Effective Time, by and in the sole and absolute discretion of IAC without the approval of Match or of the stockholders of IAC.  In the event of such termination, no Party shall have any liability of any kind to any other Party or any other Person.

 

ARTICLE 10

 

MISCELLANEOUS

 

Section 10.01                       Limitation of Liability .  In no event shall any member of the Match Group or the IAC Group be liable to any member of the other Group for any special, consequential, indirect, collateral, incidental or punitive damages or lost profits or failure to realize expected savings or other commercial or economic loss of any kind, however caused and on any theory of liability (including negligence) arising in any way out of this Agreement, whether or not such Person has been advised of the possibility of any such damages; provided , however , that the foregoing limitations shall not limit either Party’s indemnification obligations for Liabilities with respect to Third Party Claims as set forth in Article 5 .  The provisions of Article 7 shall be the Parties’ sole recourse for any breach hereof or any breach of the Ancillary Agreements.

 

Section 10.02                       Counterparts .  This Agreement and each Ancillary Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and

 

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shall become effective when one or more counterparts have been signed by each of the parties thereto and delivered to the other party.

 

Section 10.03                       Entire Agreement; Coordination .  This Agreement, the Ancillary Agreements, and the Schedules, Exhibits and Annexes hereto and thereto and the specific agreements contemplated hereby or thereby contain the entire agreement between Match and IAC with respect to the subject matter hereof and supersede all previous agreements, oral or written, negotiations, discussions, writings, understandings, commitments and conversations with respect to such subject matter.  No agreements or understandings exist between Match and IAC other than those set forth or referred to herein or therein.  In the event of any inconsistency between this Agreement and the Ancillary Agreements with respect to matters addressed in the Ancillary Agreements, the provisions of the Ancillary Agreements shall control.  For the avoidance of doubt, the allocation of Taxes, indemnification for Taxes, control of Tax proceedings, exchange of Tax information and the retention of Tax records shall be governed exclusively by the Tax Sharing Agreement.

 

Section 10.04                       Construction .  In this Agreement and each of the Ancillary Agreements, unless a clear contrary intention appears:

 

(a)                                  the singular number includes the plural number and vice versa;

 

(b)                                  reference to any Person includes such Person’s successors and assigns but, if applicable, only if such successors and assigns are not prohibited by this Agreement or the relevant Ancillary Agreement, and reference to a Person in a particular capacity excludes such Person in any other capacity or individually;

 

(c)                                   reference to any gender includes each other gender;

 

(d)                                  reference to any agreement, document or instrument means such agreement, document or instrument as amended, modified, supplemented or restated, and in effect from time to time in accordance with the terms thereof subject to compliance with the requirements set forth herein or in the relevant Ancillary Agreement;

 

(e)                                   reference to any Applicable Law means such Applicable Law as amended, modified, codified, replaced or reenacted, in whole or in part, and in effect from time to time, including rules and regulations promulgated thereunder, and reference to any section or other provision of any Applicable Law means that provision of such Applicable Law from time to time in effect and constituting the substantive amendment, modification, codification, replacement or reenactment of such section or other provision;

 

(f)                                    “herein,” “hereby,” “hereunder,” “hereof,” “hereto” and words of similar import shall be deemed references to this Agreement or to the relevant Ancillary Agreement as a whole and not to any particular article, section or other provision hereof or thereof;

 

(g)                                   “including” (and with correlative meaning “include”) means including, without limiting the generality of, any description preceding such term;

 

(h)                                  the Table of Contents and headings are for convenience of reference only and shall not affect the construction or interpretation hereof or thereof;

 

(i)                                      with respect to the determination of any period of time, “from” means “from and including” and “to” means “to but excluding;”

 

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(j)                                     references to documents, instruments or agreements shall be deemed to refer as well to all addenda, exhibits, schedules or amendments thereto; and

 

(k)                                  references to the “other,” “other party” or the “other Group” refer to Match, IAC, the Match Group or certain members thereof or the IAC Group or certain members thereof, as the context requires.

 

Section 10.05                       Signatures .  Each of Match and IAC acknowledges that it and the other Party (and the other members of their respective Groups) may execute certain of the Ancillary Agreements by facsimile, stamp or mechanical signature.  Each of Match and IAC expressly adopts and confirms each such facsimile, stamp or mechanical signature made in its respective name (or that of the applicable member of its Group) as if it were a manual signature, agrees that it will not assert that any such signature is not adequate to bind such Party to the same extent as if it were signed manually and agrees that at the reasonable request of the other Party at any time it will as promptly as reasonably practicable cause each such Ancillary Agreement to be manually executed (any such execution to be as of the date of the initial date thereof).

 

Section 10.06                       Assignability .  Except as set forth in any Ancillary Agreement, this Agreement and each Ancillary Agreement shall be binding upon and inure to the benefit of the Parties hereto and thereto, respectively, and their respective successors and assigns; provided , however , that except as specifically provided in any Ancillary Agreement, no Party hereto or thereto may assign its respective rights or delegate its respective obligations under this Agreement or any Ancillary Agreement without the express prior written consent of the other parties hereto or thereto.

 

Section 10.07                       Third Party Beneficiaries .  Except for (i) the indemnification rights under this Agreement of any Match Indemnified Party or any IAC Indemnified Party in their respective capacities as such and (ii) the release under Section 5.01 of any Person provided therein and (iii) as specifically provided in any Ancillary Agreement:

 

(a)                                  the provisions of this Agreement and each Ancillary Agreement are solely for the benefit of the parties hereto and thereto and their respective successors and permitted assigns and are not intended to confer upon any Person, except the parties hereto and thereto and their respective successors and permitted assigns, any rights or remedies hereunder; and

 

(b)                                  there are no third party beneficiaries of this Agreement or any Ancillary Agreement; and neither this Agreement nor any Ancillary Agreement shall provide any Third Party with any remedy, claim, liability, reimbursement, claim of action or other right in excess of those existing without reference to this Agreement or any Ancillary Agreement.

 

Section 10.08                       Payment Terms .

 

(a)                                  Except as expressly provided to the contrary in this Agreement or in any Ancillary Agreement, any amount to be paid or reimbursed by one Party to the other under this Agreement shall be paid or reimbursed hereunder within thirty (30) days after presentation of an invoice or a written demand therefor and setting forth, or accompanied by, reasonable documentation or other reasonable explanation supporting such amount.

 

(b)                                  Except as expressly provided to the contrary in this Agreement or in any Ancillary Agreement, any amount not paid when due pursuant to this Agreement (and any amount billed or otherwise invoiced or demanded and properly payable that is not paid within thirty (30) days of such bill, invoice or other demand) shall bear interest at a rate per annum equal to the Prime Rate plus 2% (or

 

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the maximum legal rate, whichever is lower), calculated for the actual number of days elapsed, accrued from the date on which such payment was due up to the date of the actual receipt of payment.

 

Section 10.09                       Governing Law .  Except as set forth in Article 7 , this Agreement and each Ancillary Agreement, shall be governed by and construed and interpreted in accordance with the internal laws of the State of Delaware, irrespective of the choice of laws principles of the State of Delaware, as to all matters, including matters of validity, construction, effect, enforceability, performance and remedies.

 

Section 10.10                       Notices .  All notices or other communications under this Agreement and, unless expressly provided therein, each Ancillary Agreement, shall be in writing and shall be deemed to be duly given when delivered in person or successfully transmitted by electronic mail or facsimile,  addressed as follows:

 

if to IAC:

 

IAC/InterActiveCorp

555 West 18th Street

New York, NY 10011

Attention:  General Counsel
Fax:  (212) 632-9551

 

if to Match:

 

Match Group, Inc.
8300 Douglas Avenue

Suite 800

Dallas, TX 75225

Attention:  Chief Financial Officer

Fax: (917) 793-4497

 

Section 10.11                       Severability .  If any provision of this Agreement or any Ancillary Agreement or the application thereof to any Person or circumstance is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions hereof or thereof, or the application of such provision to Persons or circumstances or in jurisdictions other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby, so long as the economic or legal substance of the transactions contemplated hereby or thereby, as the case may be, is not affected in any manner adverse to either party hereto or any party thereto.  Upon such determination, the relevant Parties shall negotiate in good faith in an effort to agree upon such a suitable and equitable provision to effect the original intent of the Parties.

 

Section 10.12                       Publicity .  Prior to the Effective Time, IAC shall be responsible for issuing any press releases or otherwise making public statements with respect to this Agreement, the Transaction, the IPO, or any of the other transactions contemplated hereby and thereby, and Match shall not make such statements without the prior written consent of IAC.  Prior to the Effective Time, Match and IAC shall each consult with the other prior to making any filings with any Governmental Authority with respect thereto.

 

Section 10.13                       Survival of Covenants .  Except as expressly set forth in this Agreement or any Ancillary Agreement, any covenants, representations or warranties contained in this Agreement

 

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and each Ancillary Agreement shall survive the Transaction and the IPO and shall remain in full force and effect.

 

Section 10.14                       Waivers of Default; Conflicts .

 

(a)                                  Waiver by either Match or IAC of any default by the other Party of any provision of this Agreement or any Ancillary Agreement shall not be deemed a waiver by the waiving Party of any subsequent or other default, nor shall it prejudice the rights of the other Party.  No failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

 

(b)                                  Each of Match and IAC acknowledges that each of the Parties and each member of their respective Group are all currently represented by members of IAC’s legal department and IAC’s outside counsel.  IAC (on behalf of itself and every member of its Group), on the one hand, and Match (on behalf of itself and every member of its Group), on the other hand, waives any conflict with respect to such common representation that may arise before, at or after the Effective Time.

 

Section 10.15                       Amendments .  After the Effective Time, no provisions of this Agreement or any Ancillary Agreement shall be deemed waived, amended, supplemented or modified by any Party, unless such waiver, amendment, supplement or modification is in writing and signed by the authorized representative of the Party against whom it is sought to enforce such waiver, amendment, supplement or modification.

 

[Remainder of page intentionally left blank]

 

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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives.

 

 

 

IAC/INTERACTIVECORP

 

 

 

 

By:

/s/ Gregg Winiarski

 

 

Name: Gregg Winiarski

 

 

Title: Executive Vice President, General Counsel

 

 

 

MATCH GROUP, INC.

 

 

 

 

 

 

By:

/s/ Joanne Hawkins

 

 

Name: Joanne Hawkins

 

 

Title: Vice President and Assistant Secretary

 

[Signature Page to Master Transaction Agreement]

 



 

Annex A
Form of Match Group, Inc. Amended and Restated Certificate of Incorporation

 



 

Annex B
Form of Match Group, Inc. Amended and Restated By Laws

 


 

Exhibit 10.2

 

EMPLOYEE MATTERS AGREEMENT

 

by and between

 

IAC/INTERACTIVECORP

 

and

 

MATCH GROUP, INC.

 

Dated as of

 

November 24, 2015

 



 

TABLE OF CONTENTS

 

 

 

Page

 

 

 

ARTICLE I

DEFINITIONS

1

 

 

 

ARTICLE II

GENERAL PRINCIPLES

5

2.1

Employment of Match Employees

5

2.2

Assumption and Retention of Liabilities; Related Assets

5

2.3

Match Participation in IAC Benefit Plans

5

2.4

Commercially Reasonable Efforts

6

2.5

Regulatory Compliance

6

2.6

Approval by IAC as Sole Stockholder

6

 

 

 

ARTICLE III

DEFINED CONTRIBUTION PLANS; DEFINED BENEFIT PLANS

6

3.1

401(k) Plan Matters

6

 

 

 

ARTICLE IV

HEALTH AND WELFARE PLANS

7

4.1

H&W Continuation Period

7

4.2

Establishment of Health and Welfare Plans

8

4.3

Retention of Sponsorship and Liabilities

8

4.4

Flexible Benefit Plan

9

4.5

Workers’ Compensation Liabilities

9

4.6

Payroll Taxes and Reporting of Compensation

9

 

 

 

ARTICLE V

EXECUTIVE BENEFITS AND OTHER BENEFITS

10

5.1

Assumption of Obligations

10

5.2

IAC Incentive Plans

10

5.3

Employment Agreements

10

5.4

Severance

10

5.5

Certain Equity Award Matters

10

 

 

 

ARTICLE VI

GENERAL AND ADMINISTRATIVE

11

6.1

Sharing of Participant Information

11

6.2

Reasonable Efforts/Cooperation

11

6.3

No Third-Party Beneficiaries

12

6.4

Audit Rights With Respect to Information Provided

12

6.5

Fiduciary Matters

13

6.6

Consent of Third Parties

13

 

 

 

ARTICLE VII

MISCELLANEOUS

13

7.1

Effect If Effective Time Does Not Occur

13

7.2

Relationship of Parties

13

7.3

Affiliates

13

7.4

Notices

13

7.5

Incorporation of Master Transaction Agreement Provisions

14

 

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EMPLOYEE MATTERS AGREEMENT

 

This Employee Matters Agreement (this “ Agreement ”), dated as of November 24, 2015, with effect as of the Effective Time, is entered into by and between IAC/InterActiveCorp, a Delaware corporation (“ IAC ”), and Match Group, Inc., a Delaware corporation (“ Match ,” and together with IAC, the “ Parties ”).

 

RECITALS :

 

WHEREAS, IAC and Match have entered into a Master Transaction Agreement pursuant to which the Parties have set out the terms on which, and the conditions subject to which, they wish to implement the Separation (as defined in the Master Transaction Agreement) (such agreement, as amended, restated or modified from time to time, the “ Master Transaction Agreement ”).

 

WHEREAS, in connection therewith, IAC and Match have agreed to enter into this Agreement to allocate between them assets, liabilities and responsibilities with respect to certain employee compensation, pension and benefit plans, programs and arrangements and certain employment matters.

 

NOW THEREFORE, in consideration of the mutual agreements, covenants and other provisions set forth in this Agreement, the Parties hereby agree as follows:

 

ARTICLE I
DEFINITIONS

 

Unless otherwise defined in this Agreement, capitalized words and expressions and variations thereof used in this Agreement have the meanings set forth below. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Master Transaction Agreement.

 

1.1                                Affiliate ” has the meaning given that term in the Master Transaction Agreement.

 

1.2                                Agreement ” means this Employee Matters Agreement, including all the Schedules hereto.

 

1.3                                Ancillary Agreements ” has the meaning given that term in the Master Transaction Agreement.

 

1.4                                Approved Leave of Absence ” means an absence from active service pursuant to an approved leave policy with a guaranteed right of reinstatement.

 

1.5                                Auditing Party ” has the meaning set forth in Section 6.4(a).

 

1.6                                Benefit Plan ” means, with respect to an entity or any of its Subsidiaries, (a) each “employee welfare benefit plan” (as defined in Section 3(1) of ERISA) and all other employee benefits arrangements, policies or payroll practices (including, without limitation, severance pay,

 



 

sick leave, vacation pay, salary continuation, disability, retirement, deferred compensation, bonus, stock option or other equity-based compensation, hospitalization, medical insurance or life insurance) sponsored or maintained by such entity or by any of its Subsidiaries (or to which such entity or any of its Subsidiaries contributes or is required to contribute) and (b) all “employee pension benefit plans” (as defined in Section 3(2) of ERISA), occupational pension plan or arrangement or other pension arrangements sponsored, maintained or contributed to by such entity or any of its Subsidiaries (or to which such entity or any of its Subsidiaries contributes or is required to contribute). For the avoidance of doubt, “Benefit Plans” includes Health and Welfare Plans and Executive Benefit Plans. When immediately preceded by “IAC,” Benefit Plan means any Benefit Plan sponsored, maintained or contributed to by IAC or an IAC Entity or any Benefit Plan with respect to which IAC or an IAC Entity is a party. When immediately preceded by “Match,” Benefit Plan means any Benefit Plan sponsored, maintained or contributed to by Match or any Match Entity or any Benefit Plan with respect to which Match or a Match Entity is a party.

 

1.7                                COBRA ” means the continuation coverage requirements for “group health plans” under Title X of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and as codified in Code § 4980B and ERISA §§ 601 through 608.

 

1.8                                Code ” means the Internal Revenue Code of 1986, as amended, or any successor federal income tax law. Reference to a specific Code provision also includes any proposed, temporary or final regulation in force under that provision.

 

1.9                                Effective Time ” has the meaning given that term in the Master Transaction Agreement.

 

1.10                         ERISA ” means the Employee Retirement Income Security Act of 1974, as amended. Reference to a specific provision of ERISA also includes any proposed, temporary or final regulation in force under that provision.

 

1.11                         Former IAC Employee ” means (a) any individual who as of the Effective Time is a former employee of the IAC Group or the Match Group, and whose last employment with the IAC Group or Match Group was with an IAC Entity, or (b) any individual who is an IAC Employee as of the Effective Time or thereafter who ceases to be an employee of the IAC Group following the Effective Time.

 

1.12                         Former Match Employee ” means (a) any individual who as of the Effective Time is a former employee of the IAC Group or the Match Group, and whose last employment with the IAC Group or Match Group was with a Match Entity, or (b) any individual who is a Match Employee as of the Effective Time or thereafter who ceases to be an employee of the Match Group following the Effective Time.

 

1.13                         Health and Welfare Plans ” means any plan, fund or program which was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, medical (including PPO, EPO and HDHP coverages), dental, prescription, vision, short-term disability, long-term disability, life and AD&D, employee assistance, group legal services, wellness, cafeteria (including premium

 

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payment, health flexible spending account and dependent care flexible spending account components), travel reimbursement, transportation, or other benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs or day care centers, scholarship funds, or prepaid legal services, including any such plan, fund or program as defined in Section 3(1) of ERISA.

 

1.14                         HIPAA ” means the health insurance portability and accountability requirements for “group health plans” under the Health Insurance Portability and Accountability Act of 1996, as amended.

 

1.15                         IAC 401(k) Plan ” means the InterActiveCorp Retirement Savings Plan as in effect as of the time relevant to the applicable provision of this Agreement.

 

1.16                         IAC Common Stock ” means shares of common stock, $0.001 par value per share, of IAC.

 

1.17                         IAC Employee ” means (a) any individual who, immediately prior to the Effective Time, is either actively employed by, or then on Approved Leave of Absence from, any IAC Entity, and (b) any individual who becomes an employee of any IAC Entity after the Effective Time.

 

1.18                         IAC Entities ” means the members of the IAC Group, as defined in the Master Transaction Agreement.

 

1.19                         IAC Executive Benefit Plans ” means the executive benefit and nonqualified plans, programs, agreements, and arrangements established, sponsored, maintained, or agreed upon, by any IAC Entity for the benefit of employees and former employees of any IAC Entity.

 

1.20                         IAC Flexible Benefit Plan ” means the flexible benefit plan maintained by IAC as in effect as of the time relevant to the applicable provision of this Agreement.

 

1.21                         IAC Incentive Plans ” means any of the annual or short term incentive plans of IAC, all as in effect as of the time relevant to the applicable provisions of this Agreement.

 

1.22                         IAC Long-Term Incentive Plans ” means any of the IAC/InterActiveCorp 2013 Stock and Annual Incentive Plan, or the IAC/InterActiveCorp 2008 Stock and Annual Incentive Plan, each as in effect as of the time relevant to the applicable provisions of this Agreement.

 

1.23                         IAC ” has the meaning set forth in the preamble to this Agreement.

 

1.24                         Liability ” has the meaning given that term in the Master Transaction Agreement.

 

1.25                         Master Transaction Agreement ” has the meaning set forth in the recitals to this Agreement.

 

1.26                         Match 401(k) Plan Trust ” means a trust relating to the Match 401(k) Plan intended to qualify under Section 401(a) and be exempt under Section 501(a) of the Code.

 

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1.27                         Match 401(k) Plan ” means a 401(k) plan established by Match.

 

1.28                         Match Capital Stock ” has the meaning set forth in the Master Transaction Agreement.

 

1.29                         Match Common Stock ” means shares of common stock, $0.001 par value per share, of Match.

 

1.30                         Match Employee ” means (a) any individual who, immediately prior to the Effective Time, is either actively employed by, or then on Approved Leave of Absence from, a Match Entity, and (b) any individual who becomes an employee of any Match Entity after the Effective Time.

 

1.31                         Match Entities ” means the members of the Match Group as defined in the Master Transaction Agreement.

 

1.32                         Match Executive Benefit Plans ” means the executive benefit and nonqualified plans, programs, and arrangements established, sponsored, maintained, or agreed upon, by any Match Entity for the benefit of employees and former employees of any Match Entity.

 

1.33                         Match Long-Term Incentive Plan ” means the Match Group, Inc. 2015 Stock and Annual Incentive Plan.

 

1.34                         Match ” has the meaning set forth in the preamble to this Agreement.

 

1.35                         Medical Plan ” when immediately preceded by “IAC,” means the Benefit Plan under which medical benefits are provided to IAC Employees established and maintained by IAC. When immediately preceded by “Match,” Medical Plan means the Benefit Plan under which medical benefits are provided to Match Employees to be established by Match pursuant to Article IV.

 

1.36                         Non-parties ” has the meaning set forth in Section 6.4(b).

 

1.37                         Option ” when immediately preceded by “IAC” means an option (either nonqualified or incentive) to purchase shares of IAC Common Stock pursuant to the IAC Long-Term Incentive Plan. When immediately preceded by “Match,” Option means an option (either nonqualified or incentive) to purchase shares of Match Common Stock following the Effective Time pursuant to the Match Long-Term Incentive Plan.

 

1.38                         Participating Company ” means (a) IAC and (b) any other Person (other than an individual) that participates in a plan sponsored by any IAC Entity.

 

1.39                         Parties ” has the meaning set forth in the preamble to this Agreement.

 

1.40                         Person ” has the meaning given that term in the Master Transaction Agreement.

 

1.41                         RSU ” (a) when immediately preceded by “IAC,” means units issued under an IAC Benefit Plan representing a general unsecured promise by IAC to pay the value of shares of

 

4



 

IAC Common Stock in cash or shares of IAC Common Stock and, (b) when immediately preceded by “Match,” means units issued under a Match Benefit Plan representing a general unsecured promise by Match to pay the value of shares of Match Common Stock in cash or shares of Match Common Stock.

 

1.42                         Separation ” has the meaning given that term in the Master Transaction Agreement.

 

1.43                         Subsidiary ” has the meaning given that term in the Master Transaction Agreement.

 

1.44                         U.S. ” means the 50 United States of America and the District of Columbia.

 

ARTICLE II
GENERAL PRINCIPLES

 

2.1                                Employment of Match Employees . All Match Employees shall continue to be employees of Match or another Match Entity, as the case may be, immediately after the Effective Time.

 

2.3                                Assumption and Retention of Liabilities; Related Assets .

 

(a)                                  As of the Effective Time, except as expressly provided in this Agreement, the IAC Entities shall assume or retain and IAC hereby agrees to pay, perform, fulfill and discharge, in due course in full (i) all Liabilities under all IAC Benefit Plans with respect to all IAC Employees, Former IAC Employees and their dependents and beneficiaries, (ii) all Liabilities with respect to the employment or termination of employment of all IAC Employees and Former IAC Employees, in each case to the extent arising in connection with or as a result of employment with or the performance of services to any IAC Entity, and (iii) any other Liabilities expressly assigned to IAC under this Agreement. All assets held in trust to fund the IAC Benefit Plans and all insurance policies funding the IAC Benefit Plans shall be IAC Assets (as defined in the Master Transaction Agreement), except to the extent specifically provided otherwise in this Agreement.

 

(b)                                  From and after the Effective Time, except as expressly provided in this Agreement, Match and the Match Entities shall assume or retain, as applicable, and Match hereby agrees to pay, perform, fulfill and discharge, in due course in full, (i) all Liabilities under all Match Benefit Plans, (ii) all Liabilities with respect to the employment or termination of employment of all Match Employees and Former Match Employees, in each case to the extent arising in connection with or as a result of employment with or the performance of services to any Match Entity, and (iii) any other Liabilities expressly assigned to Match or any Match Entity under this Agreement.

 

2.4                                Match Participation in IAC Benefit Plans . Except as expressly provided in this Agreement, effective as of the Effective Time, Match and each other Match Entity shall cease to be a Participating Company in any IAC Benefit Plan, and IAC and Match shall take all necessary action to effectuate such cessation as a Participating Company.

 

5



 

2.5                                Commercially Reasonable Efforts . IAC and Match shall use commercially reasonable efforts to (a) enter into any necessary agreements to accomplish the assumptions and transfers contemplated by this Agreement; and (b) provide for the maintenance of the necessary participant records, the appointment of the trustees and the engagement of recordkeepers, investment managers, providers, insurers, and other third parties reasonably necessary to maintaining and administering the IAC Benefit Plans and the Match Benefit Plans.

 

2.6                                Regulatory Compliance . IAC and Match shall, in connection with the actions taken pursuant to this Agreement, reasonably cooperate in making any and all appropriate filings required under the Code, ERISA and any applicable securities laws, implementing all appropriate communications with participants, transferring appropriate records and taking all such other actions as the requesting party may reasonably determine to be necessary or appropriate to implement the provisions of this Agreement in a timely manner.

 

2.7                                Approval by IAC as Sole Stockholder . Prior to the Effective Time, IAC shall cause Match to adopt the Match Long-Term Incentive Plan.

 

ARTICLE III
DEFINED CONTRIBUTION PLANS; DEFINED BENEFIT PLANS

 

3.1                                401(k) Plan Matters .

 

(a)                                  From the Effective Time and continuing until such time as IAC ceases to own at least 80% of the combined voting power of the outstanding Match Capital Stock (such date, the “ Plan Milestone Date ”), Match adopts, and shall participate in as an Adopting Employer (as defined in the IAC 401(k) Plan), the IAC 401(k) Plan for the benefit of Match Employees and Former Match Employees, and IAC consents to such adoption and maintenance, in accordance with the terms of the IAC 401(k) Plan. Each of the Parties agrees and acknowledges that until the Plan Milestone Date, Match shall make timely direct contributions (including matching contributions) to the IAC 401(k) Plan on behalf of such Match participating employees in accordance with the terms of the IAC 401(k) Plan and in accordance with (and no less promptly than) the timing of contributions made by IAC prior to the Effective Time.  Each of the Parties agrees that, within six months following a spin-off of Match from IAC, the trustee of the IAC 401(k) Plan shall sell all shares of Match Common Stock held in the accounts of IAC Employees and Former IAC Employees.  On and after the spin-off date and until the completion of the sales contemplated by the immediately preceding sentence, shares of Match Common Stock shall be held in a Match Common Stock Fund under the IAC 401(k) Plan.  Following the spin-off date, IAC Employees and Former IAC Employees shall not be permitted to acquire shares of Match Common Stock under the IAC 401(k) Plan.

 

(b)                                  Effective as of the Plan Milestone Date, Match shall establish the Match 401(k) Plan and the Match 401(k) Plan Trust. As soon as practical following the establishment of the Match 401(k) Plan and the Match 401(k) Plan Trust, IAC shall cause the accounts of the Match Employees and Former Match Employees in the IAC 401(k) Plan to be transferred to the Match 401(k) Plan and the Match 401(k) Plan Trust in cash or such other assets as mutually agreed by IAC and Match, and Match shall cause the Match 401(k) Plan to assume and be solely responsible for all Liabilities under the Match 401(k) Plan to or relating to Match Employees and

 

6



 

Former Match Employees whose accounts are transferred from the IAC 401(k) Plan. IAC and Match agree to cooperate in making all appropriate filings and taking all reasonable actions required to implement the provisions of this Section 3.1; provided that Match acknowledges that it will be responsible for complying with any requirements and applying for any determination letters with respect to the Match 401(k) Plan.  Each of the Parties agrees that, within six months following the Milestone Date, the trustee of the Match 401(k) Plan shall sell all shares of IAC Common Stock held in the accounts of Match Employees and Former Match Employees.  On and after the Milestone Date and until the completion of the sales contemplated by the immediately preceding sentence, shares of IAC Common Stock shall be held in an IAC Common Stock Fund under the Match 401(k) Plan.  Following the Milestone Date, Match Employees and Former Match Employees shall not be permitted to acquire shares of IAC Common Stock under the Match 401(k) Plan.

 

(c)                                   IAC and Match shall assume sole responsibility for ensuring that their respective savings plans are maintained in compliance with applicable laws with respect to holding shares of their respective common stock and common stock of the other entity.

 

ARTICLE IV
HEALTH AND WELFARE PLANS

 

4.1                                H&W Continuation Period .

 

(a)                                  IAC will cause the IAC Health and Welfare Plans in effect at the Effective Time to provide coverage to Match Employees and Former Match Employees (and, in each case, their beneficiaries and dependents) from and after the Effective Time until the Plan Milestone Date (such period, the “ H&W Continuation Period ”) on the same basis as immediately prior to the Effective Time and in accordance with the terms of IAC’s Health and Welfare Plans. Following the Effective Time, Match shall pay to IAC fees in respect of IAC covering such Match Employees and Former Match Employees under the IAC Health and Welfare Plans, such fees to be based on the per-employee budgeted rates set forth on Schedule A to this Agreement (as such schedule may be updated by IAC in its sole discretion each calendar year to reflect the updated rates applicable to IAC employees generally). The fees contemplated by this Section 4.1(a) shall be payable in advance each month ( i.e. , not later than the first day of any month during which coverage applies) during the H&W Continuation Period and shall be based on the prior month’s enrollment, with appropriate, subsequent adjustments in each succeeding month to reflect actual enrollment; provided , however , that the fees relating to the period from and including the first day of the month during which the Effective Time occurs through the end of the month during which the Effective Time occurs shall be payable no later than the fifth business day following the Effective Time. In the event that Match fails to pay in a timely manner the fees contemplated by this Section 4.1(a), IAC shall have no obligation to provide the coverage contemplated by this Section 4.1(a) to the Match Employees and Former Match Employees.

 

(b)                                  Following each calendar year during the H&W Continuation Period, but not later than one hundred fifty days thereafter, IAC shall calculate in good faith the total costs and expenses of the IAC Health and Welfare Plans for such calendar year (including without limitation claims paid and costs and expenses associated with the administration of the IAC

 

7



 

Health and Welfare Plans (as determined by IAC in its good faith discretion) and IAC’s good faith estimate of claims incurred in such calendar year but not reported (such estimate to be prepared based on historical claims reporting patterns and history)) (the “ Annual H&W Expenses ”), and IAC promptly shall provide to Match the Annual H&W Expenses following such calculation. To the extent Annual H&W Expenses (i) exceed the aggregate fees paid by IAC and Match in respect of coverage during the applicable calendar year of IAC Employees and Former IAC Employees and Match Employees and Former Match Employees (the “ Annual H&W Fees ”), Match shall be required to pay to IAC by wire transfer its ratable portion (calculated on the basis of the number of Match Employees relative to the total number of IAC Employees and Match Employees taken together) of the fees deficit, and (ii) is less than the Annual H&W Fees, IAC shall pay to Match its ratable portion (calculated on the basis of the number of Match Employees relative to the total number of IAC Employees and Match Employees taken together) of the excess fees collected, any such payments pursuant to clause (i) or clause (ii) to be made no later than July 15 following the applicable calendar year. Any calculations made by IAC pursuant to this Section 4.1(b) shall be final and binding upon Match and the calculations contemplated by this Section 4.1(b) shall be adjusted to take into account any calendar year in which participation by Match Employees and Former Match Employees in the IAC Health and Welfare Plans is for less than the full calendar year.

 

4.2                                Establishment of Health and Welfare Plans .

 

(a)                                  Effective as of the Plan Milestone Date, Match shall adopt Health and Welfare Plans for the benefit of Match Employees and Former Match Employees, and Match shall be responsible for all Liabilities relating to, arising out of or resulting from health and welfare coverage or claims incurred by or on behalf of Match Employees and Former Match Employees or their covered dependents under the Match Health and Welfare Plans on or after the Plan Milestone Date.

 

(b)                                  Notwithstanding anything to the contrary in this Section 4.2, with respect to any Match Employee who becomes disabled under the terms of the IAC Health and Welfare Plans and becomes entitled to receive long-term or short-term disability benefits prior to the Plan Milestone Date, such Match Employee shall continue to receive long-term or short-term disability benefits under the IAC Health and Welfare Plans on and after the Plan Milestone Date in accordance with the terms of the IAC Health and Welfare Plans.

 

4.3                                Retention of Sponsorship and Liabilities . Following the Effective Time, IAC shall retain:

 

(a)                                  sponsorship of all IAC Health and Welfare Plans and any trust or other funding arrangement established or maintained with respect to such plans, including any assets held as of the Effective Time with respect to such plans; and

 

(b)                                  all Liabilities under the IAC Health and Welfare Plans, subject to the obligations of Match described in Section 4.1.

 

IAC shall not assume any Liability under any Match Health and Welfare Plan, and all such claims shall be satisfied pursuant to Section 4.2(a).

 

8



 

4.4                                Flexible Benefit Plan . IAC will continue to maintain on behalf of Match Employees the health care reimbursement program, the transit and parking reimbursement program and the dependent care reimbursement program of the IAC Flexible Benefit Plan (all of such accounts, “ IAC Flexible Benefit Plan ”) for claims incurred prior to the Plan Milestone Date on the same basis as immediately prior to the Effective Time and in accordance with the terms of the IAC Flexible Benefit Plan. Following the Effective Time, until such time as Match ceases to participate in the IAC Flexible Benefit Plan and has satisfied all of its obligations thereunder, Match shall pay to IAC the amounts claimed by Match Employees under the IAC Flexible Benefit Plan in addition to Match’s share of the administrative cost of the IAC Flexible Benefit Plan (based on IAC historical allocations), such amounts to be paid by Match on a one-month lagging basis ( i.e. , claims made and administrative costs incurred during a particular month shall be billed in the immediately succeeding month); provided , that Match shall remit payment to IAC no later than the fifth business day following delivery by IAC of an invoice to Match. Match Employees shall not participate in the IAC Flexible Benefit Plan on or after the Plan Milestone Date.

 

4.5                                Workers’ Compensation Liabilities . All workers’ compensation Liabilities relating to, arising out of, or resulting from any claim by an IAC Employee, Former IAC Employee, Match Employee and Former Match Employee that results from an accident occurring, or from an occupational disease which becomes manifest, on or before the Effective Time shall be retained by IAC; provided , however , that Match promptly shall reimburse IAC for any such Liabilities relating to Match Employees or Former Match Employees borne by IAC following the Effective Time. All workers’ compensation Liabilities relating to, arising out of, or resulting from any claim by an IAC Employee or Former IAC Employee that results from an accident occurring, or from an occupational disease which becomes manifest, on or after the Effective Time shall be retained by IAC. All workers’ compensation Liabilities relating to, arising out of, or resulting from any claim by a Match Employee or Former Match Employee that results from an accident occurring, or from an occupational disease which becomes manifest, on or after the Effective Time shall be retained by Match. For purposes of this Agreement, a compensable injury shall be deemed to be sustained upon the occurrence of the event giving rise to eligibility for workers’ compensation benefits or at the time that an occupational disease becomes manifest, as the case may be. IAC, Match and the other Match Entities shall cooperate with respect to any notification to appropriate governmental agencies of the effective time and the issuance of new, or the transfer of existing, workers’ compensation insurance policies and claims handling contracts.

 

4.6                                Payroll Taxes and Reporting of Compensation . IAC and Match shall, and shall cause the other IAC Entities and the other Match Entities to, respectively, take such action as may be reasonably necessary or appropriate in order to minimize Liabilities related to payroll taxes after the Effective Time. IAC and Match shall, and shall cause the other IAC Entities and the other Match Entities to, respectively, each bear its responsibility for payroll tax obligations and for the proper reporting to the appropriate governmental authorities of compensation earned by their respective employees after the Effective Time, including compensation related to the exercise of Options.

 

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ARTICLE V
EXECUTIVE BENEFITS AND OTHER BENEFITS

 

5.1                                Assumption of Obligations . Except as provided in this Agreement, effective as of the Effective Time, Match shall assume and be solely responsible for all Liabilities to or relating to Match Employees and Former Match Employees under all IAC Executive Benefit Plans and Match Executive Benefit Plans. The Parties hereto agree that none of the transactions contemplated by the Master Transaction Agreement or any of the Ancillary Agreements, including, without limitation, this Agreement, constitutes a “change in control,” “change of control” or similar term, as applicable, within the meaning of any Benefit Plan, the IAC Long-Term Incentive Plan or the Match Long-Term Incentive Plan.

 

5.2                                IAC Incentive Plans .

 

(a)                                  Match Bonus Awards . Match shall be responsible for determining all bonus awards that would otherwise be payable under the IAC Incentive Plans to Match Employees for the fiscal year in which the Effective Time occurs. Match also shall determine for Match Employees (i) the extent to which established performance criteria (as interpreted by Match, in its sole discretion) have been met, and (ii) the payment level for each Match Employee. Match shall assume all Liabilities with respect to any such bonus awards payable to Match Employees for the fiscal year in which the Effective Time occurs and thereafter.

 

(b)                                  IAC Bonus Awards . IAC shall retain all Liabilities with respect to any bonus awards payable under the IAC Incentive Plans to IAC Employees for the year in which the Effective Time occurs and thereafter.

 

5.3                                Employment Agreements . Any employment agreement between IAC and a Match Employee or Former Match Employee shall as of the Effective Time be assigned by IAC to Match and assumed by Match.

 

5.4                                Severance . A Match Employee shall not be deemed to have terminated employment for purposes of determining eligibility for severance benefits in connection with or in anticipation of the consummation of the transactions contemplated by the Master Transaction Agreement. Match shall be solely responsible for all Liabilities in respect of all costs arising out of payments and benefits relating to the termination or alleged termination of any Match Employee or Former Match Employee’s employment that occurs prior to, as a result of, in connection with or following the consummation of the transactions contemplated by the Master Transaction Agreement, including any amounts required to be paid (including any payroll or other taxes), and the costs of providing benefits, under any applicable severance, separation, redundancy, termination or similar plan, program, practice, contract, agreement, law or regulation (such benefits to include any medical or other welfare benefits, outplacement benefits, accrued vacation, and taxes).

 

5.5                                Certain Equity Award Matters .

 

(a)                                  Match shall reimburse IAC for the cost of any IAC RSUs or IAC Options held by Match Employees or Former Match Employees that vest (in the case of IAC RSUs) or are exercised (in the case of IAC Options) on or after the Effective Time with such cost equal to

 

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the taxable income that arises from the applicable vesting or exercise event (the “ IAC Award Cost ”).  No later than five Business Days following invoice therefor, Match shall pay to IAC the IAC Award Cost in, at IAC’s election, either cash or in shares of Match Common Stock having a value equal to the IAC Award Cost, based on the closing price of Match Common Stock on the applicable vesting or exercise date; provided , however , that following such time as IAC ceases to own shares representing a majority of the combined voting power of the outstanding Match Capital Stock, Match shall make such payment in cash. Match shall be entitled to any compensation deduction corresponding to the IAC Award Cost.

 

(b)                                  With respect to any equity awards of Tinder, OkCupid or The Princeton Review (the “ Subsidiary Equity Awards ”) that are granted pursuant to plans outstanding as of the Effective Time and that are settled prior to such time as IAC ceases to own shares representing a majority of the combined voting power of the outstanding Match Capital Stock, IAC may require those awards to be settled in either shares of IAC Common Stock or in shares of Match Common Stock. To the extent that IAC elects to settle the Subsidiary Equity Awards in shares of IAC Common Stock, Match will reimburse IAC in an amount equal to the taxable income that arises from the settlement of the Subsidiary Equity Awards (the “ Subsidiary Award Cost ”) by issuing to IAC additional shares of Match Common Stock having a value equal to the Subsidiary Award Cost, based on the closing price of Match Common Stock on the date of settlement. Match shall be entitled to any compensation deduction corresponding to the Subsidiary Award Cost.

 

(c)                                   The Compensation Committee of the IAC Board of Directors will have the exclusive authority to determine the treatment of outstanding IAC equity awards in the event of a subsequent spinoff of IAC’s retained interest in Match and Match agrees to assume any equity awards denominated in shares of IAC Common Stock that are converted into equity awards denominated in shares of Match Common Stock in connection with any such spinoff.

 

ARTICLE VI
GENERAL AND ADMINISTRATIVE

 

6.1                                Sharing of Participant Information . IAC and Match shall share, and IAC shall cause each other IAC Entity to share, and Match shall cause each other Match Entity to share with each other and their respective agents and vendors (without obtaining releases) all participant information necessary for the efficient and accurate administration of each of the Match Benefit Plans and the IAC Benefit Plans. IAC and Match and their respective authorized agents shall, subject to applicable laws, be given reasonable and timely access to, and may make copies of, all information relating to the subjects of this Agreement in the custody of the other Party, to the extent necessary for such administration. Until the Effective Time, all participant information shall be provided in the manner and medium applicable to Participating Companies in IAC Benefit Plans generally, and thereafter through the end of the H&W Continuation Period, all participant information shall be provided in a manner and medium as may be mutually agreed to by IAC and Match.

 

6.2                                Reasonable Efforts/Cooperation . Each of the Parties hereto will use its commercially reasonable efforts to promptly take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the transactions contemplated by this Agreement. Each of the Parties hereto shall

 

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cooperate fully on any issue relating to the transactions contemplated by this Agreement for which the other Party seeks a determination letter or private letter ruling from the Internal Revenue Service, an advisory opinion from the Department of Labor or any other filing (including, but not limited to, securities filings (remedial or otherwise)), consent or approval with respect to or by a governmental agency or authority in any jurisdiction in the U.S. or abroad.

 

6.3                                No Third-Party Beneficiaries . This Agreement is solely for the benefit of the Parties and is not intended to confer upon any other Persons any rights or remedies hereunder. Except as expressly provided in this Agreement, nothing in this Agreement shall preclude IAC or any other IAC Entity, at any time after the Effective Time, from amending, merging, modifying, terminating, eliminating, reducing, or otherwise altering in any respect any IAC Benefit Plan, any benefit under any Benefit Plan or any trust, insurance policy or funding vehicle related to any IAC Benefit Plan. Except as expressly provided in this Agreement, nothing in this Agreement shall preclude Match or any other Match Entity, at any time after the Effective Time, from amending, merging, modifying, terminating, eliminating, reducing, or otherwise altering in any respect any Match Benefit Plan, any benefit under any Benefit Plan or any trust, insurance policy or funding vehicle related to any Match Benefit Plan.

 

6.4                                Audit Rights With Respect to Information Provided .

 

(a)                                  Each of IAC and Match, and their duly authorized representatives, shall have the right to conduct reasonable audits with respect to all information required to be provided to it by the other Party under this Agreement. The Party conducting the audit (the “ Auditing Party ”) may adopt reasonable procedures and guidelines for conducting audits and the selection of audit representatives under this Section 6.4. The Auditing Party shall have the right to make copies of any records at its expense, subject to any restrictions imposed by applicable laws and to any confidentiality provisions set forth in the Master Transaction Agreement, which are incorporated by reference herein. The Party being audited shall provide the Auditing Party’s representatives with reasonable access during normal business hours to its operations, computer systems and paper and electronic files, and provide workspace to its representatives. After any audit is completed, the Party being audited shall have the right to review a draft of the audit findings and to comment on those findings in writing within thirty business days after receiving such draft.

 

(b)                                  The Auditing Party’s audit rights under this Section 6.4 shall include the right to audit, or participate in an audit facilitated by the Party being audited, of any Subsidiaries and Affiliates of the Party being audited and to require the other Party to request any benefit providers and third parties with whom the Party being audited has a relationship, or agents of such Party, to agree to such an audit to the extent any such Persons are affected by or addressed in this Agreement (collectively, the “ Non-parties ”). The Party being audited shall, upon written request from the Auditing Party, provide an individual (at the Auditing Party’s expense) to supervise any audit of a Non-party. The Auditing Party shall be responsible for supplying, at the Auditing Party’s expense, additional personnel sufficient to complete the audit in a reasonably timely manner. The responsibility of the Party being audited shall be limited to providing, at the Auditing Party’s expense, a single individual at each audited site for purposes of facilitating the audit.

 

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6.5                                Fiduciary Matters . It is acknowledged that actions required to be taken pursuant to this Agreement may be subject to fiduciary duties or standards of conduct under ERISA or other applicable law, and no Party shall be deemed to be in violation of this Agreement if it fails to comply with any provisions hereof based upon its good faith determination that to do so would violate such a fiduciary duty or standard. Each Party shall be responsible for taking such actions as are deemed necessary and appropriate to comply with its own fiduciary responsibilities and shall fully release and indemnify the other Party for any Liabilities caused by the failure to satisfy any such responsibility.

 

6.6                                Consent of Third Parties . If any provision of this Agreement is dependent on the consent of any third party (such as a vendor) and such consent is withheld, the Parties hereto shall use commercially reasonable efforts to implement the applicable provisions of this Agreement to the full extent practicable. If any provision of this Agreement cannot be implemented due to the failure of such third party to consent, the Parties hereto shall negotiate in good faith to implement the provision in a mutually satisfactory manner. The phrase “commercially reasonable efforts” as used herein shall not be construed to require any Party to incur any non-routine or unreasonable expense or Liability or to waive any right.

 

ARTICLE VII
MISCELLANEOUS

 

7.1                                Effect If Effective Time Does Not Occur . If the Master Transaction Agreement is terminated prior to the Effective Time, then this Agreement shall terminate and all actions and events that are, under this Agreement, to be taken or occur effective immediately prior to or as of the Effective Time, or otherwise in connection with the Separation, shall not be taken or occur except to the extent specifically agreed by IAC and Match.

 

7.2                                Relationship of Parties . Nothing in this Agreement shall be deemed or construed by the Parties or any third party as creating the relationship of principal and agent, partnership or joint venture between the Parties, it being understood and agreed that no provision contained herein, and no act of the Parties, shall be deemed to create any relationship between the Parties other than the relationship set forth herein.

 

7.3                                Affiliates . Each of IAC and Match shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth in this Agreement to be performed by another IAC Entity or a Match Entity, respectively.

 

7.4                                Notices . All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed given to a Party when (a) delivered to the appropriate address by hand or by nationally recognized overnight courier service (costs prepaid); (b) sent by facsimile with confirmation of transmission by the transmitting equipment; or (c) received or rejected by the addressee, if sent by certified mail, return receipt requested, in each case to the following addresses and facsimile numbers and marked to the attention of the person (by name or title) designated below (or to such other address, facsimile number or person as a Party may designate by notice to the other Parties):

 

(a)                                  if to IAC:

 

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IAC/InterActiveCorp

555 West 18th Street

New York, NY 10011

Attention:  General Counsel
Fax:  212-632-9551

 

with a copy to:

 

Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
Attention:  Andrew J. Nussbaum, Esq.
                                                    Ante Vucic, Esq.
Fax:  212-403-2000

 

(b)                                  if to Match:

 

Match Group, Inc.

8300 Douglas Avenue

Suite 800

Dallas, TX 75225

Attention:  Chief Financial Officer
Fax:  917-793-4497

 

with a copy (prior to the Effective Time) to:

 

Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
Attention:  Andrew J. Nussbaum, Esq.
                                                    Ante Vucic, Esq.
Fax:  212-403-2000

 

7.5                                Incorporation of Master Transaction Agreement Provisions . The following provisions of the Master Transaction Agreement are hereby incorporated herein by reference, and unless otherwise expressly specified herein, such provisions shall apply as if fully set forth herein mutatis mutandis (references in this Section 7.5 to an “Article” or “Section” shall mean Articles or Sections of the Master Transaction Agreement, and references in the material incorporated herein by reference shall be references to the Master Transaction Agreement):  Article 5 (relating to Mutual Releases; Indemnification; Insurance); Article 6 (relating to Exchange of Information; Confidentiality); Article 7 (relating to Dispute Resolution); Section 8.01 (relating to Further Assurances); Article 9 (relating to Sole Discretion of IAC; Termination); and Article 10 (relating to Miscellaneous).

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

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IN WITNESS WHEREOF, the Parties have caused this Employee Matters Agreement to be duly executed as of the day and year first above written.

 

 

IAC/INTERACTIVECORP

 

 

 

By:

/s/ Gregg Winiarski

 

 

Name:

Gregg Winiarski

 

 

Title:

Executive Vice President, General Counsel

 

 

 

 

 

 

 

 

 

MATCH GROUP, INC.

 

 

 

 

 

By:

/s/ Joanne Hawkins

 

 

Name:

Joanne Hawkins

 

 

Title:

Vice President and Assistant Secretary

 


Exhibit 10.3

 

TAX SHARING AGREEMENT

 

by and between

 

IAC/INTERACTIVECORP

 

and

 

MATCH GROUP, INC.

 

Dated as of

 

November 24, 2015

 



 

TAX SHARING AGREEMENT

 

This Tax Sharing Agreement (this “ Agreement ”), dated as of November 24, 2015, is entered into by and between IAC/InterActiveCorp, a Delaware corporation (“ Parent ”), and Match Group, Inc., a Delaware corporation and wholly owned subsidiary of Parent (“ Match ”).

 

W I T N E S S E T H

 

WHEREAS, as of the date hereof, Parent and its direct and indirect domestic subsidiaries are members of an affiliated group (as defined in Section 1504 of the Code) of which Parent is the common parent;

 

WHEREAS, Parent and Match intend to effect the initial public offering by Match of Match Common Stock (the “ IPO ”);

 

WHEREAS, in connection with the IPO, Parent and Match have entered into a Master Transaction Agreement, dated as of November 24, 2015 (the “ Transaction Agreement ”), providing for, among other things, (a) the transfer of the Match Businesses, the Match Assets and the Match Liabilities to Match and its Subsidiaries, and (b) the Remaining Business, the Remaining Assets and the Remaining Liabilities to be held by IAC and its Subsidiaries (other than Match and its Subsidiaries); and

 

WHEREAS, in connection with the IPO, the parties hereto have determined to enter into this Agreement, setting forth their agreement with respect to certain Tax matters;

 

NOW, THEREFORE, in consideration of the premises and the representations, covenants and agreements herein contained and intending to be legally bound hereby, Parent and Match hereby agree as follows:

 

1.                                       Definitions .  Capitalized terms used but not defined herein shall have the respective meanings assigned to them in the Transaction Agreement.  For purposes of this Agreement, the following terms shall have the meanings set forth below:

 

Actually Realized ” or “ Actually Realizes ” shall mean, for purposes of determining the timing of the incurrence of any Tax Liability, Distribution Tax Liability, or the realization of a Refund (or any related Tax cost or benefit), whether by receipt or as a credit or other offset to Taxes payable, by a Person in respect of any payment, transaction, occurrence or event, the time at which the amount of Taxes paid (or Refund realized) by such Person is increased above (or reduced below) the amount of Taxes that such Person would have been required to pay (or Refund that such Person would have realized) but for such payment, transaction, occurrence or event.

 

Aggregate Distribution Tax Liabilities ” shall mean, in the event of a Distribution, the sum of the Distribution Tax Liabilities with respect to each Taxing Jurisdiction.

 



 

Carryback ” shall mean the carryback of a Tax Attribute (including, without limitation, a net operating loss, a net capital loss or a tax credit) by a member of the Match Group from a Post-Deconsolidation Taxable Period to a Pre-Deconsolidation Taxable Period during which such member of the Match Group was included in a Combined Return filed for such Pre-Deconsolidation Taxable Period.

 

Code ” shall mean the Internal Revenue Code of 1986, as amended.

 

Combined Return ” shall mean a consolidated, combined or unitary Income Tax Return that includes, by election or otherwise, one or more members of the Parent Group together with one or more members of the Match Group.

 

Deconsolidation Date ” shall mean the date, if any, on which a Deconsolidation Event occurs.

 

Deconsolidation Event ” shall mean any event or transaction that causes Match to cease to be a member of the Parent Consolidated Group.

 

Distribution ” shall mean a distribution, however effected (including by way of a reclassification or split-off), of Match Capital Stock to holders of Parent capital stock in a transaction intended to qualify as tax-free for federal Income Tax purposes pursuant to Section 368(a)(1)(D) and/or Section 355 of the Code.

 

Distribution Date ” shall mean, in the event of a Distribution, the date on which the Distribution is completed.

 

Distribution-Related Proceeding ” shall mean, in the event of a Distribution, any Proceeding in which the IRS, another Tax Authority or any other party asserts a position that could reasonably be expected to adversely affect the Tax-Free Status of the Distribution.

 

Distribution Tax Liabilities ” shall mean, in the event of a Distribution, with respect to any Taxing Jurisdiction, the sum of (a) any increase in a Tax Liability (or reduction in a Refund) Actually Realized as a result of any corporate-level gain or income recognized with respect to the failure of the Distribution to qualify for Tax-Free Status under the Income Tax laws of such Taxing Jurisdiction pursuant to any settlement, Final Determination, judgment, assessment, proposed adjustment or otherwise, (b) interest on such amounts calculated pursuant to such Taxing Jurisdiction’s laws regarding interest on Tax liabilities at the highest Underpayment Rate for corporations in such Taxing Jurisdiction from the date such additional gain or income was recognized until full payment with respect thereto is made pursuant to Section 3 hereof (or in the case of a reduction in a Refund, the amount of interest that would have been received on the foregone portion of the Refund but for the failure of the Distribution to qualify for Tax-Free Status), and (c) any penalties actually paid to such Taxing Jurisdiction that would not have been paid but for the failure of the Distribution to qualify for Tax-Free Status in such Taxing Jurisdiction.

 

EMA ” shall mean the Employee Matters Agreement by and between Parent and Match dated as of November 24, 2015.

 

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Equity Securities ” shall mean any stock or other securities treated as equity for federal income tax purposes, options, warrants, rights, convertible debt, or any other instrument or security that affords any Person the right, whether conditional or otherwise, to acquire stock or to be paid an amount determined by reference to the value of stock.

 

Estimated Tax Payments ” shall have the meaning set forth in Section 2(c).

 

Fifty-Percent or Greater Interest ” shall have the meaning ascribed to such term for purposes of Sections 355(d) and (e) of the Code.

 

Final Determination ” shall mean the final resolution of liability for any Tax, which resolution may be for a specific issue or adjustment or for a taxable period, (a) by IRS Form 870 or 870-AD (or any successor forms thereto), on the date of acceptance by or on behalf of the taxpayer, or by a comparable form under the laws of a State, local, or foreign taxing jurisdiction, except that a Form 870 or 870-AD or comparable form shall not constitute a Final Determination to the extent that it reserves (whether by its terms or by operation of law) the right of the taxpayer to file a claim for Refund or the right of the Tax Authority to assert a further deficiency in respect of such issue or adjustment or for such taxable period (as the case may be); (b) by a decision, judgment, decree, or other order by a court of competent jurisdiction, which has become final and unappealable; (c) by a closing agreement or accepted offer in compromise under Sections 7121 or 7122 of the Code, or a comparable agreement under the laws of a State, local, or foreign taxing jurisdiction; (d) by any allowance of a Refund or credit in respect of an overpayment of Tax, but only after the expiration of all periods during which such Refund may be recovered (including by way of offset) by the jurisdiction imposing such Tax; or (e) by any other final disposition, including by reason of the expiration of the applicable statute of limitations or by mutual agreement of the parties.

 

Group ” shall mean the Parent Group or the Match Group, as applicable.

 

Income Taxes ” (a) shall mean (i) any federal, state, local or foreign taxes, charges, fees, imposts, levies or other assessments that are based upon, measured by, or calculated with respect to (A) net income or profits (including, but not limited to, any capital gains, gross receipts, or minimum tax, and any tax on items of tax preference, but not including sales, use, value added, real property gains, real or personal property, transfer or similar taxes), (B) multiple bases (including, but not limited to, corporate franchise, doing business or occupation taxes), if one or more of the bases upon which such tax may be based, by which it may be measured, or with respect to which it may be calculated is described in clause (a)(i)(A) of this definition, or (C) any net worth, franchise or similar tax, in each case together with (ii) any interest, penalties, fines, additions to tax or additional amounts imposed by any Tax Authority with respect thereto and (b) shall include any transferee or successor liability in respect of an amount described in clause (a) of this definition.

 

Income Tax Return ” shall mean any return, report, filing, statement, questionnaire, declaration or other document filed or required to be filed with a Tax Authority in respect of Income Taxes.

 

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Indemnified Party ” shall mean any Person seeking indemnification pursuant to the provisions of this Agreement.

 

Indemnifying Party ” shall mean any Party from which any Indemnified Party is seeking indemnification pursuant to the provisions of this Agreement.

 

IPO ” shall have the meaning set forth in the recitals.

 

IRS ” shall mean the Internal Revenue Service.

 

Losses ” shall mean any and all losses, liabilities, claims, damages, obligations, payments, costs and expenses, matured or unmatured, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, known or unknown (including, without limitation, the costs and expenses of any and all Actions, threatened Actions, demands, assessments, judgments, settlements and compromises relating thereto and attorneys’ fees and any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any such Actions or threatened Actions).

 

Match ” shall have the meaning set forth in the preamble.

 

Match Active Business ” shall mean, in the event of a Distribution, each trade or business actively conducted (within the meaning of Section 355(b) of the Code) by the Match Consolidated Group immediately after the Distribution, as set forth in the Tax Opinion Documents.

 

Match Adjustment ” shall mean an adjustment of any item of income, gain, loss, deduction or credit on a Combined Return attributable to members of the Match Group (including, in the case of any state or local consolidated, combined or unitary income or franchise Taxes, a change in one or more apportionment factors of members of the Match Group) pursuant to a Final Determination for a Pre-Deconsolidation Taxable Period.

 

Match COD Income ” shall mean 50% of the aggregate amount of cancellation of indebtedness income, if any, recognized by the Parent Consolidated Group as a result of (i) the exchange of 4.75% Senior Notes due 2022 issued by Parent for 6.75% Senior Notes due 2022 issued by Match pursuant to the Exchange Offer and Consent Solicitation commenced on October 16, 2015 and (ii) the purchase for cash of 4.875% Senior Notes due 2018 issued by Parent pursuant to the Offer to Purchase and Consent Solicitation Statement commenced on October 16, 2015.

 

Match Consolidated Group ” shall mean the affiliated group of corporations (within the meaning of Section 1504(a) of the Code) of which Match is the common parent, determined immediately after the Deconsolidation Date (and any predecessor or successor to such affiliated group other than the Parent Consolidated Group).

 

Match Group ” shall mean (a) Match and each Person that is a direct or indirect Subsidiary of Match (including any Subsidiary of Match that is disregarded for U.S. federal Income Tax purposes (or for purposes of any State, local, or foreign tax law)) immediately after the IPO, (b) any corporation (or other Person) that shall have merged or liquidated into Match or

 

4



 

any such Subsidiary and (c) any predecessor or successor to any Person otherwise described in this definition.

 

Match Option ” shall have the meaning ascribed thereto in the EMA.

 

Match Separate Return ” shall mean any Separate Return required to be filed by Match or any member of the Match Group, including, without limitation, any U.S. consolidated federal Income Tax Returns of the Match Consolidated Group required to be filed with respect to a Post-Deconsolidation Taxable Period.

 

Match Stand-Alone Tax Liability ” means, with respect to any Combined Return for any taxable period (or portion thereof) beginning after the date of the IPO, the hypothetical stand-alone Tax Liability of the Match Group and/or any of its members for such taxable period (or portion thereof), determined on the following basis:  (i) to the extent that members of the Match Group would (but for their inclusion in a Combined Return) be entitled to file a Tax Return on a consolidated, combined or unitary basis solely with other members of the Match Group, such Tax Liability shall be determined as though such members filed on a consolidated, combined or unitary basis, as applicable, solely with such other members of the Match Group, (ii) taxable income of the Match Group and/or any of its members shall be calculated by taking into account losses, credits and other Tax attributes of Match and the relevant members of the Match Group, in each case, to the extent arising after the date of the IPO, and treating all such Tax attributes as being subject to the limitations under applicable Tax law (including limitations on carrybacks and carryforwards) that would apply if the relevant members of the Match Group had filed on a separate Tax Return basis for all taxable periods (or portions thereof) relevant to the computation (provided, that the Match Group and/or its members shall be deemed to have relinquished, waived or otherwise foregone any carrybacks to any taxable period (or portion thereof) beginning prior the date of the IPO; and if any such Tax attribute would, under applicable Tax law be required to be carried back, such Tax attribute shall be deemed to be available to the Match Group on a carryforward basis (subject to the limitations under applicable Tax law on such carryforwards)), and (iii) by specially allocating to the Match Group the following items: (A) Match COD Income, (B) any amount required to be included in income pursuant to any “gain recognition agreement” within the meaning of Treasury Regulations Section 1.367-8(c) with respect to which a member of the Match Group is the “U.S. transferor” (regardless of whether such amount is reportable for the taxable year of the initial transfer or the year during which the recognition event occurs), and (C) any compensation deductions to which the Match Group is entitled pursuant to Section 11 hereof.  For the avoidance of doubt, for purposes of calculating any available carryforward or carryback of Tax attributes pursuant to clause (ii) hereof, the utilization of any such Tax attributes by members of the Parent Group shall be disregarded.

 

Notified Action ” shall have the meaning ascribed thereto in Section 4(b)(i).

 

Option ” shall have the meaning ascribed to such term in the EMA.

 

Other Taxes ” shall mean any federal, state, local or foreign taxes, charges, fees imposts, levies or other assessments of any nature whatsoever, and without limiting the generality of the foregoing, shall include superfund, sales, use, ad valorem, value added,

 

5



 

occupancy, transfer, recording, withholding, payroll, employment, excise, occupation, premium or property taxes (in each case, together with any related interest, penalties, additions to tax, or additional amounts imposed by any Tax Authority thereon); provided , however , that Other Taxes shall not include any Income Taxes.

 

Other Tax Returns ” shall mean any return, report, filing, statement, questionnaire, declaration or other document filed or required to be filed with a Tax Authority in respect of Other Taxes.

 

Parent ” shall have the meaning set forth in the preamble.

 

Parent Consolidated Group ” shall mean the affiliated group of corporations (within the meaning of Section 1504(a) of the Code) of which Parent is the common parent (and any predecessor or successor to such affiliated group).

 

Parent Group ” shall mean (a) Parent and each Person that is a direct or indirect Subsidiary of Parent (including any Subsidiary of Parent that is disregarded for U.S. federal Income Tax purposes (or for purposes of any state, local, or foreign tax law)) immediately after the IPO (other than any Person that is a member of the Match Group), (b) any corporation (or other Person) that shall have merged or liquidated into Parent or any such Subsidiary and (c) any predecessor or successor to any Person otherwise described in this definition.

 

Parent Separate Return ” shall mean any Separate Return required to be filed by Parent or any member of the Parent Group.

 

Permitted Transaction ” shall mean, in the event of a Distribution, any transaction that satisfies the requirements of Section 4(c).

 

Person ” shall mean any individual, partnership, joint venture, limited liability company, corporation, association, joint stock company, trust, estate, unincorporated organization or similar entity or a governmental authority or any department or agency or other unit thereof.

 

Post-Deconsolidation Taxable Period ” shall mean a taxable period that, to the extent it relates to a member of the Match Group, begins after the Deconsolidation Date.

 

Pre-Deconsolidation Taxable Period ” shall mean a taxable period that, to the extent it relates to a member of the Match Group, ends on or before the Deconsolidation Date.

 

Private Letter Ruling ” shall mean, in the event of a Distribution, (a) any private letter ruling issued by the IRS in connection with the Distribution or (b) any similar ruling issued by any other Tax Authority in connection with the Distribution.

 

Private Letter Ruling Documents ” shall mean, in the event of a Distribution, (a) any Private Letter Ruling, any request for a Private Letter Ruling submitted to the IRS, together with any appendices and exhibits thereto and any supplemental filings or other materials subsequently submitted to the IRS, in connection with the Distribution-related transactions, or

 

6



 

(b) any similar filings submitted to any other Tax Authority in connection with any such request for a Private Letter Ruling.

 

Proceeding ” shall mean any audit or other examination, or judicial or administrative proceeding relating to liability for, or Refunds or adjustments with respect to, Taxes.

 

Proposed Acquisition Transaction ” shall mean, in the event of a Distribution, a transaction or series of transactions (or any agreement, understanding or arrangement, within the meaning of Section 355(e) of the Code and Treasury Regulations Section 1.355-7, or any other regulations promulgated thereunder, to enter into a transaction or series of transactions), whether such transaction is supported by Match management or shareholders, is a hostile acquisition, or otherwise, as a result of which Match would merge or consolidate with any other Person or as a result of which any Person or Persons would (directly or indirectly) acquire, or have the right to acquire, from Match and/or one or more holders of outstanding shares of Match Capital Stock, a number of shares of Match Capital Stock that would, when combined with any other changes in ownership of Match Capital Stock pertinent for purposes of Section 355(e) of the Code, comprise 40% or more of (a) the value of all outstanding shares of Match stock as of the date of such transaction, or in the case of a series of transactions, the date of the last transaction of such series, or (b) the total combined voting power of all outstanding shares of voting Match stock as of the date of such transaction, or in the case of a series of transactions, the date of the last transaction of such series.  Notwithstanding the foregoing, a Proposed Acquisition Transaction shall not include (a) the adoption by Match of a shareholder rights plan or (b) issuances by Match that satisfy Safe Harbor VIII (relating to acquisitions in connection with a person’s performance of services) or Safe Harbor IX (relating to acquisitions by a retirement plan of an employer) of Treasury Regulation Section 1.355-7(d).  For purposes of determining whether a transaction constitutes an indirect acquisition, any recapitalization resulting in a shift of voting power or any redemption of shares of stock shall be treated as an indirect acquisition of shares of stock by the non-exchanging shareholders.  This definition and the application thereof are intended to monitor compliance with Section 355(e) of the Code and shall be interpreted accordingly.  Any clarification of, or change in, the statute or regulations promulgated under Section 355(e) of the Code shall be incorporated into this definition and its interpretation.

 

Refund ” shall mean any refund of Taxes, including any reduction in Tax Liabilities by means of a credit, offset or otherwise.

 

Representative ” shall mean with respect to a Person, such Person’s officers, directors, employees and other authorized agents.

 

Restriction Period ” shall mean, in the event of a Distribution, the period beginning on the Distribution Date and ending on the day following the two-year anniversary thereof.

 

Section 336(e) Election ” shall have the meaning set forth in Section 4(d).

 

Separate Return ” shall mean (a) in the case of any Tax Return required to be filed by any member of the Match Group (including any consolidated, combined or unitary

 

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return), any such Tax Return that does not include any member of the Parent Group and (b) in the case of any Tax Return required to be filed by any member of the Parent Group (including any consolidated, combined or unitary return), any such Tax Return that does not include any member of the Match Group.

 

Tax Attribute ” shall mean a consolidated, combined or unitary net operating loss, net capital loss, unused investment credit, unused foreign tax credit, or excess charitable contribution (as such terms are used in Treasury Regulations 1.1502-79 and 1.1502-79A or comparable provisions of foreign, state or local tax law), or a minimum tax credit or general business credit.

 

Tax Authority ” shall mean a governmental authority (foreign or domestic) or any subdivision, agency, commission or authority thereof or any quasi-governmental or private body having jurisdiction over the assessment, determination, collection or imposition of any Tax (including, without limitation, the IRS).

 

Tax Benefits ” shall have the meaning set forth in Section 3(c) hereof.

 

Tax Counsel ” shall mean tax counsel of recognized national standing that is acceptable to Parent in its sole discretion.

 

Taxes ” shall mean any Income Taxes and Other Taxes.

 

Tax-Free Status ” shall mean, in the event of a Distribution, the qualification of the Distribution, (a) as a transaction described in Section 368(a)(1)(D) and/or Section 355(a) of the Code, (b) as a transaction in which the stock distributed thereby is “qualified property” for purposes of Sections 355(c)(2) and 361(c)(2) of the Code, and (c) as a transaction in which Parent, the members of the Parent Group, Match and the members of the Match Group recognize no income or gain, other than intercompany items or excess loss accounts, if any, taken into account pursuant to the Treasury Regulations promulgated pursuant to Section 1502 of the Code.

 

Taxing Jurisdiction ” shall mean the United States and every other government or governmental unit having jurisdiction to tax Parent, Match or any of their respective Subsidiaries.

 

Tax Liabilities ” shall mean any liability for Taxes.

 

Tax Opinion ” shall mean, in the event of a Distribution, the opinion issued to Parent by Tax Counsel regarding the Tax-Free Status of the Distribution.

 

Tax Opinion Documents ” shall mean, in the event of a Distribution, the Tax Opinion and the information and representations provided by, or on behalf of, Parent and Match to Tax Counsel in connection therewith.

 

Tax-Related Losses ” shall mean, in the event of a Distribution:

 

(a)                                  the Aggregate Distribution Tax Liabilities,

 

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(b)                                  all reasonable accounting, legal and other professional fees, and court costs incurred in connection with any settlement, Final Determination, judgment or other determination with respect to such Aggregate Distribution Tax Liabilities, and

 

(c)                                   all costs, expenses and damages associated with stockholder litigation or controversies and any amount required to be paid by Parent or Match in respect of the liability of shareholders, whether paid to shareholders or to the IRS or any other Tax Authority payable by Parent or Match or their respective Affiliates, in each case, resulting from the failure of the Distribution to qualify for Tax-Free Status.

 

Transaction Agreement ” shall have the meaning set forth in the recitals of this Agreement.

 

Underpayment Rate ” shall mean the annual rate of interest described in Section 6621(c) of the Code for large corporate underpayments of Income Tax (or similar provision of state, local, or foreign Income Tax law, as applicable), as determined from time to time.

 

Unqualified Tax Opinion ” shall mean, in the event of a Distribution, an unqualified opinion of Tax Counsel on which Parent may rely to the effect that a transaction (a) will not disqualify the Distribution from Tax-Free Status, assuming that the Distribution would have qualified for Tax-Free Status if such transaction did not occur, and (b) will not adversely affect any of the conclusions set forth in the Tax Opinion; provided that any tax opinion obtained in connection with a proposed acquisition of Equity Securities of Match entered into during the Restriction Period shall not qualify as an Unqualified Tax Opinion unless such tax opinion concludes that such proposed acquisition will not be treated as “part of a plan (or series of related transactions)” within the meaning of Section 355(e) of the Code and the Treasury Regulations promulgated thereunder, that includes the Distribution.

 

2.                                       Tax Returns; Responsibility for Taxes .

 

(a)                                  Preparation and Filing of Tax Returns; Payment of Taxes .

 

(i)                                      Parent Consolidated Returns; Other Combined Returns .  Parent shall prepare and file or cause to be prepared and filed (A) all U.S. consolidated federal Income Tax Returns of the Parent Consolidated Group and (B) all other Combined Returns for all taxable periods.  Subject to Section 2(c) hereof, Parent shall pay, or cause to be paid, any and all Taxes due or required to be paid with respect to or required to be reported on any such Tax Return (including any increase in such Tax Liabilities attributable to a Final Determination).

 

(ii)                                   Parent Separate Returns .  Parent shall prepare and file or cause to be prepared and filed all Parent Separate Returns for all taxable periods.  Parent shall pay, or cause to be paid, any and all Taxes due or required to be paid with respect to or required to be reported on any Parent Separate Return (including any increase in such Tax Liabilities attributable to a Final Determination).

 

(iii)                                Match Separate Returns .  Match shall prepare and file or cause to be prepared and filed all Match Separate Returns for all taxable periods ending on or after the date hereof.  Match shall pay, or cause to be paid, any and all Taxes due or required to be paid

 

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with respect to or required to be reported on any Match Separate Return (including any increase in such Tax Liabilities attributable to a Final Determination).

 

(b)                                  Tax Returns Standards .

 

(i)                                      Parent (or its designee) shall determine the entities to be included in any Combined Return and make or revoke any Tax elections, adopt or change any accounting methods, and determine any other position taken on or in respect of any Tax Return required to be prepared and filed by Parent pursuant to Section 2(a)(i).  Match shall elect and join, and shall cause its respective Subsidiaries to elect and join any Combined Returns that Parent determines to file.  Any Tax Return filed by Parent pursuant to Section 2(a)(i) with respect to any Pre-Deconsolidation Taxable Period or any taxable period that includes the Deconsolidation Date shall, to the extent relating to Match or the Match Group, be prepared in good faith, provided that Tax items shall be apportioned between Pre-Deconsolidation Taxable Periods and Post-Deconsolidation Taxable Periods in accordance with the principles of Treasury Regulations Section 1.1502-76(b) as reasonably interpreted and applied by Parent.  Match shall, and shall cause each member of the Match Group promptly (and in any event within 30 days following a request by Parent) to, prepare and deliver to Parent, at its expense, all information that Parent may reasonably request, in such form as Parent may reasonably request, including any information required to enable Parent to prepare any Tax Return required to be filed by Parent pursuant to Section 2(a)(i).  Parent shall make any such Tax Return and related workpapers available for review by Match sufficiently in advance of the due date for filing such Tax Return to the extent such Tax Return relates to Taxes for which Match is or would reasonably be expected to be responsible or with respect to which Match would reasonably be expected to have a claim.  Parent and Match shall attempt in good faith to resolve any issues arising out of the review of such Tax Return.

 

(ii)                                   Except to the extent otherwise required by applicable Law or as a result of a Final Determination, Match shall not (and shall not cause or permit any members of the Match Group to) take any position on any Match Separate Return (A) that is inconsistent with the past practices, accounting methods, elections or conventions used by Parent or any of its Subsidiaries in preparing any Tax Return for which Parent is responsible pursuant to Section 2(a)(i) (unless there is no reasonable basis for such past practices, methods, elections or conventions or there is no adverse effect on any member of the Parent Group), or (B) that is inconsistent with this Agreement or, in the event of a Distribution, any Tax Opinion or Tax Opinion Documents, any Unqualified Tax Opinion, or any Private Letter Ruling (including any supplemental Private Letter Ruling).

 

(c)                                   Match Tax Sharing Payments .

 

(i)                                      With respect to any Combined Return for each taxable period (or portion thereof) that begins after the date of the IPO, Match shall pay, or cause to be paid, to Parent the amount of estimated Taxes, if any, that would be incurred by the Match Group and/or its members for such taxable period had the Match Group and/or its members not been included in such Combined Return (“ Estimated Tax Payments ”).  The Estimated Tax Payments owed by the Match Group or any of its members for any such taxable period (or portion thereof) shall be determined in accordance with the definition of Match Stand-Alone Tax Liability.

 

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(ii)                                   With respect to any Combined Return for each taxable period (or portion thereof) that begins after the date of the IPO, Match shall pay, or shall cause to be paid, to Parent an amount equal to the excess, if any, of (A) the Match Stand-Alone Tax Liability for such taxable period over (B) the aggregate amount of Estimated Tax Payments made to Parent for such taxable period.  If the aggregate amount of Estimated Tax Payments made to Parent with respect to such taxable period exceeds the Match Stand-Alone Tax Liability for such taxable period, Parent shall pay to Match an amount equal to such excess.

 

(iii)                                At least ten (10) days prior to the due date for any payment of Taxes (including estimated Taxes) in respect of any Combined Return for any taxable period (or portion thereof) that begins after the date of the IPO, Parent shall deliver to Match a schedule setting forth in reasonable detail Parent’s calculation of the Match Stand-Alone Tax Liability or Estimated Tax Payments, as applicable.  No later than ten (10) days following the delivery of such schedule, Match shall pay Parent (or Parent shall pay Match) the amount shown as due on such schedule.

 

(iv)                               If, as a result of a Final Determination with respect to any Combined Return or the filing by Parent or any member of the Parent Group of any amended Combined Return, in each case, for any taxable period, there is an increase or decrease in the Match Stand-Alone Tax Liability for such taxable period (or any preceding or subsequent taxable period, in each case, beginning after the date of the IPO), the parties shall promptly make appropriate adjusting payments such that the aggregate amount paid by Match to Parent for such taxable period (and any prior or subsequent taxable periods affected by such Final Determination or amended Combined Return, in each case, beginning after the date of the IPO) equals the redetermined Match Stand-Alone Tax Liability for such taxable period or periods; provided , that if such Final Determination or amended Combined Return affects one or more taxable periods (or portions thereof) ending on or prior to the date of the IPO, Parent shall determine in good faith the portion of any increase or decrease in the Tax liability reflected on the relevant Combined Return(s) for such taxable periods that is attributable to members of the Match Group and shall notify Match within ten (10) days of its determination in writing.  No later than ten (10) days following the delivery of such schedule, Match shall pay Parent (or Parent shall pay Match) the amount shown as due on such schedule.

 

3.                                       Responsibility for Taxes and Indemnification .

 

(a)                                  Parent Liability .  Except as otherwise provided in Section 3(b), Parent and the members of the Parent Group shall be responsible for and shall indemnify and hold harmless Match and its Affiliates and each of their respective officers, directors and employees from and against (i) any Taxes imposed with respect to any Combined Return (except to the extent that Match is responsible for such Taxes pursuant to this Agreement (including any Match Stand-Alone Tax Liability)) and any other Taxes imposed with respect to any Tax Return for which any member of the Parent Group is responsible pursuant to Section 2(a)(ii), (ii) any Taxes resulting from any breach by Parent of any representation or covenant in this Agreement, the Transaction Agreement or any Ancillary Agreement, and (iii) in the event of a Distribution, any Tax-Related Losses for which Parent is responsible pursuant to Section 4(c) of this Agreement.

 

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(b)                                  Match Liability .  Match and the members of the Match Group shall be responsible for and shall indemnify and hold harmless Parent and its Affiliates and each of their respective officers, directors and employees from and against (i) any Taxes imposed with respect to any Combined Return to the extent that Match is responsible for such Taxes pursuant to this Agreement (including any Match Stand-Alone Tax Liability) and any other Taxes imposed with respect to any Tax Return for which any member of the Match Group is responsible pursuant to Section 2(a)(iii), (ii) any Taxes resulting from any breach by Match of any representation or covenant in this Agreement, the Transaction Agreement or any Ancillary Agreement, and (iii) in the event of a Distribution, any Tax-Related Losses for which Match is responsible pursuant to Section 4(c) of this Agreement.

 

(c)                                   Tax Benefits .  If an indemnification obligation of Parent or any member of the Parent Group under Section 3(a) (or the adjustment giving rise to such indemnification obligation) results in (i) increased deductions, losses, or credits, or (ii) decreases in income, gains or recapture of Tax credits (“ Tax Benefits ”) to Match or any member of the Match Group, which would not, but for the indemnification obligation (or the adjustment giving rise to such indemnification obligation), be allowable, then Match shall pay Parent the amount by which such Tax Benefit actually reduces, in cash, the amount of Tax that Match or any member of the Match Group would have been required to pay and bear (or increases, in cash, the amount of Tax Refund to which Match or any member of the Match Group would have been entitled) but for such indemnification obligation (or adjustment giving rise to such indemnification obligation).  Match shall pay Parent for such Tax Benefit no later than ten (10) days after such Tax Benefit is Actually Realized.  If an indemnification obligation of Match or any member of the Match Group under Section 3(b) (or the adjustment giving rise to such indemnification obligation) results in a Tax Benefit to Parent or any member of the Parent Group, which would not, but for the Tax which is the subject of the indemnification obligation (or the adjustment giving rise to such indemnification obligation), be allowable, then Parent shall pay Match the amount by which such Tax Benefit actually reduces, in cash, the amount of Tax that Parent or any member of the Parent Group would have been required to pay and bear (or increases, in cash, the amount of Tax refund to which Parent or any member of the Parent Group would have been entitled) but for such indemnification (or adjustment giving rise to such indemnification obligation).  Match shall pay Parent for such Tax Benefit no later than ten (10) days after such Tax Benefit is Actually Realized.

 

(d)                                  Timing of Indemnification Payments .  Any indemnification payment required to made pursuant to this Section 3 (other than a payment for any Tax Benefit, the timing of which is provided in Section 3(c)) shall be made by the Indemnifying Party promptly, but, in any event, no later than:

 

(i)                                      in the case of an indemnification obligation with respect to any Tax Liabilities, the later of (A) five (5) days after the Indemnified Party notifies the Indemnifying Party in writing and (B) five (5) days prior to the date the Indemnified Party is required to make a payment of Taxes to the applicable Tax Authority (including a payment with respect to an assessment of a tax deficiency by any Taxing Jurisdiction or a payment made in settlement of an asserted tax deficiency) or realizes a reduced Refund; and

 

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(ii)                                   in the case of any indemnification payment for any Losses not otherwise described in clause (i) of this Section 3(d) (including, but not limited to, any Losses described in clause (b) or (c) of the definition of Tax-Related Losses, attorneys’ fees and expenses and other indemnifiable Losses), the later of (A) five (5) days after the Indemnified Party notifies the Indemnifying Party in writing and (B) five (5) days prior to the date the Indemnified Party is required to make a payment thereof.

 

4.                                       Distribution-Related Matters .

 

(a)                                  Covenants .

 

(i)                                      Match agrees that, as long as a Distribution could, in the reasonable discretion of Parent, be effected, (A) Match shall (and shall cause each member of the Match Group to) take any action reasonably requested by Parent in order to consummate a Distribution, and (B) Match shall not take or fail to take any action (and it shall cause the members of the Match Group not to take or fail to take any action) which action or failure to act could reasonably be expected to prevent Parent from consummating a Distribution.  Match agrees that, without Parent’s prior written consent, it will not take (and will cause each member of the Match Group not to take) any action that could reasonably be expected to (1) cause Parent to cease to have “control” (within the meaning of Section 368(c) of the Code) of Match or (2) result in a Deconsolidation Event, in each case, prior to the Distribution Date.

 

(ii)                                   In the event of a Distribution, neither Parent (or any member of the Parent Group) nor Match (or any member of the Match Group) shall take or fail to take any action, or permit or cause any member of the Parent Group or the Match Group, respectively, to take or fail to take any action, if such action or failure to act would be inconsistent with or cause to be untrue any material information, covenant or representation in the Tax Opinion Documents or Private Letter Ruling.

 

(iii)                                In the event of a Distribution, from and after the Distribution Date, Match shall not (A) take any action or permit any member of the Match Group to take any action, and Match shall not fail to take any action or permit any member of the Match Group to fail to take any action, in each case, unless such action or failure to act could not reasonably be expected to (1) cause the Distribution to fail to have Tax-Free Status or (2) require Parent or Match to reflect a liability or reserve for Income Taxes with respect to the Distribution in its financial statements, or (B) until the first day after the Restriction Period, engage in any transaction that could result in the Match Consolidated Group ceasing to be engaged in any Match Active Business for purposes of Section 355(b)(2) of the Code.

 

(iv)                               In the event of a Distribution, from and after the Distribution Date until the first day after the Restriction Period, Match shall not (A) enter into any Proposed Acquisition Transaction or, to the extent Match has the right to prohibit any Proposed Acquisition Transaction, permit any Proposed Acquisition Transaction to occur (whether by (x) redeeming rights under a shareholder rights plan, (y) finding a tender offer to be a “permitted offer” under any such plan or otherwise causing any such plan to be inapplicable or neutralized with respect to any Proposed Acquisition Transaction, or (z) approving any Proposed Acquisition Transaction, whether for purposes of Section 203 of the DGCL or any similar

 

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corporate statute, any “fair price” or other provision of Match’s charter or bylaws or otherwise), (B) merge or consolidate with any other Person or liquidate or partially liquidate, (C) in a single transaction or series of transactions (1) sell or transfer (other than sales or transfers of inventory in the ordinary course of business) all or substantially all of the assets held by Match at the time of the Distribution (2) sell or transfer 50% or more of the gross assets of the Match Active Business or (3) sell or transfer 30% or more of the consolidated gross assets of Match and its Subsidiaries (in each case, such percentages to be measured based on fair market value as of the Distribution Date), (D) redeem or otherwise repurchase (directly or through a Subsidiary) any Match stock, or rights to acquire stock, except to the extent such repurchases satisfy Section 4.05(1)(b) of Revenue Procedure 96-30 (as in effect prior to the amendment by Revenue Procedure 2003-48), (E) amend its certificate of incorporation (or other organizational documents), or take any other action, whether through a stockholder vote or otherwise, affecting the voting rights of Match Capital Stock (including, without limitation, through the conversion of one class of Match Capital Stock into another class of Match Capital Stock), or (F) take any other action or actions (including any action or transaction that would be reasonably likely to be inconsistent with any representation or covenant made in the Tax Opinion Documents or Private Letter Ruling) which in the aggregate (and taking into account any other transactions described in this subparagraph (iv)) would be reasonably likely to have the effect of causing or permitting one or more Persons to acquire, directly or indirectly, stock representing a Fifty-Percent or Greater Interest in Match or otherwise jeopardize the Tax Free Status of the Distribution, unless, in each case, prior to taking any such action set forth in the foregoing clauses (A) through (F), Match shall have requested that Parent obtain a Private Letter Ruling (or, if applicable, a supplemental Private Letter Ruling) from the IRS and/or any other applicable Tax Authority in accordance with Section 4(b) of this Agreement to the effect that such transaction will not affect the Tax-Free Status of the Distribution and Parent shall have received such Private Letter Ruling in form and substance satisfactory to Parent in its reasonable discretion (and in determining whether a Private Letter Ruling is satisfactory, Parent may consider, among other factors, the appropriateness of any underlying assumptions and representations made in connection with such Private Letter Ruling), or Match shall provide Parent with an Unqualified Tax Opinion in form and substance satisfactory to Parent in its reasonable discretion (and in determining whether an opinion is satisfactory, Parent may consider, among other factors, the appropriateness of any underlying assumptions and representations if used as a basis for the opinion), or Parent shall have waived the requirement to obtain such private letter ruling or Unqualified Tax Opinion.

 

(b)                                  Procedures Regarding Opinions and Rulings .

 

(i)                                      If Match notifies Parent that it desires to take one of the actions described in clauses (A) through (F) of Section 4(a)(iv) (a “ Notified Action ”), Parent and Match shall reasonably cooperate to attempt to obtain the Private Letter Ruling or Unqualified Tax Opinion referred to in Section 4(a)(iv), unless Parent shall have waived the requirement to obtain such Private Letter Ruling or Unqualified Tax Opinion.

 

(ii)                                   At the reasonable request of Match pursuant to Section 4(a)(iv), Parent shall cooperate with Match and use commercially reasonable efforts to seek to obtain, as expeditiously as possible, a Private Letter Ruling from the IRS (and/or any other applicable Tax Authority, or if applicable, a supplemental Private Letter Ruling) or an Unqualified Tax Opinion

 

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for the purpose of permitting Match to take the Notified Action.  Further, in no event shall Parent be required to file any request for a Private Letter Ruling under this Section 4(b) unless Match represents that (A) it has reviewed the request for such Private Letter Ruling, and (B) all information and representations, if any, relating to any member of the Match Group, contained in the related Private Letter Ruling documents are (subject to any qualifications therein) true, correct and complete.  Match shall reimburse Parent for all reasonable costs and expenses incurred by the Parent Group in obtaining a Private Letter Ruling or Unqualified Tax Opinion requested by Match within ten (10) days after receiving an invoice from Parent therefor.

 

(iii)                                Parent shall have the right to request a Private Letter Ruling from the IRS (and/or any other applicable Tax Authority, or if applicable, a supplemental Private Letter Ruling) or an Unqualified Tax Opinion at any time in its sole and absolute discretion.  If Parent determines to obtain a Private Letter Ruling or an Unqualified Tax Opinion, Match shall (and shall cause each Affiliate of Match to) cooperate with Parent and take any and all actions reasonably requested by Parent in connection with obtaining the Private Letter Ruling or Unqualified Tax Opinion (including, without limitation, by making any representation or covenant or providing any materials or information requested by the IRS or Tax Counsel; provided that Match shall not be required to make (or cause any Affiliate of Match to make) any representation or covenant that is inconsistent with historical facts or as to future matters or events over which it has no control).  Parent and Match shall each bear its own costs and expenses in obtaining a Private Letter Ruling or an Unqualified Tax Opinion requested by Parent.

 

(iv)                               Match hereby agrees that Parent shall have sole and exclusive control over the process of obtaining any Private Letter Ruling, and that only Parent shall apply for a Private Letter Ruling.  In connection with obtaining a Private Letter Ruling pursuant to Section 4(b) hereof, (A) Parent shall keep Match informed in a timely manner of all material actions taken or proposed to be taken by Parent in connection therewith; (B) Parent shall (1) reasonably in advance of the submission of any related Private Letter Ruling documents provide Match with a draft copy thereof, (2) reasonably consider Match’s comments on such draft copy, and (3) provide Match with a final copy; and (C) Parent shall provide Match with notice reasonably in advance of, and Match shall have the right to attend, any formally scheduled meetings with the IRS (subject to the approval of the IRS) that relate to such Private Letter Ruling.  Neither Match nor any member of the Match Group shall request any guidance from the IRS or any other Tax Authority (whether written, verbal or otherwise) at any time concerning the Distribution (including the impact of any transaction on the Distribution).

 

(c)                                   Responsibility for Tax-Related Losses .

 

(i)                                      Notwithstanding anything in this Agreement to the contrary, subject to Section 4(c)(iii), in the event of a Distribution, Match shall be responsible for, and shall indemnify and hold harmless Parent and its Affiliates and each of their respective officers, directors and employees from and against, one hundred percent (100%) of any Tax-Related Losses that are attributable to or result from any one or more of the following:  (A) the acquisition after the Distribution of all or a portion of Match’s Capital Stock and/or its or its subsidiaries’ assets by any means whatsoever by any Person, (B) any “agreement, understanding, arrangement, substantial negotiations or discussions” (as such terms are defined in Treasury

 

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Regulation Section 1.355-7(h)) by any one or more officers or directors of any member of the Match Group or by any other Person or Persons with the implicit or explicit permission of one or more of such officers or directors (other than officers or directors of Parent) that cause the Distribution to be treated as part of a plan pursuant to which one or more Persons acquire, directly or indirectly, Match stock representing a Fifty-Percent or Greater Interest therein, (C) any action or failure to act by Match after the Distribution (including, without limitation, any amendment to Match’s certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of Match stock (including, without limitation, through the conversion of one class of Match Capital Stock into another class of Match Capital Stock), or (D) any breach by Match or any Match Affiliate of any covenant contained in Section 4(a)(ii), (iii) or (iv) (regardless whether such act or failure to act is covered by a Private Letter Ruling, Unqualified Tax Opinion or Parent waiver described in Section 4(a)(iv).

 

(ii)                                   Notwithstanding anything in this Agreement to the contrary, subject to Section 4(c)(iii), in the event of a Distribution, Parent shall be responsible for, and shall indemnify and hold harmless Match and its Affiliates and each of their respective officers, directors and employees from and against, one hundred percent (100%) of any Tax-Related Losses that are attributable to, or result from any one or more of the following:  (A) the acquisition after the Distribution of all or a portion of Parent’s stock and/or its or its subsidiaries’ assets by any means whatsoever by any Person, (B) any “agreement, understanding, arrangement, substantial negotiations or discussions” (as such terms are defined in Treasury Regulation Section 1.355-7(h)) by any one or more officers or directors of any member of the Parent Group or by any other Person or Persons with the implicit or explicit permission of one or more of such officers or directors that cause the Distribution to be treated as part of a plan pursuant to which one or more Persons acquire, directly or indirectly, stock of Parent representing a Fifty-Percent or Greater Interest therein, or (C) any breach by Parent or a member of the Parent Group of any covenant contained in Section 4(a)(ii).

 

(iii)                                To the extent any Tax-Related Loss is subject to indemnification under both Sections 4(c)(i) and (ii), responsibility for such Tax-Related Loss shall be shared by Parent and Match according to relative fault.

 

(A)                                Notwithstanding anything in Section 4(c)(ii) or (iii) or any other provision of this Agreement to the contrary:

 

(1)                                  with respect to (I) any Tax-Related Loss resulting from the application of Section 355(e) of the Code and (II) any other Tax-Related Loss resulting, in each case, in whole or in part, from an acquisition after the Distribution of any stock or assets of Match (or any member of the Match Group) by any means whatsoever by any Person or any action or failure to act by Match after the Distribution affecting the voting rights of Match, Match shall be responsible for, and shall indemnify and hold harmless Parent and its Affiliates and each of their respective officers, directors and employees from and against, one hundred percent (100%) of such Tax-Related Loss; and

 

(2)                                  for purposes of calculating the amount and timing of any Tax-Related Loss for which Match is responsible under this Section 4(c)(iii)(A), Tax-Related

 

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Losses shall be calculated by assuming that Parent, the Parent Consolidated Group and each member of the Parent Group (I) pay Tax at the highest marginal corporate Tax rates in effect in each relevant taxable year and (II) have no Tax Attributes in any relevant taxable year.

 

(B)                                Notwithstanding anything in Section 4(c)(i) or (iii) or any other provision of this Agreement to the contrary, with respect to (I) any Tax-Related Loss resulting from the application of Section 355(e) of the Code (other than as a result of an acquisition of a Fifty-Percent or Greater Interest in Match) and (II) any other Tax-Related Loss resulting, in each case, in whole or in part, from an acquisition after the Distribution of any stock or assets of Parent (or any member of the Parent Group) by any means whatsoever by any Person, Parent shall be responsible for, and shall indemnify and hold harmless Match and its Affiliates and each of their respective officers, directors and employees from and against, one hundred percent (100%) of such Tax-Related Loss.

 

(d)                                  Section 336(e) Election .  If Parent determines, in its sole discretion, that a protective election under Section 336(e) of the Code (a “ Section 336(e) Election ”) shall be made with respect to the Distribution, Match shall (and shall cause the relevant members of the Match Group to) join with Parent or the relevant members of the Match Group in the making of such election and shall take any action reasonably requested by Parent or that is otherwise necessary to give effect to such election (including making any other related election).  If a Section 336(e) Election is made with respect to the Distribution, then this Agreement shall be amended in such a manner as is determined by Parent in good faith to take into account such Section 336(e) Election (including by requiring that, in the event the Distribution fails to have Tax-Free Status and Parent is not entitled to indemnification for the Tax-Related Losses arising from such failure, Match shall pay over to Parent any Tax Benefits realized by the Match Group arising from the step-up in Tax basis resulting from the Section 336(e) Election).

 

5.                                       Refunds .  Parent shall be entitled to all Refunds (and any interest thereon received from the applicable Tax Authority) of Taxes for which Parent is responsible pursuant to this Agreement. Match shall be entitled to all Refunds (and any interest thereon received from the applicable Tax Authority) of Taxes for which Match is responsible pursuant to this Agreement.  A party receiving a Refund to which another party is entitled pursuant to this Section 5 shall pay the amount to which such other party is entitled within ten (10) days after such Refund is Actually Realized.  Each of Parent and Match shall cooperate with the other party in connection with any claim for a Refund in respect of a Tax for which any member of the Parent Group or the Match Group, as the case may be, is responsible.

 

6.                                       Tax Contests .

 

(a)                                  Notification .  Each of Parent and Match shall notify the other party in writing of any communication with respect to any pending or threatened Proceeding in connection with a Tax Liability (or any issue related thereto) of Parent or any member of the Parent Group, or Match or any member of the Match Group, respectively, for which a member of the Match Group or the Parent Group, respectively, may be responsible pursuant to this Agreement within ten (10) days of receipt; provided , however , that in the case of any Distribution-Related Proceeding (whether or not Match or Parent may be responsible thereunder), such notice shall be provided no later than ten (10) days after Parent or Match, as

 

17



 

the case may be, first receives written notice from the IRS or other Tax Authority of such Distribution-Related Proceeding).  Each of Parent and Match shall include with such notification a true, correct and complete copy of any written communication, and an accurate and complete written summary of any oral communication, received by Parent or a member of the Parent Group, or Match or a member of the Match Group, respectively.  The failure of Parent or Match timely to forward such notification in accordance with the immediately preceding sentence shall not relieve Match or Parent, respectively, of any obligation to pay such Tax Liability or indemnify Parent and the members of the Parent Group, or Match and the members of the Match Group, respectively, and their respective Representatives, Affiliates, successors and assigns therefor, except to the extent that the failure timely to forward such notification actually prejudices the ability of Match or Parent to contest such Tax Liability or increases the amount of such Tax Liability.

 

(b)                                  Representation with Respect to Tax Disputes .  Parent (or such member of the Parent Group as Parent shall designate) shall, subject to Section 6(d), have the exclusive right to represent the interests of the members of the Parent Group and the members of the Match Group and to employ counsel of its choice at its expense in any Proceeding relating to (i) any U.S. consolidated federal Income Tax Returns of the Parent Consolidated Group, (ii) any other Combined Returns and (iii) any Parent Separate Returns.  Match (or such member of the Match Group as Match shall designate) shall have the sole right to represent the interests of the members of the Match Group and to employ counsel of its choice at its expense in any Proceeding relating to any Match Separate Returns.

 

(c)                                   Power of Attorney .  Each member of the Match Group shall execute and deliver to Parent (or such member of the Parent Group as Parent shall designate) any power of attorney or other document requested by Parent (or such designee) in connection with any Proceeding described in the first sentence of Section 6(b).

 

(d)                                  Distribution-Related Proceedings and Proceedings with Respect to Combined Returns .

 

(i)                                      In the event of any Distribution-Related Proceeding or Proceeding relating to a Combined Return that Parent has the right to control pursuant to Section 6(b) and as a result of which Match could reasonably be expected to become liable for any Tax or any Tax-Related Losses in excess of five (5) million dollars, (A) Parent shall consult with Match reasonably in advance of taking any significant action in connection with such Proceeding, (B) Parent shall consult with Match and offer Match a reasonable opportunity to comment before submitting any written materials prepared or furnished in connection with such Proceeding, (C) Parent shall defend such Proceeding diligently and in good faith as if it were the only party in interest in connection with such Proceeding, and (D) Parent shall provide Match copies of any written materials relating to such Proceeding received from the relevant Tax Authority.  Notwithstanding anything in the preceding sentence to the contrary, the final determination of the positions taken, including with respect to any settlement or other disposition, in (1) any Distribution-Related Proceeding, or (2) any other Proceeding relating to a Combined Return, which other Proceeding would not reasonably be expected to result in a liability for additional Taxes for which Match is responsible in an amount exceeding five (5) million dollars for a single tax year, shall be made in the sole discretion of Parent and shall be final and not subject to the

 

18



 

dispute resolution provisions of Article 9.  With respect to any Proceeding relating to a Combined Return (other than any Distribution-Related Proceeding), which could reasonably be expected to result in liability for additional Taxes for which Match is responsible in an amount in an amount exceeding five (5) million dollars for a single tax year, Match shall be entitled to participate in such Proceeding, and Parent shall not settle, compromise or abandon any such Proceeding without obtaining the prior written consent of Match, which consent shall not be unreasonably withheld.

 

(ii)                                   In the event of any Distribution-Related Proceeding with respect to any Match Separate Return, (A) Match shall consult with Parent reasonably in advance of taking any significant action in connection with such Proceeding, (B) Match shall consult with Parent and offer Parent a reasonable opportunity to comment before submitting any written materials prepared or furnished in connection with such Proceeding, (C) Match shall defend such Proceeding diligently and in good faith as if it were the only party in interest in connection with such Proceeding, (D) Parent shall be entitled to participate in such Proceeding and receive copies of any written materials relating to such Proceeding received from the relevant Tax Authority, and (E) Match shall not settle, compromise or abandon any such Proceeding without obtaining the prior written consent of Parent, which consent shall not be unreasonably withheld.

 

7.                                       Apportionment of Tax Attributes upon Deconsolidation; Carrybacks .

 

(a)                                  Apportionment of Tax Attributes upon Deconsolidation .  In the event of a Deconsolidation Event:

 

(i)                                      Parent shall determine the portion, if any, of any Tax Attribute of the Parent Consolidated Group required to be apportioned to Match or any member of the Match Consolidated Group and/or treated as a carryover to the first Post-Deconsolidation Taxable Period of Match (or such member) in accordance with Treasury Regulation Sections 1.1502-21, 1.1502-21T, 1.1502-22, 1.1502-79 and, if applicable, 1.1502-79A.

 

(ii)                                   No Tax Attribute with respect to consolidated U.S. federal Income Tax of the Parent Consolidated Group, other than those described in Section 7(a)(i), and no Tax Attribute with respect to any consolidated, combined or unitary State, local, or foreign Income Tax, in each case, arising in respect of a Combined Return shall be apportioned to Match or any member of the Match Group, except as Parent (or such member of the Parent Group as Parent shall designate) determines is otherwise required under applicable Law.

 

(iii)                                Parent (or its designee) shall determine the portion, if any, of any Tax Attribute which must (absent a Final Determination to the contrary) be apportioned to Match or any member of the Match Group in accordance with this Section 7(a) and applicable Law, and, if applicable, the amount of tax basis and earnings and profits to be apportioned to Match or any member of the Match Group in accordance with applicable Law, and shall provide written notice of the calculation thereof to Match as soon as practicable after the information necessary to make such calculation becomes available to Parent.

 

(iv)                               Except as otherwise required by applicable Law or pursuant to a Final Determination, Match shall not take any position (whether on a Tax Return or otherwise)

 

19



 

that is inconsistent with the information contained in the written notice delivered by Parent pursuant to Section 7(a)(iii).

 

(b)                                  Carrybacks .  Except to the extent otherwise consented to by Parent or prohibited by applicable Law, Match shall elect to relinquish, waive or otherwise forgo all Carrybacks.  In the event that Match (or the appropriate member of the Match Group) is prohibited by applicable Law to relinquish, waive or otherwise forgo a Carryback (or Parent consents to a Carryback), (i) Parent shall cooperate with Match, at Match’s expense, in seeking from the appropriate Tax Authority such Refund as reasonably would result from such Carryback, and (ii) Match shall be entitled to any Refund Actually Realized by a member of the Parent Group (including any interest thereon received from such Tax Authority), to the extent that such Refund is directly attributable to such Carryback, within ten (10) days after such Refund is Actually Realized; provided , however , that Match shall indemnify and hold the members of the Parent Group harmless from and against any and all collateral Tax consequences resulting from or caused by any such Carryback, including (but not limited to) the loss or postponement of any benefit from the use of Tax Attributes generated by a member of the Parent Group or an Affiliate thereof if (x) such Tax Attributes expire unutilized, but would have been utilized but for such Carryback, or (y) the use of such Tax Attributes is postponed to a later taxable period than the taxable period in which such Tax Attributes would have been utilized but for such Carryback.  If there is a Final Determination that results in any change to or adjustment of a Refund Actually Realized by a member of the Parent Group that is directly attributable to a Carryback, then Parent (or its designee) shall make a payment to Match, or Match shall make a payment to Parent (or its designee), as may be necessary to adjust the payments between Match and Parent (or its designee) to reflect the payments that would have been made under this Section 7(b) had the adjusted amount of such Refund been taken into account in computing payments under this Section 7(b).

 

8.                                       Cooperation and Exchange of Information .

 

(a)                                  Cooperation and Exchange of Information .  Each of Parent and Match, on behalf of itself and each member of the Parent Group and the Match Group, respectively, agrees to provide the other party (or its designee) with such cooperation or information as such other party (or its designee) reasonably shall request in connection with the determination of any payment or any calculations described in this Agreement, the preparation or filing of any Tax Return or claim for Refund, or the conduct of any Proceeding.  Such cooperation and information shall include, without limitation, upon reasonable notice (i) promptly forwarding copies of appropriate notices and forms or other communications (including, without limitation, information document requests, revenue agents’ reports and similar reports, notices of proposed adjustments and notices of deficiency) received from or sent to any Tax Authority or any other administrative, judicial or governmental authority, (ii) providing copies of all relevant Tax Returns, together with accompanying schedules and related workpapers, documents relating to rulings or other determinations by any Tax Authority, and such other records concerning the ownership and tax basis of property, or other relevant information, (iii) the provision of such additional information and explanations of documents and information provided under this Agreement (including statements, certificates, forms, returns and schedules delivered by either party) as shall be reasonably requested by Parent (or its designee) or Match (or its designee), as the case may be, (iv) the execution of any document that may be necessary or reasonably helpful

 

20



 

in connection with the filing of a Tax Return, a claim for a Refund, or in connection with any Proceeding, including such waivers, consents or powers of attorney as may be necessary for Parent or Match, as the case may be, to exercise its rights under this Agreement, and (v) the use of Parent’s or Match’s, as the case may be, reasonable efforts to obtain any documentation from a governmental authority or a third party that may be necessary or reasonably helpful in connection with any of the foregoing.  It is expressly the intention of the parties to this Agreement to take all actions that shall be necessary to establish Parent as the sole agent for Tax purposes of each member of the Match Group with respect to all Combined Returns.  Upon reasonable notice, each of Parent and Match shall make its, or shall cause the members of the Parent Group or the Match Group, as applicable, to make their, employees and facilities available on a mutually convenient basis to provide explanation of any documents or information provided hereunder.  Any information obtained under this Section 8 shall be kept confidential, except as otherwise reasonably may be necessary in connection with the filing of Tax Returns or claims for Refund or in conducting any Proceeding.

 

(b)                                  Retention of Records .  Each of Parent and Match agrees to retain all Tax Returns, related schedules and workpapers, and all material records and other documents as required under Section 6001 of the Code and the regulations promulgated thereunder (and any similar provision of State, local, or foreign law) existing on the date hereof or created in respect of (i) any taxable period that ends on or before or includes the Distribution Date or (ii) any taxable period that may be subject to a claim hereunder until the later of (A) the expiration of the statute of limitations (including extensions) for the taxable periods to which such Tax Returns and other documents relate and (B) the Final Determination of any payments that may be required in respect of such taxable periods under this Agreement.  From and after the end of the period described in the preceding sentence of this Section 8(b), if a member of the Parent Group or the Match Group wishes to dispose of any such records and documents, then Parent or Match, as the case may be, shall provide written notice thereof to the other party and shall provide the other party the opportunity to take possession of any such records and documents within 90 days after such notice is delivered; provided , however , that if such other party does not, within such 90-day period, confirm its intention to take possession of such records and documents, Parent or Match, as the case may be, may destroy or otherwise dispose of such records and documents.

 

(c)                                   Remedies .  Each of Parent and Match hereby acknowledges and agrees that (i) the failure of any member of the Parent Group or the Match Group, as the case may be, to comply with the provisions of this Section 8 may result in substantial harm to the Parent Group or the Match Group, as the case may be, including the inability to determine or appropriately substantiate a Tax Liability (or a position in respect thereof) for which the Parent Group (or a member thereof) or the Match Group (or a member thereof), as applicable, would be responsible under this Agreement or appropriately defend against an adjustment thereto by a Tax Authority, (ii) the remedies available to the Parent Group for the breach by a member of the Match Group of its obligations under this Section 8 shall include (without limitation) the indemnification by Match of the Parent Group for any Tax Liabilities incurred or any Tax Benefit lost or postponed by reason of such breach and the forfeiture by the Match Group of any related rights to indemnification by Parent and (iii) the remedies available to the Match Group for the breach by a member of the Parent Group of its obligations under this Section 8 shall include (without limitation) the indemnification by Parent of the Match Group for any Tax Liabilities incurred or

 

21



 

any Tax Benefit lost or postponed by reason of such breach and the forfeiture by the Parent Group of any related rights to indemnification by Match.

 

(d)                                  Reliance by Parent .  If any member of the Match Group supplies information to a member of the Parent Group in connection with a Tax Liability and an officer of a member of the Parent Group signs a statement or other document under penalties of perjury in reliance upon the accuracy of such information, then upon the written request of such member of the Parent Group identifying the information being so relied upon, the chief financial officer of Match (or his or her designee) shall certify in writing that to his knowledge (based upon consultation with appropriate employees) the information so supplied is accurate and complete.  Match agrees to indemnify and hold harmless each member of the Parent Group and its directors, officers and employees from and against any fine, penalty, or other cost or expense of any kind attributable to a member of the Match Group having supplied, pursuant to this Section 8, a member of the Parent Group with inaccurate or incomplete information in connection with a Tax Liability.

 

(e)                                   Reliance by Match .  If any member of the Parent Group supplies information to a member of the Match Group in connection with a Tax Liability and an officer of a member of the Match Group signs a statement or other document under penalties of perjury in reliance upon the accuracy of such information, then upon the written request of such member of the Match Group identifying the information being so relied upon, the chief financial officer of Parent (or his or her designee) shall certify in writing that to his knowledge (based upon consultation with appropriate employees) the information so supplied is accurate and complete. Parent agrees to indemnify and hold harmless each member of the Match Group and its directors, officers and employees from and against any fine, penalty, or other cost or expense of any kind attributable to a member of the Parent Group having supplied, pursuant to this Section 8, a member of the Match Group with inaccurate or incomplete information in connection with a Tax Liability.

 

9.                                       Resolution of Disputes .  The provisions of Article 7 of the Transaction Agreement (Dispute Resolution) shall apply to any dispute arising in connection with this Agreement; provided , however , that in the case of disputes arising under this Agreement, Parent and Match 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 12, 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.

 

22



 

(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 Prime Rate.

 

(c)                                   Characterization of Payments .  Except to the extent otherwise required by applicable Law or pursuant to a Final Determination, the parties hereto agree to treat, and to cause their respective Affiliates to treat, (i) any payment required by this Agreement or by the Transaction Agreement (other than payments of interest), as either a contribution by Parent to Match or a distribution by Match to Parent, as the case may be (which contribution or distribution shall, in the case of any payment made following the Distribution Date, be treated as occurring immediately prior to the Distribution) 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; provided that in the event such treatment is not permissible (or that an Indemnified Party nevertheless suffers a Tax detriment as a result of such payment), the 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.                                Treatment of Certain Equity Awards .

 

(a)                                  Deductions .  Any compensation deductions arising in respect of equity awards held by Match Employees or Former Match Employees (as such terms are defined in the EMA) (i) with respect to which Match is required to reimburse Parent for IAC Award Costs or Subsidiary Award Costs (as such terms are defined in the EMA) or (ii) that are denominated in or determined by reference to the value of Match Capital Stock shall be allocated to the Match Group.

 

(b)                                  Withholding and Reporting .  Match shall be responsible for tax reporting and withholding and the employer portion of any payroll taxes in respect of equity awards held by Match Employees or Former Match Employees (as such terms are defined in the EMA).

 

12.                                Effective Date; Termination of Prior Intercompany Tax Allocation Arrangements .  This Agreement shall be effective as of the date following the IPO.  As of such date, (i) all prior intercompany Tax allocation agreements or arrangements solely between or among Parent and/or any of its Subsidiaries, on the one hand, and Match and/or any of its Subsidiaries, on the other hand (including the Tax Sharing Agreement dated as of July 1, 2014 by and between Parent and Tinder) shall be terminated, and (ii) any amounts due under such agreements with respect to taxable periods (or portions thereof) ending on or before the date of the IPO shall be settled as promptly as practicable following the date of the IPO (and in any event no later than the due date for filing any Combined Returns for such taxable periods).  Upon such termination and settlement, no further payments by or to Parent or any of its Subsidiaries or by or to Match or any of its Subsidiaries, with respect to such agreements, shall be made and all other rights and obligations pursuant to such agreements shall cease at such time.  For the avoidance of doubt, in the event of a Final Determination with respect to any Combined Return or the filing by Parent or any member of the Parent Group of any amended Combined Return, in each case following the termination of any such prior Tax allocation agreements, any Tax

 

23



 

sharing payments with respect to such Final Determination or amended Combined Return shall be determined solely pursuant to Section 2(c)(iv) hereof.

 

13.                                Notices .  All notices or other communications under this Agreement shall be in writing and shall be deemed to be duly given when delivered in person or successfully transmitted by facsimile, addressed as follows:

 

(a)                                  if to IAC:

 

IAC/InterActiveCorp

555 West 18th Street

New York, NY 10011

Attention:  General Counsel
Fax:  212-632-9551

 

with a copy to:

 

Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
Attention:  Andrew J. Nussbaum, Esq.
                                                    Ante Vucic, Esq.
Fax:  212-403-2000

 

(b)                                  if to Match:

 

Match Group, Inc.

8300 Douglas Avenue

Suite 800

Dallas, TX 75225

Attention:  Chief Financial Officer
Fax:  917-793-4497

 

with a copy (prior to the Effective Time) to:

 

Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
Attention:  Andrew J. Nussbaum, Esq.
                                                    Ante Vucic, Esq.
Fax:  212-403-2000

 

24



 

14.                                Designation of Affiliate .  Each of Parent and Match may assign any of its rights or obligations under this Agreement to any member of the Parent Group or the Match Group, respectively, as it shall designate; provided , however , that no such assignment shall relieve Parent or Match, respectively, of any obligation hereunder, including any obligation to make a payment hereunder to Match or Parent, respectively, to the extent such designee fails to make such payment.

 

15.                                Injunctions .  The parties acknowledge that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with its specific terms or were otherwise breached.  The parties hereto shall be entitled to an injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce specifically the terms and provisions hereof in any court having jurisdiction, such remedy being in addition to any other remedy to which they may be entitled at law or in equity.

 

16.                                Miscellaneous .  Except to the extent otherwise provided in this Agreement, this Agreement shall be subject to the provisions of Article 10 (Miscellaneous) of the Transaction Agreement to the extent set forth therein.

 

[Remainder of page intentionally left blank]

 

25



 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives.

 

 

IAC/INTERACTIVECORP

 

 

 

 

 

By:

/s/ Gregg Winiarski

 

 

Name: Gregg Winiarski

 

 

Title: Executive Vice President, General Counsel

 

 

 

 

 

 

 

 

 

MATCH GROUP, INC.

 

 

 

 

 

 

 

By:

/s/ Joanne Hawkins

 

 

Name: Joanne Hawkins

 

 

Title: Vice President and Assistant Secretary

 

26


Exhibit 10.4

 

SERVICES AGREEMENT

 

by and between

 

IAC/INTERACTIVECORP

 

and

 

MATCH GROUP, INC.

 

Dated as of

 

November 24, 2015

 



 

SERVICES AGREEMENT

 

This Services Agreement, dated as of November 24, 2015 (this “ Services Agreement ”), is entered into by and between IAC/InterActiveCorp, a Delaware corporation (“ IAC ”), and Match Group, Inc., a Delaware corporation (“ Match ” and, together with IAC, the “ Parties ” and each a “ Party ”).

 

WHEREAS, IAC and Match entered into a Master Transaction Agreement, dated as of November 24, 2015 (the “ Transaction Agreement ”) and other Ancillary Agreements related to the initial public offering of Match’s common stock (the “ Transaction ”);

 

WHEREAS, in connection with such Transaction, (a) Match desires to procure certain services from IAC, and IAC is willing to provide such services, during the term hereof, on the terms and conditions set forth in this Services Agreement; and (b) IAC desires to procure certain services from Match, and Match is willing to provide such services to IAC, during the term hereof, 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.                      General .   All terms used herein and not defined herein shall have the meanings assigned to them in the Transaction 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 agrees with Match, that it shall provide, or shall cause its Subsidiaries and Affiliates (other than Match and its Subsidiaries) and its or 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 Match (or a member of the Match Group designated by Match) the services (“ IAC Services ”) listed on the Schedule of Services attached hereto (the “ Services Schedule ”) as being performed by 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 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 Match 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, Match agrees with IAC that it shall provide, or shall cause its Subsidiaries and Affiliates (other than IAC and its non-Match Group Subsidiaries) and their respective employees designated by it (such designated Subsidiaries, Affiliates and employees, together with Match, being herein collectively referred to as the “ Match Service Providers ” and together with the IAC Service Providers, the “ Service Providers” ) to provide, to IAC (or a member of the IAC Group designated by IAC), as applicable, the services (“ Match Services ”) listed on the Services Schedule as being performed by Match.  Subject to Section 3.01 , any decisions as to which of the Match Service Providers (including the decisions to use third parties) shall provide the Match Services shall be made by Match in its sole discretion, except to the extent specified in the Services Schedule.  Each Match Service shall be provided in exchange for the consideration set forth with respect to such Service on the Services Schedule or as Match and IAC may otherwise agree in writing.  Each Match Service shall be provided and accepted in accordance with the terms, limitations and conditions set forth herein and on the Services Schedule.

 

(c)                                   As used in this Services Agreement, the term “ Receiving Party ” shall mean the Party receiving (or the Party whose Subsidiary 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 Receiving 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 Effective Date (as defined in Section 4.01 ), 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

 

2



 

frequency, as applicable) as the Services have been used immediately prior to the 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.

 

3.02.                      Cooperation .  Each Receiving Party and Party providing Services to it hereunder 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 such Party to perform its obligations to such Receiving Party 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 applicable to any Service being provided by a Service Provider, each Party may request any of the other Parties (i) to provide additional or different services which such other Party is not expressly obligated to provide under this Services Agreement if such services are of the type and scope provided by such providing Party within IAC 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 applicable Party shall in good faith negotiate the terms of a supplement to the Services Schedule which will describe in detail the service, project scope, term, price and payment terms to be charged for the Additional Services.  Once agreed to in writing, the supplement to the Services Schedule shall be deemed part of this Services Agreement as of such date and the Additional Services shall be deemed “Services” provided by such Service Provider to such Receiving Party hereunder, in each case subject to the terms and conditions of this Agreement.

 

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3.04.                      Payments .  Except as set forth on the Services Schedule, statements will be delivered to each applicable Receiving Party within ten (10) business days after the end of each month, and each such statement shall set forth a brief description of such Services, the allocation of personnel costs related to providing such Services and the amounts charged therefor, and, except as the applicable providing Party and Receiving Party may agree or as set forth on the Services Schedule, such amounts shall be due and payable by the Receiving Party within thirty (30) days after the date of such statement.  Receiving Party shall have the right to dispute any items set forth in an invoice and the parties agree to work in good faith to resolve any such disputes.  In the event that the parties are not able to resolve a dispute, IAC’s resolution of any such dispute shall be final and binding unless such resolution is unreasonable or clearly erroneous, it being understood and agreed that reasonableness shall be assessed without regard to whether such resolution happens to be in IAC’s self-interest. Statements not paid within such 30-day period shall be subject to late charges, calculated at an interest rate per annum equal to the Prime Rate plus 2% (or the maximum legal rate, whichever is lower), and calculated for the actual number of days elapsed, accrued from the date on which such payment was due up to the date of the actual receipt of payment.  Payments shall be made by wire transfer to an account designated in writing from time to time by the applicable Service Provider, or as otherwise agreed by the Service Provider and Receiving Party.

 

3.05.                      Increases in Costs .  The Parties understand and agree that the costs set forth on the Services Schedule are based on the actual cost to the Service Provider of the Services provided to the Receiving Party.  If the actual cost to the Service Provider of a Service increases, the Service Provider may, in good faith, increase the cost for such Service with 30 days’ prior written notice.

 

3.06.                      Disclaimer of Warranty .  EXCEPT AS EXPRESSLY SET FORTH IN THIS SERVICES AGREEMENT, THE SERVICES TO BE PURCHASED UNDER THIS SERVICES AGREEMENT ARE FURNISHED AS IS, WHERE IS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.  In the event that the provision of any Service for the account of a Receiving Party by a Service Provider conflicts with such Service Provider’s provision of such Service for its own account or the account of other Receiving Parties, priority for the provision of such Service shall be allocated in an equitable manner on an aggregate basis, and in a manner consistent with the Receiving Party’s level of use of such Service prior to the Effective Date (or as described in the applicable entry on the Services Schedule).

 

3.07.                      Taxes .

 

(a)                                  The amounts set forth on the Services Schedule with respect to each Service do not include any sales, use, value added, goods and services or similar taxes (collectively, and together with any interest, penalties or additions to tax imposed with respect thereto, “ Sales Taxes ”).  In addition to the amounts required to be paid as set forth on the Services Schedule or otherwise pursuant to this Services Agreement, the Receiving Party shall pay and be responsible for, and in the event paid to a taxing authority by the Service Provider shall promptly reimburse the Service Provider for, any Sales Taxes imposed with respect to the provision of Services to the Receiving Party hereunder or any payment of fees therefor; provided , that the Receiving Party shall not be liable for any interest, penalties or other charges attributable to the Service

 

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Provider’s improper filing relating to Sales Taxes or late payment or failure to remit Sales Taxes to the relevant taxing authority; provided , further that the Receiving Party shall not be obligated to pay such Sales Taxes if and to the extent that the Receiving Party has provided the Service Provider with any valid exemption certificates or other applicable valid documentation that would eliminate or reduce such Sales Taxes.

 

(b)                                  The Parties acknowledge that the Service Provider and the Receiving Party shall each pay and be responsible for their own personal property taxes and taxes based on their own income, receipts, capital, profits or assets.

 

(c)                                   Payments for Services or any other amounts payable under this Services Agreement shall be made without any deduction or withholding in respect of taxes except to the extent such deduction or withholding is required under applicable Law.  To the extent such deduction or withholding is so required with respect to the making of any payment hereunder, the person making such payment shall deduct or withhold amounts so required to be deducted or withheld, and shall promptly remit any such deducted or withheld amounts to the appropriate taxing authority and such deducted or withheld amounts shall be treated for all purposes of this Services Agreement as having been paid to or on behalf of the payee.

 

3.08.                      Use of Services .  Each party, in its capacity as a Receiving Party agrees with each applicable providing Party that it shall not, and shall cause its Affiliates not to, resell any Services to any person whatsoever or permit the use of the Services by any person other than in connection with the conduct of such Receiving Party’s operations as conducted immediately prior to the Effective Date.

 

ARTICLE IV

 

Term of Services

 

4.01.                      Term .  Subject to Section 4.03 , the provision of Services hereunder shall commence as of the Effective Time (the time of commencement of the provision of such Services being referred to as the “ Effective Date ”) and continue for one year thereafter; provided, that this Agreement shall be automatically renewed for additional one year periods (each, an “ Extension Term ”) for so long as IAC holds a majority of the combined voting power of all Match Voting Stock unless all of the Services provide hereunder have been terminated in accordance with this Section 4.01 .  Notwithstanding the foregoing, subject to the applicable entry on the Services Schedule, any Service may be cancelled or reduced in amount or any portion thereof by the Receiving Party or, in any Extension Term, by the Service Provider, in each case upon ninety (90) days written notice thereof or, if the Service Provider gives notice of an increase the cost for such Service pursuant to Section 3.05 , thirty (30) days written notice (or, in either case, such other notice period if one is set forth for such Service in the applicable entry on the Services Schedule).  The foregoing notwithstanding and subject to Section 7.01 , (i) a Service Provider may immediately terminate any individual Service provided to a Receiving Party in the event that the Receiving Party fails to make payments for such Service under Section 3.02 and has not cured such failure within thirty (30) days of written notice of such failure from the applicable Service Provider, and (ii) upon ninety (90) days written notice, the Service Provider

 

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may terminate any Service provided to a Receiving Party at such time as the Service Provider no longer provides the same Service to itself for its own account.

 

4.02.                      Extension of Services .  In the event a Receiving Party requests an extension of the term applicable to the provision of Services, such request shall be considered in good faith by the applicable Service Provider. Any terms, conditions or costs or fees to be paid by the Receiving Party for Services provided during an extended term will be on terms mutually acceptable to such Service Provider and Receiving Party.  For the avoidance of doubt, under no circumstances shall a Service Provider be required to extend the term of provision of any Service if (i) the Service Provider does not, in its reasonable judgment, have adequate resources to continue providing such Services, (ii) the extension of the term would interfere with the operation of the Service Provider’s business or (iii) the extension would require capital expenditure on the part of the Service Provider or otherwise require the Service Provider to renew or extend any Contract with any third party.

 

4.03.                      Distribution .  In the event that IAC distributes its interest in Match to IAC’s shareholders, whether by dividend, recapitalization or other extraordinary transaction (a “Distribution”), then, nothwithstanding anything to the contrary herein, the provision of Services hereunder shall continue from the effective date of the Distribution until the first anniversary thereof, unless such Service is earlier terminated in accordance with Section 4.01 .   Each Party agrees with each other Party providing Services to it hereunder to use its reasonable efforts following a Distribution to reduce or eliminate its dependency on such Services as soon as is reasonably practicable; provided that a breach of this sentence shall not affect a Service Provider’s obligation to provide any Service through the term applicable to such Service.

 

ARTICLE V

 

Force Majeure

 

5.01.                      The Service Providers shall not be liable for any expense, loss or damage whatsoever arising out of any interruption of Service or delay or failure to perform under this Services Agreement that is due to acts of God, acts of a public enemy, acts of terrorism, acts of a nation or any state, territory, province or other political division thereof, changes in applicable law, fires, hurricanes, floods, epidemics, riots, theft, quarantine restrictions, freight embargoes or other similar causes beyond the reasonable control of the Service Providers.  In any such event, the applicable Service Provider’s obligations hereunder shall be postponed for such time as its performance is suspended or delayed on account thereof.  Each Service Provider will promptly notify the recipient of the Service, either orally or in writing, upon learning of the occurrence of such event of force majeure.  Upon the cessation of the force majeure event, such Service Provider will use commercially reasonable efforts to resume, or to cause any other relevant Service Provider to resume, its performance with the least practicable delay ( provided that, at the election of the applicable Receiving Party, the applicable term for such suspended Service shall be extended by the length of the force majeure event).

 

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ARTICLE VI

 

Liabilities

 

6.01.                      Consequential and Other Damages .  None of the Service Providers shall be liable to any Receiving Party with respect to this Services Agreement, whether in contract, tort (including negligence and strict liability) or otherwise, for any special, indirect, incidental or consequential damages whatsoever (except, in each case, to the extent any amount is paid to third parties by such Receiving Party or its Affiliates) which in any way arise out of, relate to or are a consequence of, the performance or nonperformance by it hereunder or the provision of, or failure to provide, any Service hereunder, including with respect to loss of profits, business interruptions or claims of customers.

 

6.02.                      Limitation of Liability .  Subject to Section 6.03 hereof, the liability of any Service Provider with respect to this Services Agreement to any Receiving Party or in respect of any Services provided to such Receiving Party or any act or failure to act in connection herewith (including, but not limited to, the performance or breach hereof), or from the sale, delivery, provision or use of any Service provided under or covered by this Services Agreement, whether in contract, tort (including negligence and strict liability) or otherwise, shall be limited to actions or omissions resulting from intentional breach of this Services Agreement or gross negligence, and, in any event, such liability shall not exceed the fees previously paid to such Service Provider by such Receiving Party during the term of the applicable Service giving rise thereto.

 

6.03.                      Obligation to Re-perform .  In the event of any breach of this Services Agreement by any Service Provider resulting from any error or defect in the performance of any Service (which breach such Service Provider can reasonably be expected to cure by re-performance in a commercially reasonable manner), the Service Provider shall use its reasonable commercial efforts to correct in all material respects such error, defect or breach or re-perform in all material respects such Service upon receipt of the written request of the applicable Receiving Party.

 

6.04.                      Indemnity .  Except as otherwise provided in this Service Agreement (including the limitation of liability provisions in this Article VI ), each Party shall indemnify, defend and hold harmless each other Party from and against any Liability arising out of the intentional breach hereunder or gross negligence of the Indemnifying Party or its Affiliates, employees, agents, or contractors (including with respect to the performance or nonperformance of any Service hereunder). The procedures set forth in Sections 6.04 and 6.05 of the Transaction Agreement shall apply to any claim for indemnification hereunder.

 

ARTICLE VII

 

Effectiveness; Certain Deemed References; Termination

 

7.01.                      Termination .  Notwithstanding anything herein to the contrary, with respect to the Parties, the rights and obligations of each such Party in respect of such other Party under this Services Agreement shall terminate, and the obligation of the applicable Service Provider to provide or cause to be provided any applicable Service shall cease, on the earliest to occur of (i) the last date indicated for the termination of any Service provided by one such Party to the other such Party on the Services Schedule, as the case may be, (ii) the date on which the provision of all Services by either such Party to the other such Party has been cancelled pursuant to Article IV hereof or (iii) the date on which this Services Agreement, to the extent of the rights and obligations of such pair of Parties to each other, is terminated by either such

 

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Party, as the case may be, in accordance with the terms of Section 7.02 hereof; provided that, in each case, no such termination shall relieve any Party of any liability for any breach of any provision of this Services Agreement prior to the date of such termination.

 

7.02.                      Breach of Services Agreement; Dispute Resolution .  Subject to Article VI hereof, and without limiting a Party’s obligations under Section 4.01 , if a Party shall cause or suffer to exist any material breach of any of its obligations to any other Party (the “ Nonbreaching Party ”) under this Services Agreement, including any failure to make a payment within thirty (30) days after receipt of the statement describing the Services provided for pursuant to Section 3.04 with respect to more than one Service provided hereunder, and such breaching Party does not cure such default in all material respects within thirty (30) days after receiving written notice thereof from the Nonbreaching Party, the Nonbreaching Party shall have the right to terminate this Services Agreement to the extent of the rights and obligations of such Nonbreaching Party and breaching Party to each other hereunder immediately thereafter. In the event a dispute arises between two or more Parties regarding the terms of this Services Agreement, such dispute shall be governed by Article 8 of the Transaction Agreement.

 

7.03.                      Sums Due .  In addition to any other payments required pursuant to this Services Agreement, in the event of a termination of this Services Agreement with respect to the rights and obligations of a Service Provider and a Receiving Party to each other, such Service Provider shall be entitled to the immediate payment of, and such Receiving Party shall within three (3) business days, pay to such Service Provider, all accrued amounts for Services, Sales Taxes and other amounts due from such Receiving Party to such Service Provider under this Services Agreement as of the date of termination.

 

7.04.                      Effect of Termination Section 2.02 hereof and Articles V , VI , VII and VIII hereof shall survive any termination or partial termination of this Services Agreement.

 

ARTICLE VIII

 

Miscellaneous

 

8.01.                      Incorporation of Transaction Agreement Provisions .  The provisions of Articles 7 and 10 of the Transaction Agreement are hereby incorporated herein by reference, and unless otherwise expressly specified herein, such provisions shall apply as if fully set forth herein.

 

8.02.                      Ownership of Work Product .  Subject to the Transaction Agreement, (i) each Service Provider acknowledges and agrees that it will acquire no right, title or interest (including any license rights or rights of use) to any work product resulting from the provision of Services hereunder for the Receiving Party’s exclusive use and such work product shall remain the exclusive property of the Receiving Party and (ii) each Receiving Party acknowledges and agrees that it will acquire no right, title or interest (other than a non-exclusive, worldwide right of use) to any work product resulting from the provision of Services hereunder that is not for the Receiving Party’s exclusive use and such work product shall remain the exclusive property, subject to license, of the Service Provider.

 

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IN WITNESS WHEREOF, the Parties have caused this Services Agreement to be executed by their duly authorized representatives.

 

 

 

IAC/INTERACTIVECORP

 

 

 

 

 

 

 

 

 

By:

 

/s/ Gregg Winiarski

 

 

Name:

Gregg Winiarski

 

 

Title:

Executive Vice President, General Counsel

 

 

 

MATCH GROUP, INC.

 

 

 

 

 

 

 

 

 

By:

 

/s/ Joanne Hawkins

 

 

Name:

Joanne Hawkins

 

 

Title:

Vice President and Assistant Secretary

 

Services Schedule – 1

 


 

Exhibit 10.5

 

MATCH GROUP, INC.
2015 STOCK AND ANNUAL INCENTIVE PLAN

 

SECTION 1.                          PURPOSE; DEFINITIONS

 

The purposes of this Plan are to give the Company a competitive advantage in attracting, retaining and motivating officers, employees, directors and/or consultants and to provide the Company and its Subsidiaries and Affiliates with a stock and incentive plan providing incentives directly linked to stockholder value.  Certain terms used herein have definitions given to them in the first place in which they are used.  This Plan is intended to replace the Amended and Restated 2009 Match.com, Inc. Equity Incentive Program and the Amended and Restated Match Group, Inc. 2014 Incentive Plan (together, the “ Prior Plans ”), which Prior Plans shall be automatically terminated and replaced and superseded by this Plan upon the consummation of the IPO, except that any awards granted under the Prior Plans (“ Prior Plan Awards ”) shall remain in effect under this Plan pursuant to their terms.  In addition, for purposes of this Plan, the following terms are defined as set forth below:

 

(a)                                  Adjusted Award ” means any equity-based award granted by IAC that is converted into an equity-based award relating to the Company upon the occurrence of a spin-off of the Company from IAC.

 

(b)                                  Affiliate ” means a corporation or other entity controlled by, controlling or under common control with, the Company.

 

(c)                                   Applicable Exchange ” means the NASDAQ or such other securities exchange as may at the applicable time be the principal market for the Common Stock.

 

(d)                                  Award ” means an Option, Stock Appreciation Right, Restricted Stock, Restricted Stock Unit, other stock-based award or Cash-Based Award granted or assumed pursuant to the terms of this Plan or the Prior Plans, including Prior Plan Awards, Subsidiary Equity Awards and Adjusted Awards.

 

(e)                                   Award Agreement ” means a written or electronic document or agreement setting forth the terms and conditions of a specific Award.

 

(f)                                    Board ” means the Board of Directors of the Company.

 

(g)                                   Cash-Based Award ” means an Award denominated in a dollar amount.

 

(h)                                  Cause ” means, unless otherwise provided in an Award Agreement, (i) “Cause” as defined in any Individual Agreement to which the applicable Participant is a party, or (ii) if there is no such Individual Agreement or if it does not define Cause:  (A) the willful or gross neglect by a Participant of his employment duties; (B) the plea of guilty or nolo contendere to, or conviction for, the commission of a felony offense by a Participant; (C) a material breach by a Participant of a fiduciary duty owed to the Company or any of its subsidiaries; (D) a material breach by a Participant of any nondisclosure, non-solicitation or non-competition obligation owed to the Company or any of its Affiliates; or (E) before a Change in Control, such other events as shall be determined by the Committee and set forth in a Participant’s Award

 



 

Agreement.  Notwithstanding the general rule of Section 2(c), following a Change in Control, any determination by the Committee as to whether “Cause” exists shall be subject to de novo review.

 

(i)                                      Change in Control ” has the meaning set forth in Section 10(a).

 

(j)                                     Code ” means the Internal Revenue Code of 1986, as amended from time to time, and any successor thereto, the Treasury Regulations thereunder and other relevant interpretive guidance issued by the Internal Revenue Service or the Treasury Department.  Reference to any specific section of the Code shall be deemed to include such regulations and guidance, as well as any successor provision of the Code.

 

(k)                                  Commission ” means the Securities and Exchange Commission or any successor agency.

 

(l)                                      Committee ” has the meaning set forth in Section 2(a).

 

(m)                              Common Stock ” means common stock, par value $0.001 per share, of the Company.

 

(n)                                  Company ” means Match Group, Inc., a Delaware corporation, or its successor.

 

(o)                                  Disability ” means (i) “Disability” as defined in any Individual Agreement to which the Participant is a party, or (ii) if there is no such Individual Agreement or it does not define “Disability,” (A) permanent and total disability as determined under the Company’s long-term disability plan applicable to the Participant, or (B) if there is no such plan applicable to the Participant or the Committee determines otherwise in an applicable Award Agreement, “Disability” as determined by the Committee.  Notwithstanding the above, with respect to an Incentive Stock Option, Disability shall mean Permanent and Total Disability as defined in Section 22(e)(3) of the Code and, with respect to all Awards, to the extent required by Section 409A of the Code, Disability shall mean “disability” within the meaning of Section 409A of the Code.

 

(p)                                  Disaffiliation ” means a Subsidiary’s or Affiliate’s ceasing to be a Subsidiary or Affiliate for any reason (including, without limitation, as a result of a public offering, or a spinoff or sale by the Company, of the stock of the Subsidiary or Affiliate) or a sale of a division of the Company and its Affiliates.

 

(q)                                  EBITA ” means for any period, operating profit (loss) plus, if applicable, (i) amortization and impairment of intangibles, (ii) goodwill impairment, (iii) non-cash compensation expense, (iv) restructuring charges, (v) non cash write-downs of assets, (vi) charges relating to disposal of lines of business, (vii) litigation settlement amounts and (viii) costs incurred for proposed and completed acquisitions.

 

(r)                                     EBITDA ” means for any period, operating profit (loss) plus, if applicable, (i) depreciation, (ii) amortization and impairment of intangibles, (iii) goodwill impairment, (iv) non-cash compensation expense, (v) restructuring charges, (vi) non cash write-downs of

 

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assets, (vii) charges relating to disposal of lines of business, (viii) litigation settlement amounts and (ix) costs incurred for proposed and completed acquisitions.

 

(s)                                    Eligible Individuals ” means directors, officers, employees and consultants of the Company or any of its Subsidiaries or Affiliates, and prospective directors, officers, employees and consultants who have accepted offers of employment or consultancy from the Company or its Subsidiaries or Affiliates.

 

(t)                                     Exchange Act ” means the Securities Exchange Act of 1934, as amended from time to time, and any successor thereto.

 

(u)                                  Fair Market Value ” means, unless otherwise determined by the Committee, the closing price of a share of Common Stock on the Applicable Exchange on the date of measurement, or if Shares were not traded on the Applicable Exchange on such measurement date, then on the next preceding date on which Shares were traded, all as reported by such source as the Committee may select. If the Common Stock is not listed on a national securities exchange, Fair Market Value shall be determined by the Committee in its good faith discretion, provided that such determination shall be made in a manner consistent with any applicable requirements of Section 409A of the Code.

 

(v)                                  Free-Standing SAR ” has the meaning set forth in Section 5(b).

 

(w)                                Grant Date ” means (i) the date on which the Committee by resolution selects an Eligible Individual to receive a grant of an Award and determines the number of Shares to be subject to such Award or the formula for earning a number of shares or cash amount, (ii) such later date as the Committee shall provide in such resolution, (iii) the initial date on which an a Prior Plan Award was granted or (iv) the initial date on which an Adjusted Award was granted by IAC.

 

(x)                                  IAC ” means IAC/InterActiveCorp, a Delaware corporation.

 

(y)                                  Incentive Stock Option ” means any Option that is designated in the applicable Award Agreement as an “incentive stock option” within the meaning of Section 422 of the Code, and that in fact so qualifies.

 

(z)                                   Individual Agreement ” means an employment, consulting or similar agreement between a Participant and the Company or one of its Subsidiaries or Affiliates.

 

(aa)                           IPO ” means the initial public offering of Shares pursuant to the registration statement on Form S-1 (File No. 333-207472), dated October 16, 2015, as thereafter amended from time to time.

 

(bb)                           NASDAQ ” means the National Association of Securities Dealers Inc. Automated Quotation System.

 

(cc)                             Nonqualified Option ” means any Option that is not an Incentive Stock Option.

 

(dd)                           Option ” means an Award described under Section 5.

 

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(ee)                             Outside Directors ” has the meaning set forth in Section 11(a).

 

(ff)                               Participant ” means an Eligible Individual to whom an Award is or has been granted.

 

(gg)                             Performance Goals ” means the performance goals established by the Committee in connection with the grant of an Award.  In the case of Qualified-Performance Based Awards that are intended to qualify under Section 162(m)(4)(C) of the Code, (i) such goals shall be based on the attainment of one or any combination of the following:   specified levels of earnings per share from continuing operations, net profit after tax, EBITDA, EBITA, gross profit, cash generation, unit volume, market share, sales, asset quality, earnings per share, operating income, revenues, return on assets, return on operating assets, return on equity, profits, total stockholder return (measured in terms of stock price appreciation and/or dividend growth), cost saving levels, marketing- spending efficiency, core non-interest income, change in working capital, return on capital, and/or stock price, with respect to the Company or any Subsidiary, Affiliate, division or department of the Company and (ii) such Performance Goals shall be set by the Committee within the time period prescribed by Section 162(m) of the Code and related regulations.  Such Performance Goals also may be based upon the attaining of specified levels of Company, Subsidiary, Affiliate or divisional performance under one or more of the measures described above relative to the performance of other entities, divisions or subsidiaries.

 

(hh)                           Plan ” means the Match Group, Inc. 2015 Stock and Annual Incentive Plan, as set forth herein and as hereafter amended from time to time.

 

(ii)                                   Qualified Performance-Based Award ” means an Award intended to qualify for the Section 162(m) Exemption, as provided in Section 11.

 

(jj)                                 Restricted Stock ” means an Award described under Section 6.

 

(kk)                           Restricted Stock Units ” means an Award described under Section 7.

 

(ll)                                   Retirement ” means retirement from active employment with the Company, a Subsidiary or Affiliate at or after the Participant’s attainment of age 65.

 

(mm)                   RS Restriction Period ” has the meaning set forth in Section 6(b)(ii).

 

(nn)                           RSU Restriction Period ” has the meaning set forth in Section 7(b)(ii).

 

(oo)                           Section 162(m) Exemption ” means the exemption from the limitation on deductibility imposed by Section 162(m) of the Code that is set forth in Section 162(m)(4)(C) of the Code.

 

(pp)                           Share ” means a share of Common Stock.

 

(qq)                           Stock Appreciation Right ” has the meaning set forth in Section 5(b).

 

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(rr)                                 Subsidiary ” means any corporation, partnership, joint venture, limited liability company or other entity during any period in which at least a 50% voting or profits interest is owned, directly or indirectly, by the Company or any successor to the Company.

 

(ss)                               “Subsidiary Equity Awards” means awards that are outstanding as of November 16, 2016 that correspond to shares of a Subsidiary, which awards may be settled in Shares under this Plan.

 

(tt)                                 Tandem SAR ” has the meaning set forth in Section 5(b).

 

(uu)                           Term ” means the maximum period during which an Option or Stock Appreciation Right may remain outstanding, subject to earlier termination upon Termination of Employment or otherwise, as specified in the applicable Award Agreement.

 

(vv)                           Termination of Employment ” means the termination of the applicable Participant’s employment with, or performance of services for, the Company and any of its Subsidiaries.  Unless otherwise determined by the Committee, if a Participant’s employment with, or membership on a board of directors of, the Company terminates but such Participant continues to provide services to the Company in a non-employee director capacity or as an employee, as applicable, such change in status shall not be deemed a Termination of Employment.  A Participant employed by, or performing services for, a Subsidiary or a division of the Company shall be deemed to incur a Termination of Employment if, as a result of a Disaffiliation, such Subsidiary, or division ceases to be a Subsidiary or division, as the case may be, and the Participant does not immediately thereafter become an employee of (or service provider for), or member of the board of directors of, the Company or another Subsidiary.  Temporary absences from employment because of illness, vacation or leave of absence and transfers among the Company and its Subsidiaries shall not be considered Terminations of Employment.  Notwithstanding the foregoing, with respect to any Award that constitutes “nonqualified deferred compensation” within the meaning of Section 409A of the Code, “Termination of Employment” shall mean a “separation from service” as defined under Section 409A of the Code.

 

SECTION 2.                          ADMINISTRATION

 

(a)                                  Committee .  The Plan shall be administered by the Compensation Committee of the Board or such other committee of the Board as the Board may from time to time designate (the “ Committee ”), which committee shall be composed of not less than two directors, and shall be appointed by and serve at the pleasure of the Board.  The Committee shall have plenary authority to grant Awards pursuant to the terms of the Plan to Eligible Individuals.  Among other things, the Committee shall have the authority, subject to the terms of the Plan:

 

(i)                                      to select the Eligible Individuals to whom Awards may from time to time be granted;

 

(ii)                                   to determine whether and to what extent Incentive Stock Options, Nonqualified Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, other stock-based awards, Cash-Based Awards or any combination thereof, are to be granted hereunder;

 

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(iii)                                to determine the number of Shares to be covered by each Award granted hereunder or the amount of any Cash-Based Award;

 

(iv)                               to determine the terms and conditions of each Award granted hereunder, based on such factors as the Committee shall determine;

 

(v)                                  subject to Section 12, to modify, amend or adjust the terms and conditions of any Award, at any time or from time to time;

 

(vi)                               to adopt, alter and repeal such administrative rules, guidelines and practices governing the Plan as it shall from time to time deem advisable;

 

(vii)                            to accelerate the vesting or lapse of restrictions of any outstanding Award, based in each case on such considerations as the Committee in its sole discretion determines;

 

(viii)                         to interpret the terms and provisions of the Plan and any Award issued under the Plan or any Prior Plan (and any agreement relating thereto);

 

(ix)                               to establish any “blackout” period that the Committee in its sole discretion deems necessary or advisable;

 

(x)                                  to decide all other matters that must be determined in connection with an Award; and

 

(xi)                               to otherwise administer the Plan.

 

(b)                                  Procedures .  (i)  The Committee may act only by a majority of its members then in office, except that the Committee may, except to the extent prohibited by applicable law or the listing standards of the Applicable Exchange and subject to Section 11, allocate all or any portion of its responsibilities and powers to any one or more of its members and may delegate all or any part of its responsibilities and powers to any person or persons selected by it.

 

(ii)                                   Subject to Section 11(c), any authority granted to the Committee may also be exercised by the full Board.  To the extent that any permitted action taken by the Board conflicts with action taken by the Committee, the Board action shall control.

 

(c)                                   Discretion of Committee .  Subject to Section 1(h), any determination made by the Committee or by an appropriately delegated officer pursuant to delegated authority under the provisions of the Plan with respect to any Award shall be made in the sole discretion of the Committee or such delegate at the time of the grant of the Award or, unless in contravention of any express term of the Plan, at any time thereafter.  All decisions made by the Committee or any appropriately delegated officer pursuant to the provisions of the Plan shall be final and binding on all persons, including the Company, Participants, and Eligible Individuals.

 

(d)                                  Award Agreements .  The terms and conditions of each Award (other than any Cash-Based Award), as determined by the Committee, shall be set forth in an Award Agreement, which shall be delivered to the Participant receiving such Award upon, or as promptly as is

 

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reasonably practicable following, the grant of such Award.  The effectiveness of an Award shall not be subject to the Award Agreement’s being signed by the Company and/or the Participant receiving the Award unless specifically so provided in the Award Agreement.  Award Agreements may be amended only in accordance with Section 12 hereof.

 

SECTION 3.                          COMMON STOCK SUBJECT TO PLAN

 

(a)                                  Plan Maximums .  The maximum number of Shares that may be delivered pursuant to Awards under the Plan shall be the sum of (i) the number of Shares that may be issuable upon exercise, vesting or settlement of Prior Plan Awards, Subsidiary Equity Awards and Adjusted Awards and (ii) 20,000,000 Shares.  The maximum number of Shares that may be granted pursuant to Options intended to be Incentive Stock Options shall be 10,000,000 Shares.  Shares subject to an Award under the Plan may be authorized and unissued Shares or may be treasury Shares.

 

(b)                                  Individual Limits .

 

(i)                                      During a calendar year, no single Participant (excluding non-employee directors of the Company) may be granted:

 

(A)        Options or Stock Appreciation Rights covering in excess of 10,000,000 Shares in the aggregate; or

 

(B)        Qualified Performance-Based Awards (other than Options or Stock Appreciation Rights) covering in excess of 10,000,000 Shares in the aggregate.

 

(c)                                   Rules for Calculating Shares Delivered .

 

(i)                                      With respect to Awards other than Prior Plan Awards, Subsidiary Equity Awards and Adjusted Awards, to the extent that any Award is forfeited, terminates, expires or lapses without being exercised, or any Award is settled for cash, the Shares subject to such Award not delivered as a result thereof shall again be available for Awards under the Plan.

 

(ii)                                   With respect to Awards other than Prior Plan Awards, Subsidiary Equity Awards and Adjusted Awards, if the exercise price of any Option and/or the tax withholding obligations relating to any Award are satisfied by delivering Shares to the Company (by either actual delivery or by attestation), only the number of Shares issued net of the Shares delivered or attested to shall be deemed delivered for purposes of the limits set forth in Section 3(a).

 

(iii)                                With respect to Awards other than Prior Plan Awards, Subsidiary Equity Awards and Adjusted Awards, to the extent any Shares subject to an Award are withheld to satisfy the exercise price (in the case of an Option) and/or the tax withholding obligations relating to such Award, such Shares shall not be deemed to have been delivered for purposes of the limits set forth in Section 3(a).

 

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(d)                                  Adjustment Provisions .

 

(i)                                      In the event of a merger, consolidation, acquisition of property or shares, stock rights offering, liquidation, disposition for consideration of the Company’s direct or indirect ownership of a Subsidiary or Affiliate (including by reason of a Disaffiliation), or similar event affecting the Company or any of its Subsidiaries (each, a “ Corporate Transaction ”), the Committee or the Board may in its discretion make such substitutions or adjustments as it deems appropriate and equitable to (A) the aggregate number and kind of Shares or other securities reserved for issuance and delivery under the Plan, (B) the various maximum limitations set forth in Sections 3(a) and 3(b) upon certain types of Awards and upon the grants to individuals of certain types of Awards, (C) the number and kind of Shares or other securities subject to outstanding Awards; and (D) the exercise price of outstanding Options and Stock Appreciation Rights.

 

(ii)                                   In the event of a stock dividend, stock split, reverse stock split, reorganization, share combination, or recapitalization or similar event affecting the capital structure of the Company or a Disaffiliation, separation or spinoff, in each case without consideration, or other extraordinary dividend of cash or other property, the Committee or the Board shall make such substitutions or adjustments as it deems appropriate and equitable to (A) the aggregate number and kind of Shares or other securities reserved for issuance and delivery under the Plan, (B) the various maximum limitations set forth in Sections 3(a) and 3(b) upon certain types of Awards and upon the grants to individuals of certain types of Awards, (C) the number and kind of Shares or other securities subject to outstanding Awards; and (D) the exercise price of outstanding Options and Stock Appreciation Rights.

 

(iii)                                In the case of Corporate Transactions, the adjustments contemplated by clause (i) of this paragraph (d) may include, without limitation, (A) the cancellation of outstanding Awards in exchange for payments of cash, property or a combination thereof having an aggregate value equal to the value of such Awards, as determined by the Committee or the Board in its sole discretion (it being understood that in the case of a Corporate Transaction with respect to which holders of Common Stock receive consideration other than publicly traded equity securities of the ultimate surviving entity, any such determination by the Committee that the value of an Option or Stock Appreciation Right shall for this purpose be deemed to equal the excess, if any, of the value of the consideration being paid for each Share pursuant to such Corporate Transaction over the exercise price of such Option or Stock Appreciation Right shall conclusively be deemed valid); (B) the substitution of other property (including, without limitation, cash or other securities of the Company and securities of entities other than the Company) for the Shares subject to outstanding Awards; and (C) in connection with any Disaffiliation, arranging for the assumption of Awards, or replacement of Awards with new awards based on other property or other securities (including, without limitation, other securities of the Company and securities of entities other than the Company), by the affected Subsidiary, Affiliate, or division or by the entity that controls such Subsidiary, Affiliate, or division following such Disaffiliation (as well as any corresponding adjustments to Awards that remain based upon Company securities).  The Committee may adjust the Performance Goals applicable to any Awards to reflect any Share Change

 

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and any Corporate Transaction and any unusual or non-recurring events and other extraordinary items, impact of charges for restructurings, discontinued operations, and the cumulative effects of accounting or tax changes, each as defined by generally accepted accounting principles or as identified in the Company’s financial statements, notes to the financial statements, management’s discussion and analysis or the Company’s other filings with the Commission.  Any adjustments made pursuant to this Section 3(d) to Awards that are considered “deferred compensation” within the meaning of Section 409A of the Code shall be made in compliance with the requirements of Section 409A of the Code.  Any adjustments made pursuant to this Section 3(d) to Awards that are not considered “deferred compensation” subject to Section 409A of the Code shall be made in such a manner as to ensure that after such adjustment, the Awards either (A) continue not to be subject to Section 409A of the Code or (B) comply with the requirements of Section 409A of the Code.

 

(iv)                               Any adjustment under this Section 3(d) need not be the same for all Participants.

 

SECTION 4.                          ELIGIBILITY

 

Awards may be granted under the Plan to Eligible Individuals and to any individuals who hold IAC Awards that are converted into Awards in the event of a spin-off of the Company from IAC; provided , however , that Incentive Stock Options may be granted only to employees of the Company and its subsidiaries or parent corporation (within the meaning of Section 424(f) of the Code).

 

SECTION 5.                          OPTIONS AND STOCK APPRECIATION RIGHTS

 

With respect to Prior Plan Awards and Adjusted Awards, the provisions below will be applicable only to the extent that they are not inconsistent with the terms of the applicable Prior Plan Award or Adjusted Award.

 

(a)                                  Types of Options .  Options may be of two types:  Incentive Stock Options and Nonqualified Options.  The Award Agreement for an Option shall indicate whether the Option is intended to be an Incentive Stock Option or a Nonqualified Option.

 

(b)                                  Types and Nature of Stock Appreciation Rights .  Stock Appreciation Rights may be “Tandem SARs,” which are granted in conjunction with an Option, or “Free-Standing SARs,” which are not granted in conjunction with an Option.  Upon the exercise of a Stock Appreciation Right, the Participant shall be entitled to receive an amount in cash, Shares, or both, in value equal to the product of (i) the excess of the Fair Market Value of one Share over the exercise price of the applicable Stock Appreciation Right, multiplied by (ii) the number of Shares in respect of which the Stock Appreciation Right has been exercised.  The applicable Award Agreement shall specify whether such payment is to be made in cash or Common Stock or both, or shall reserve to the Committee or the Participant the right to make that determination prior to or upon the exercise of the Stock Appreciation Right.

 

(c)                                   Tandem SARs .  A Tandem SAR may be granted at the Grant Date of the related Option.  A Tandem SAR shall be exercisable only at such time or times and to the extent that the

 

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related Option is exercisable in accordance with the provisions of this Section 5, and shall have the same exercise price as the related Option.  A Tandem SAR shall terminate or be forfeited upon the exercise or forfeiture of the related Option, and the related Option shall terminate or be forfeited upon the exercise or forfeiture of the Tandem SAR.

 

(d)                                  Exercise Price .  The exercise price per Share subject to an Option or Stock Appreciation Right shall be determined by the Committee and set forth in the applicable Award Agreement, and shall not be less than the Fair Market Value of a share of the Common Stock on the applicable Grant Date. In no event may any Option or Stock Appreciation Right granted under this Plan be amended, other than pursuant to Section 3(d), to decrease the exercise price thereof, be cancelled in exchange for cash or other Awards or in conjunction with the grant of any new Option or Stock Appreciation Right with a lower exercise price or otherwise be subject to any action that would be treated under the Applicable Exchange listing standards or for accounting purposes, as a “repricing” of such Option or Stock Appreciation Right, unless such amendment, cancellation, or action is approved by the Company’s stockholders.

 

(e)                                   Term .  The Term of each Option and each Stock Appreciation Right shall be fixed by the Committee, but shall not exceed ten years from the Grant Date.

 

(f)                                    Vesting and Exercisability .  Except as otherwise provided herein, Options and Stock Appreciation Rights shall be exercisable at such time or times and subject to such terms and conditions as shall be determined by the Committee.  If the Committee provides that any Option or Stock Appreciation Right will become exercisable only in installments, the Committee may at any time waive such installment exercise provisions, in whole or in part, based on such factors as the Committee may determine.  In addition, the Committee may at any time accelerate the exercisability of any Option or Stock Appreciation Right.

 

(g)                                   Method of Exercise .  Subject to the provisions of this Section 5, Options and Stock Appreciation Rights may be exercised, in whole or in part, at any time during the applicable Term by giving written notice of exercise to the Company or through the procedures established with the Company’s appointed third-party Plan administrator specifying the number of Shares as to which the Option or Stock Appreciation Right is being exercised; provided , however , that, unless otherwise permitted by the Committee, any such exercise must be with respect to a portion of the applicable Option or Stock Appreciation Right relating to no less than the lesser of the number of Shares then subject to such Option or Stock Appreciation Right or 100 Shares.  In the case of the exercise of an Option, such notice shall be accompanied by payment in full of the aggregate purchase price (which shall equal the product of such number of Shares subject to such Option multiplied by the applicable per Share exercise price) by certified or bank check or such other instrument as the Company may accept.  If approved by the Committee, payment, in full or in part, may also be made as follows:

 

(i)                                      Payment may be made in the form of unrestricted Shares already owned by Participant (by delivery of such Shares or by attestation) of the same class as the Common Stock subject to the Option (based on the Fair Market Value of the Common Stock on the date the Option is exercised); provided , however , that, in the case of an Incentive Stock Option, the right to make a payment in the form of already owned Shares

 

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of the same class as the Common Stock subject to the Option may be authorized only at the time the Option is granted.

 

(ii)                                   To the extent permitted by applicable law, payment may be made by delivering a properly executed exercise notice to the Company, together with a copy of irrevocable instructions to a broker to deliver promptly to the Company the amount of sale proceeds necessary to pay the purchase price, and, if requested, the amount of any federal, state, local or foreign withholding taxes.  To facilitate the foregoing, the Company may, to the extent permitted by applicable law, enter into agreements for coordinated procedures with one or more brokerage firms.  To the extent permitted by applicable law, the Committee may also provide for Company loans to be made for purposes of the exercise of Options.

 

(iii)                                Payment may be made by instructing the Company to withhold a number of Shares having a Fair Market Value (based on the Fair Market Value of the Common Stock on the date the applicable Option is exercised) equal to the product of (A) the exercise price per Share multiplied by (B) the number of Shares in respect of which the Option shall have been exercised.

 

(h)                                  Delivery; Rights of Stockholders .  No Shares shall be delivered pursuant to the exercise of an Option until the exercise price therefor has been fully paid and applicable taxes have been withheld.  The applicable Participant shall have all of the rights of a stockholder of the Company holding the class or series of Common Stock that is subject to the Option or Stock Appreciation Right (including, if applicable, the right to vote the applicable Shares and the right to receive dividends), when the Participant (i) has given written notice of exercise, (ii) if requested, has given the representation described in Section 14(a), and (iii) in the case of an Option, has paid in full for such Shares.

 

(i)                                      Terminations of Employment .  Subject to Section 10(b), a Participant’s Options and Stock Appreciation Rights shall be forfeited upon such Participant’s Termination of Employment, except as set forth below:

 

(i)                                      Upon a Participant’s Termination of Employment by reason of death, any Option or Stock Appreciation Right held by the Participant that was exercisable immediately before the Termination of Employment may be exercised at any time until the earlier of (A) the first anniversary of the date of such death and (B) the expiration of the Term thereof;

 

(ii)                                   Upon a Participant’s Termination of Employment by reason of Disability or Retirement, any Option or Stock Appreciation Right held by the Participant that was exercisable immediately before the Termination of Employment may be exercised at any time until the earlier of (A) the first anniversary of such Termination of Employment and (B) the expiration of the Term thereof;

 

(iii)                                Upon a Participant’s Termination of Employment for Cause, any Option or Stock Appreciation Right held by the Participant shall be forfeited, effective as of such Termination of Employment;

 

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(iv)                               Upon a Participant’s Termination of Employment for any reason other than death, Disability, Retirement or for Cause, any Option or Stock Appreciation Right held by the Participant that was exercisable immediately before the Termination of Employment may be exercised at any time until the earlier of (A) the 90 th  day following such Termination of Employment and (B) expiration of the Term thereof; and

 

(v)                                  Notwithstanding the above provisions of this Section 5(i), if a Participant dies after such Participant’s Termination of Employment but while any Option or Stock Appreciation Right remains exercisable as set forth above, such Option or Stock Appreciation Right may be exercised at any time until the later of (A) the earlier of (1) the first anniversary of the date of such death and (2) expiration of the Term thereof and (B) the last date on which such Option or Stock Appreciation Right would have been exercisable, absent this Section 5(i)(v).

 

Notwithstanding the foregoing, the Committee shall have the power, in its discretion, to apply different rules concerning the consequences of a Termination of Employment; provided , however , that if such rules are less favorable to the Participant than those set forth above, such rules are set forth in the applicable Award Agreement.  If an Incentive Stock Option is exercised after the expiration of the exercise periods that apply for purposes of Section 422 of the Code, such Option will thereafter be treated as a Nonqualified Option.

 

(j)                                     Nontransferability of Options and Stock Appreciation Rights .  No Option or Stock Appreciation Right shall be transferable by a Participant other than (i) by will or by the laws of descent and distribution, or (ii) in the case of a Nonqualified Option or Stock Appreciation Right, pursuant to a qualified domestic relations order or as otherwise expressly permitted by the Committee including, if so permitted, pursuant to a transfer to the Participant’s family members or to a charitable organization, whether directly or indirectly or by means of a trust or partnership or otherwise.  For purposes of this Plan, unless otherwise determined by the Committee, “family member” shall have the meaning given to such term in General Instructions A.1(a)(5) to Form S-8 under the Securities Act of 1933, as amended, and any successor thereto.  A Tandem SAR shall be transferable only with the related Option as permitted by the preceding sentence.  Any Option or Stock Appreciation Right shall be exercisable, subject to the terms of this Plan, only by the applicable Participant, the guardian or legal representative of such Participant, or any person to whom such Option or Stock Appreciation Right is permissibly transferred pursuant to this Section 5(j), it being understood that the term “Participant” includes such guardian, legal representative and other transferee; provided , however , that the term “Termination of Employment” shall continue to refer to the Termination of Employment of the original Participant.

 

SECTION 6.                          RESTRICTED STOCK

 

With respect to Prior Plan Awards and Adjusted Awards, the provisions below will be applicable only to the extent that they are not inconsistent with the terms of the applicable Prior Plan Award or Adjusted Award.

 

(a)                                  Nature of Awards and Certificates .  Shares of Restricted Stock are actual Shares issued to a Participant, and shall be evidenced in such manner as the Committee may deem

 

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appropriate, including book-entry registration or issuance of one or more stock certificates.  Any certificate issued in respect of Shares of Restricted Stock shall be registered in the name of the applicable Participant and shall bear an appropriate legend referring to the terms, conditions, and restrictions applicable to such Award, substantially in the following form:

 

“The transferability of this certificate and the shares of stock represented hereby are subject to the terms and conditions (including forfeiture) of the Match Group, Inc. 2015 Stock and Annual Incentive Plan and an Award Agreement.  Copies of such Plan and Agreement are on file at the offices of Match Group, Inc.”

 

The Committee may require that the certificates evidencing such shares be held in custody by the Company until the restrictions thereon shall have lapsed and that, as a condition of any Award of Restricted Stock, the applicable Participant shall have delivered a stock power, endorsed in blank, relating to the Common Stock covered by such Award.

 

(b)                                  Terms and Conditions .  Shares of Restricted Stock shall be subject to the following terms and conditions:

 

(i)                                      The Committee shall, prior to or at the time of grant, condition the vesting or transferability of an Award of Restricted Stock upon the continued service of the applicable Participant or the attainment of Performance Goals, or the attainment of Performance Goals and the continued service of the applicable Participant. In the event that the Committee conditions the grant or vesting of an Award of Restricted Stock upon the attainment of Performance Goals or the attainment of Performance Goals and the continued service of the applicable Participant, the Committee may, prior to or at the time of grant, designate such an Award as a Qualified Performance-Based Award. The conditions for grant, vesting, or transferability and the other provisions of Restricted Stock Awards (including without limitation any Performance Goals) need not be the same with respect to each Participant.

 

(ii)                                   Subject to the provisions of the Plan and the applicable Award Agreement, so long as a Restricted Stock Award remains subject to the satisfaction of vesting conditions (the “ RS Restriction Period ”), the Participant shall not be permitted to sell, assign, transfer, pledge or otherwise encumber Shares of Restricted Stock.

 

(iii)                                Except as provided in this Section 6 and in the applicable Award Agreement, the applicable Participant shall have, with respect to the Shares of Restricted Stock, all of the rights of a stockholder of the Company holding the class or series of Common Stock that is the subject of the Restricted Stock, including, if applicable, the right to vote the Shares and the right to receive any cash dividends.  If so determined by the Committee in the applicable Award Agreement and subject to Section 14(e), (A) cash dividends on the class or series of Common Stock that is the subject of the Restricted Stock Award shall be automatically reinvested in additional Restricted Stock, held subject to the vesting of the underlying Restricted Stock, and (B) subject to any adjustment pursuant to Section 3(d), dividends payable in Common Stock shall be paid in

 

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the form of Restricted Stock of the same class as the Common Stock with which such dividend was paid, held subject to the vesting of the underlying Restricted Stock.

 

(iv)                               Except as otherwise set forth in the applicable Award Agreement and subject to Section 10(b), upon a Participant’s Termination of Employment for any reason during the RS Restriction Period or before the applicable Performance Goals are satisfied, all Shares of Restricted Stock still subject to restriction shall be forfeited by such Participant; provided , however , that the Committee shall have the discretion to waive, in whole or in part, any or all remaining restrictions with respect to any or all of such Participant’s Shares of Restricted Stock.

 

(v)                                  If and when any applicable Performance Goals are satisfied and the RS Restriction Period expires without a prior forfeiture of the Shares of Restricted Stock for which legended certificates have been issued, unlegended certificates for such Shares shall be delivered to the Participant upon surrender of the legended certificates.

 

SECTION 7.                          RESTRICTED STOCK UNITS

 

With respect to Prior Plan Awards and Adjusted Awards, the provisions below will be applicable only to the extent that they are not inconsistent with the terms of the applicable Prior Plan Award or Adjusted Award.

 

(a)                                  Nature of Awards .  Restricted Stock Units are Awards denominated in Shares that will be settled, subject to the terms and conditions of the Restricted Stock Units, in an amount in cash, Shares or both, based upon the Fair Market Value of a specified number of Shares.

 

(b)                                  Terms and Conditions .  Restricted Stock Units shall be subject to the following terms and conditions:

 

(i)                                      The Committee shall, prior to or at the time of grant, condition the grant, vesting, or transferability of Restricted Stock Units upon the continued service of the applicable Participant or the attainment of Performance Goals, or the attainment of Performance Goals and the continued service of the applicable Participant. In the event that the Committee conditions the grant or vesting of Restricted Stock Units upon the attainment of Performance Goals or the attainment of Performance Goals and the continued service of the applicable Participant, the Committee may, prior to or at the time of grant, designate such Awards as Qualified Performance-Based Awards. The conditions for grant, vesting or transferability and the other provisions of Restricted Stock Units (including without limitation any Performance Goals) need not be the same with respect to each Participant.

 

(ii)                                   Subject to the provisions of the Plan and the applicable Award Agreement, so long as an Award of Restricted Stock Units remains subject to the satisfaction of vesting conditions (the “ RSU Restriction Period ”), the Participant shall not be permitted to sell, assign, transfer, pledge or otherwise encumber Restricted Stock Units.

 

(iii)                                The Award Agreement for Restricted Stock Units shall specify whether, to what extent and on what terms and conditions the applicable Participant shall be entitled

 

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to receive current or delayed payments of cash, Common Stock or other property corresponding to the dividends payable on the Common Stock (subject to Section 14(e) below).

 

(iv)                               Except as otherwise set forth in the applicable Award Agreement, and subject to Section 10(b), upon a Participant’s Termination of Employment for any reason during the RSU Restriction Period or before the applicable Performance Goals are satisfied, all Restricted Stock Units still subject to restriction shall be forfeited by such Participant; provided , however , that the Committee shall have the discretion to waive, in whole or in part, any or all remaining restrictions with respect to any or all of such Participant’s Restricted Stock Units.

 

(v)                                  Except to the extent otherwise provided in the applicable Award Agreement, an award of Restricted Stock Units shall be settled as and when the Restricted Stock Units vest (but in no event later than March 15 of the calendar year following the end of the calendar year in which the Restricted Stock Units vest).

 

SECTION 8.                          OTHER STOCK-BASED AWARDS

 

Other Awards of Common Stock and other Awards that are valued in whole or in part by reference to, or are otherwise based upon or settled in, Common Stock, including (without limitation), unrestricted stock, performance units, dividend equivalents, and convertible debentures, may be granted under the Plan.

 

SECTION 9.                          CASH-BASED AWARDS

 

Cash-Based Awards may be granted under this Plan.  Cash-Based Awards that are Qualified Performance-Based Awards shall be subject to the provisions of Section 11 of this Plan.  In addition, no Eligible Individual may be granted Cash-Based Awards that are Qualified Performance-Based Award that have an aggregate maximum payment value in any calendar year in excess of $10.0 million.  Cash-Based Awards may be paid in cash or in Shares (valued at Fair Market Value as of the date of payment) as determined by the Committee.

 

SECTION 10.                   CHANGE IN CONTROL PROVISIONS

 

(a)                                  Definition of Change in Control .  Except as otherwise may be provided in an applicable Award Agreement, for purposes of the Plan, a “ Change in Control ” shall mean any of the following events:

 

(i)                                      The acquisition by any individual entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act), other than Barry Diller and his Affiliates (a “ Person ”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of equity securities of the Company representing more than 50% of the voting power of the then outstanding equity securities of the Company entitled to vote generally in the election of directors (the “ Outstanding Company Voting Securities ”); provided , however , that for purposes of this subsection (i), the following acquisitions shall not constitute a Change in Control: (A) any acquisition by the Company, (B) any acquisition directly from the Company, (C) any acquisition by

 

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any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company, or (D) any acquisition pursuant to a transaction which complies with clauses (A), (B) and (C) of subsection (iii); or

 

(ii)                                   Individuals who, as of the Effective Date, constitute the Board (the “ Incumbent Board ”) cease for any reason to constitute at least a majority of the Board; provided , however , that any individual becoming a director subsequent to the Effective Date, whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board, or whose election was not opposed by Barry Diller voting as a stockholder, shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; or

 

(iii)                                Consummation of a reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets of the Company or the purchase of assets or stock of another entity (a “ Business Combination ”), in each case, unless immediately following such Business Combination, (A) all or substantially all of the individuals and entities who were the beneficial owners of the Outstanding Company Voting Securities immediately prior to such Business Combination will beneficially own, directly or indirectly, more than 50% of the then outstanding combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors (or equivalent governing body, if applicable) of the entity resulting from such Business Combination (including, without limitation, an entity which as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to such Business Combination of the Outstanding Company Voting Securities, (B) no Person (excluding Barry Diller and his Affiliates, any employee benefit plan (or related trust) of the Company or such entity resulting from such Business Combination) will beneficially own, directly or indirectly, more than a majority of the combined voting power of the then outstanding voting securities of such entity except to the extent that such ownership of the Company existed prior to the Business Combination and (C) at least a majority of the members of the board of directors (or equivalent governing body, if applicable) of the entity resulting from such Business Combination will have been members of the Incumbent Board at the time of the initial agreement, or action of the Board, providing for such Business Combination; or

 

(iv)                               Approval by the stockholders of the Company of a complete liquidation or dissolution of the Company.

 

For the avoidance of doubt, a spin-off of the Company from IAC shall not constitute a Change in Control.

 

(b)                                  Impact of Event/Double Trigger .  Unless otherwise provided in the applicable Award Agreement, subject to Sections 3(d), 10(d) and 14(k), notwithstanding any other

 

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provision of this Plan to the contrary, upon a Participant’s Termination of Employment, during the two-year period following a Change in Control, by the Company other than for Cause or Disability or by the Participant for Good Reason (as defined below):

 

(i)                                      any Options and Stock Appreciation Rights outstanding as of such Termination of Employment which were outstanding as of the date of such Change in Control shall be fully exercisable and vested and shall remain exercisable until the later of (i) the last date on which such Option or Stock Appreciation Right would be exercisable in the absence of this Section 10(b) and (ii) the earlier of (A) the first anniversary of such Change in Control and (B) expiration of the Term of such Option or Stock Appreciation Right;

 

(ii)                                   all Restricted Stock outstanding as of such Termination of Employment which were outstanding as of the date of such Change in Control shall become free of all restrictions and become fully vested and transferable; and

 

(iii)                                all Restricted Stock Units outstanding as of such Termination of Employment which were outstanding as of the date of such Change in Control shall be considered to be earned and payable in full, and any restrictions shall lapse and such Restricted Stock Units shall be settled as promptly as is practicable (but in no event later than March 15 of the calendar year following the end of the calendar year in which the Restricted Stock Units vest).

 

(c)                                   For purposes of this Section 10, “ Good Reason ” means (i) “Good Reason” as defined in any Individual Agreement or Award Agreement to which the applicable Participant is a party, or (ii) if there is no such Individual Agreement or if it does not define Good Reason, without the Participant’s prior written consent:  (A) a material reduction in the Participant’s rate of annual base salary from the rate of annual base salary in effect for such Participant immediately prior to the Change in Control, (B) a relocation of the Participant’s principal place of business more than 35 miles from the city in which such Participant’s principal place of business was located immediately prior to the Change in Control or (C) a material and demonstrable adverse change in the nature and scope of the Participant’s duties from those in effect immediately prior to the Change in Control.  In order to invoke a Termination of Employment for Good Reason, a Participant shall provide written notice to the Company of the existence of one or more of the conditions described in clauses (A) through (C) within 90 days following the Participant’s knowledge of the initial existence of such condition or conditions, and the Company shall have 30 days following receipt of such written notice (the “ Cure Period ”) during which it may remedy the condition.  In the event that the Company fails to remedy the condition constituting Good Reason during the Cure Period, the Participant must terminate employment, if at all, within 90 days following the Cure Period in order for such Termination of Employment to constitute a Termination of Employment for Good Reason.

 

(d)                                  Notwithstanding the foregoing, if any Award is subject to Section 409A of the Code, this Section 10 shall be applicable only to the extent specifically provided in the Award Agreement or in the Individual Agreement.

 

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SECTION 11.                   QUALIFIED PERFORMANCE-BASED AWARDS; SECTION 16(b)

 

(a)                                  The provisions of this Plan are intended to ensure that all Options and Stock Appreciation Rights granted hereunder to any Participant who is or may be a “covered employee” (within the meaning of Section 162(m)(3) of the Code) in the tax year in which such Option or Stock Appreciation Right is expected to be deductible to the Company qualify for the Section 162(m) Exemption, and all such Awards shall therefore be considered Qualified Performance-Based Awards and this Plan shall be interpreted and operated consistent with that intention (including, without limitation, to require that all such Awards be granted by a committee composed solely of members who satisfy the requirements for being “outside directors” for purposes of the Section 162(m) Exemption (“ Outside Directors ”)).  When granting any Award other than an Option or Stock Appreciation Right, the Committee may designate such Award as a Qualified Performance-Based Award, based upon a determination that (i) the recipient is or may be a “covered employee” (within the meaning of Section 162(m)(3) of the Code) with respect to such Award, and (ii) the Committee wishes such Award to qualify for the Section 162(m) Exemption, and the terms of any such Award (and of the grant thereof) shall be consistent with such designation (including, without limitation, that all such Awards be granted by a committee composed solely of Outside Directors).

 

(b)                                  The full Board shall not be permitted to exercise authority granted to the Committee to the extent that the grant or exercise of such authority would cause an Award designated as a Qualified Performance-Based Award not to qualify for, or to cease to qualify for, the Section 162(m) Exemption.

 

(c)                                   The provisions of this Plan are intended to ensure that no transaction under the Plan is subject to (and all such transactions will be exempt from) the short-swing recovery rules of Section 16(b) of the Exchange Act (“ Section 16(b) ”).  Accordingly, the composition of the Committee shall be subject to such limitations as the Board deems appropriate to permit transactions pursuant to this Plan to be exempt (pursuant to Rule 16b-3 promulgated under the Exchange Act) from Section 16(b), and no delegation of authority by the Committee shall be permitted if such delegation would cause any such transaction to be subject to (and not exempt from) Section 16(b).

 

SECTION 12.                   TERM, AMENDMENT AND TERMINATION

 

(a)                                  Effectiveness .  The Plan shall be effective as of November 18, 2015 (the “ Effective Date ”).

 

(b)                                  Termination .  The Plan will terminate on the tenth anniversary of the Effective Date.  Awards outstanding as of such date shall not be affected or impaired by the termination of the Plan.

 

(c)                                   Amendment of Plan .  The Board may amend, alter, or discontinue the Plan, but no amendment, alteration or discontinuation shall be made which would materially impair the rights of the Participant with respect to a previously granted Award without such Participant’s consent, except such an amendment made to comply with applicable law (including without limitation Section 409A of the Code), stock exchange rules or accounting rules.  In addition, no amendment

 

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shall be made without the approval of the Company’s stockholders to the extent such approval is required by applicable law or the listing standards of the Applicable Exchange.

 

(d)                                  Amendment of Awards .  Subject to Section 5(d), the Committee may unilaterally amend the terms of any Award theretofore granted, but no such amendment shall, without the Participant’s consent, materially impair the rights of any Participant with respect to an Award, except such an amendment made to cause the Plan or Award to comply with applicable law, stock exchange rules or accounting rules.

 

SECTION 13.                   UNFUNDED STATUS OF PLAN

 

It is intended that the Plan constitute an “unfunded” plan.  Solely to the extent permitted under Section 409A, the Committee may authorize the creation of trusts or other arrangements to meet the obligations created under the Plan to deliver Common Stock or make payments; provided , however , that the existence of such trusts or other arrangements is consistent with the “unfunded” status of the Plan.

 

SECTION 14.                   GENERAL PROVISIONS

 

(a)                                  Conditions for Issuance .  The Committee may require each person purchasing or receiving Shares pursuant to an Award to represent to and agree with the Company in writing that such person is acquiring the Shares without a view to the distribution thereof.  The certificates for such Shares may include any legend which the Committee deems appropriate to reflect any restrictions on transfer.  Notwithstanding any other provision of the Plan or agreements made pursuant thereto, the Company shall not be required to issue or deliver any certificate or certificates for Shares under the Plan prior to fulfillment of all of the following conditions:  (i) listing or approval for listing upon notice of issuance, of such Shares on the Applicable Exchange; (ii) any registration or other qualification of such Shares of the Company under any state or federal law or regulation, or the maintaining in effect of any such registration or other qualification which the Committee shall, in its absolute discretion upon the advice of counsel, deem necessary or advisable; and (iii) obtaining any other consent, approval, or permit from any state or federal governmental agency which the Committee shall, in its absolute discretion after receiving the advice of counsel, determine to be necessary or advisable.

 

(b)                                  Additional Compensation Arrangements .  Nothing contained in the Plan shall prevent the Company or any Subsidiary or Affiliate from adopting other or additional compensation arrangements for its employees.

 

(c)                                   No Contract of Employment .  The Plan shall not constitute a contract of employment, and adoption of the Plan shall not confer upon any employee any right to continued employment, nor shall it interfere in any way with the right of the Company or any Subsidiary or Affiliate to terminate the employment of any employee at any time.

 

(d)                                  Required Taxes .  No later than the date as of which an amount first becomes includible in the gross income of a Participant for federal, state, local or foreign income or employment or other tax purposes with respect to any Award under the Plan, such Participant shall pay to the Company, or make arrangements satisfactory to the Company regarding the payment of, any federal, state, local or foreign taxes of any kind required by law to be withheld

 

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with respect to such amount.  If determined by the Company, withholding obligations may be settled with Common Stock, including Common Stock that is part of the Award that gives rise to the withholding requirement.  The obligations of the Company under the Plan shall be conditional on such payment or arrangements, and the Company and its Affiliates shall, to the extent permitted by law, have the right to deduct any such taxes from any payment otherwise due to such Participant.  The Committee may establish such procedures as it deems appropriate, including making irrevocable elections, for the settlement of withholding obligations with Common Stock.

 

(e)                                   Limitation on Dividend Reinvestment and Dividend Equivalents .  Reinvestment of dividends in additional Restricted Stock at the time of any dividend payment, and the payment of Shares with respect to dividends to Participants holding Awards of Restricted Stock Units, shall only be permissible if sufficient Shares are available under Section 3 for such reinvestment or payment (taking into account then outstanding Awards).  In the event that sufficient Shares are not available for such reinvestment or payment, such reinvestment or payment shall be made in the form of a grant of Restricted Stock Units equal in number to the Shares that would have been obtained by such payment or reinvestment, the terms of which Restricted Stock Units shall provide for settlement in cash and for dividend equivalent reinvestment in further Restricted Stock Units on the terms contemplated by this Section 14(e).

 

(f)                                    Designation of Death Beneficiary .  The Committee shall establish such procedures as it deems appropriate for a Participant to designate a beneficiary to whom any amounts payable in the event of such Participant’s death are to be paid or by whom any rights of such eligible Individual, after such Participant’s death, may be exercised.

 

(g)                                   Subsidiary Employees .  In the case of a grant of an Award to any employee of a Subsidiary, the Company may, if the Committee so directs, issue or transfer the Shares, if any, covered by the Award to the Subsidiary, for such lawful consideration as the Committee may specify, upon the condition or understanding that the Subsidiary will transfer the Shares to the employee in accordance with the terms of the Award specified by the Committee pursuant to the provisions of the Plan.  All Shares underlying Awards that are forfeited or canceled shall revert to the Company.

 

(h)                                  Governing Law and Interpretation .  The Plan and all Awards made and actions taken thereunder shall be governed by and construed in accordance with the laws of the State of Delaware, without reference to principles of conflict of laws.  The captions of this Plan are not part of the provisions hereof and shall have no force or effect.

 

(i)                                      Non-Transferability .  Except as otherwise provided in Section 5(j) or as determined by the Committee, Awards under the Plan are not transferable except by will or by laws of descent and distribution.

 

(j)                                     Foreign Employees and Foreign Law Considerations .  The Committee may grant Awards to Eligible Individuals who are foreign nationals, who are located outside the United States or who are not compensated from a payroll maintained in the United States, or who are otherwise subject to (or could cause the Company to be subject to) legal or regulatory provisions of countries or jurisdictions outside the United States, on such terms and conditions different

 

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from those specified in the Plan as may, in the judgment of the Committee, be necessary or desirable to foster and promote achievement of the purposes of the Plan, and, in furtherance of such purposes, the Committee may make such modifications, amendments, procedures, or subplans as may be necessary or advisable to comply with such legal or regulatory provisions.

 

(k)                                  Section 409A of the Code .  It is the intention of the Company that no Award shall be “deferred compensation” subject to Section 409A of the Code, unless and to the extent that the Committee specifically determines otherwise as provided in this Section 14(k), and the Plan and the terms and conditions of all Awards shall be interpreted accordingly.  The terms and conditions governing any Awards that the Committee determines will be subject to Section 409A of the Code, including any rules for elective or mandatory deferral of the delivery of cash or Shares pursuant thereto and any rules regarding treatment of such Awards in the event of a Change in Control, shall be set forth in the applicable Award Agreement, and shall comply in all respects with Section 409A of the Code.  Notwithstanding any other provision of the Plan to the contrary, with respect to any Award that constitutes a “nonqualified deferred compensation plan” subject to Section 409A of the Code, if the Participant is a “specified employee” within the meaning of Section 409A of the Code, any payments (whether in cash, Shares or other property) to be made with respect to the Award upon the Participant’s Termination of Employment shall be delayed until the earlier of (A) the first day of the seventh month following the Participant’s Termination of Employment and (B) the Participant’s death. Each payment under any Award shall be treated as a separate payment for purposes of Section 409A of the Code.  In no event may a Participant, directly or indirectly, designate the calendar year of any payment to be made under any Award.

 

(l)                                      Prior Plan Awards; Adjusted Awards .  Notwithstanding anything in this Plan to the contrary, to the extent that the terms of this Plan are inconsistent with the terms of a Prior Plan Award or an Adjusted Award, the terms of the Prior Plan Award or Adjusted Award shall be governed by the applicable plan under which the Prior Plan Award or Adjusted Award was granted and the award agreement thereunder.  Any reference to a “change in control,” “change of control” or similar definition in an Award Agreement or the applicable plan for any Adjusted Award or Prior Plan Award shall be deemed to refer to a “change in control,” “change of control” or similar transaction with respect to the Company (as successor to the originally-referenced entity) for such Adjusted Award or Prior Plan Award.

 

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Exhibit 14.1

 

 

MATCH GROUP, INC.

CODE OF BUSINESS CONDUCT AND ETHICS (November 2015)

 

Introduction

 

This Code of Business Conduct and Ethics (“Code of Ethics” or “Code”) reflects the commitment of Match Group, Inc. (“Match Group” and, together with its businesses, the “Company”) to conduct its business affairs in accordance with not only the requirements of law, but also standards of ethical conduct that will maintain and foster the Company’s reputation for honest and straightforward business dealings. The standards in this Code may be further explained or implemented through policy memoranda, including those relating to specific areas of our business. If a law conflicts with a policy in this Code, you must comply with the law. This Code and related memoranda and manuals are available from the Human Resources and Legal Departments of Match Group and each Match Group business.

 

This Code of Ethics applies to all Match Group directors, officer and employees, as well as to directors, officers and employees of each subsidiary of Match Group. Such directors, officers and employees are collectively hereinafter referred to as “covered persons”.

 

You are strongly encouraged to consult with supervisory personnel or the Legal Department of your business or Match Group if you have any questions concerning the requirements or interpretation of this Code of Ethics.

 

Those who violate the standards in this Code may be subject to disciplinary action. If you are in or aware of a situation which you believe may violate or lead to a violation of this Code, please follow the guidelines described in Sections 9 and 10 of this Code.

 

1.                      Honest, Lawful and Ethical Conduct

 

The conduct of covered persons in performing their duties on behalf of the Company must in all situations, as to all matters and at all times, be honest, lawful and in accordance with high ethical and professional standards.

 

The requirement of honest, lawful, and ethical conduct is broad and therefore must be stated in general terms. As such, this Code does not cover every issue that may arise, but instead sets out basic principles to guide all covered persons.

 

2.                      Conflicts of Interest

 

Conflicts of interest may impair or interfere with a covered person’s performance of his or her duties to the Company or his or her ability to act in the Company’s best interests. A “conflict of interest” exists when a covered person’s personal or private interest improperly interferes with, or is adverse (or appears to be adverse) to, the interests of the Company. A conflict situation can arise when a covered person takes actions or has interests that may make it difficult to perform his or her work for the Company objectively and effectively. Conflicts of interest often arise directly, but

 

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may also arise when a covered person receives improper personal benefits as a result of his or her position in the Company.

 

While it is impossible to foresee every potential conflict that could arise, examples of conflicts could include affiliations or investments in competitors, customers, suppliers, or others who do business with Match Group. All covered persons must be sensitive to potential conflicts and avoid them where possible. The Company respects the privacy of its directors, officers and employees and their right to engage in outside activities (which expressly include, in the case of directors, serving as an executive officer, employee or director of, and/or maintaining a significant direct or indirect beneficial ownership interest in, another entity) that do not conflict with the interests of, do not interfere with the performance of their duties on behalf of, and do not reflect poorly on the Company. The Company nonetheless has the right and obligation to determine whether conflicts of interest exist and to take appropriate action to address them.

 

Before engaging in any material transaction or relationship (including the acceptance of an executive officer or director position with another entity or the making of a significant direct or indirect investment in another entity) that reasonably could give rise to an actual or apparent conflict of interest, each covered person must provide full and fair disclosure of all relevant facts and circumstances to, in the case of a Match Group Board member or executive officer, the Match Group General Counsel or, in the case of any other covered person, his or her business Legal Department or the Match Group Legal Department, as applicable. Whenever a general counsel of a Match Group business learns of a potential conflict of interest transaction or relationship relating to his or her business or employees that appears to be material, he or she shall immediately inform the Match Group Legal Department to help determine the appropriate course of action. After evaluating the reported transaction or relationship, Match Group will determine the appropriate protective measures, if any, which measures may include prohibiting such transaction or relationship.

 

In most cases, anything that would constitute a conflict for a covered person also would present a conflict if it is related to a member of his or her family. In particular, if a covered person’s spouse or other close family member works for a firm that does business with or competes against the Company, your business Legal Department should be advised of the situation in writing.

 

Conflicts of interest may not always be clear-cut, so if you have a question, you should consult with senior management or your Legal Department. In addition, for Match Group directors only, the provisions of the Section 2 are subject to the Article XIII of Match Group’s Amended and Restated Certificate of Incorporation.

 

3.                       Corporate Opportunity

 

Covered persons are prohibited from taking advantage, for themselves or other companies with which they are affiliated, of any opportunity that is in any of Match Group’s lines of business or in which Match Group has an interest or expectancy. If any covered person has a question as to whether a given opportunity is covered by the foregoing sentence, he or she is advised to consult with Match Group’s General Counsel in advance of pursuing it. Notwithstanding any of the foregoing, in no event shall any director of Match Group be deemed to have violated the terms of this provision if a specific opportunity came to his or her attention through any means not connected with his or her service to Match Group.

 

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In addition, covered persons may not use corporate property or information or their positions with Match Group for improper personal gain. Lastly, for Match Group directors only, the provisions of the Section 3 are subject to the Article XIII of Match Group’s Amended and Restated Certificate of Incorporation.

 

4.                       Compliance with Laws, Rules and Regulations

 

Complying with the law is the foundation on which Match Group’s ethical standards are built. It is Match Group’s policy to be a good “corporate citizen”. All covered persons must comply with applicable governmental laws, rules and regulations. Reasons such as “everyone does it” are unacceptable excuses for violating this requirement of this Code.

 

Although not all covered persons are expected to know the details of these laws, it is important to know enough to determine when to seek advice from your supervisors, managers, your Legal Department or other appropriate personnel. Any suspected or actual violation of any applicable law, rule or regulation should be reported immediately to your immediate supervisor or your Legal Department.

 

5.                       Insider Trading

 

Covered persons who, as a result of their employment at or other association with the Company, are in possession of material, non-public information about any publicly traded corporation, including Match Group, may not engage in transactions in the securities of such corporations and should not share such information with anyone who might engage in such transactions. To do so is not only unethical, but also illegal, and could expose you to civil and criminal penalties.

 

Please read and familiarize yourself with the “Match Group Securities Trading Policy”, which can be obtained from your Human Resources or Legal Department. If you should have further questions in this area, please consult the Match Group Legal Department.

 

6.                       Disclosure, Financial Reporting, and Accounting

 

The Company is committed to providing full, fair, accurate, timely and understandable disclosure in all reports and documents filed with or submitted to the Securities and Exchange Commission (“SEC”) and in all other public communications made by the Company. All of the Company’s books, records, accounts and financial statements must be maintained in reasonable detail, must appropriately reflect the Company’s transactions and must conform both to applicable legal requirements and to the Company’s system of internal controls. Unrecorded or “off the books” funds or assets should not be maintained unless permitted by applicable law or regulation and brought to the attention of Match Group’s Controller.

 

Any covered person who learns of any material information affecting or potentially affecting the accuracy or adequacy of the disclosures made by the Company in its SEC filings or other public statements shall bring the matter promptly to the attention of a member of the Match Group Disclosure Committee. The Disclosure Committee consists of the General Counsel of Match Group, the Chief Financial Officer of Match Group and such other employees of Match Group as may be designated from time to time.

 

Senior management, including the senior financial officers, of Match Group’s businesses shall report their respective financial results to senior management of Match Group in a way that

 

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enables Match Group to fairly present the consolidated financial position and the consolidated results of operations and cash flows of the Company in conformity with accounting principles generally accepted in the United States, applied on a consistent basis.

 

Any covered person who learns of any information concerning: (i) significant deficiencies or material weaknesses in the design or operation of internal controls which could adversely affect the Company’s ability to record, process, summarize and report financial data accurately, or (ii) any fraud, whether or not material, involving management or other employees who have a significant role in the Company’s financial reporting, disclosures or internal controls, shall bring the matter promptly to the attention of a member of the Disclosure Committee.

 

Upon receipt of any such information, the Disclosure Committee shall investigate the matter, consult with senior management as warranted, confer with the Audit Committee if appropriate, and ensure that any necessary corrective action is taken.

 

7.                       Confidentiality

 

Covered persons must maintain the confidentiality of confidential information entrusted to them by the Company and/or IAC and their respective customers or suppliers, except when disclosure is authorized by your Legal Department, required by laws or regulations or ordinary and necessary in the course of carrying out your responsibilities as an employee, officer or director of the Company. Confidential information includes all non-public information that might be of use to competitors, or harmful to the Company or its customers or suppliers, if disclosed. It also includes information that suppliers and customers have entrusted to us. The obligation to preserve confidential information continues even after employment or service ends.

 

8.                       Waivers of the Code of Business Conduct and Ethics

 

Any waiver of this Code for executive officers or directors of Match Group may be made only by the Match Group Board of Directors or a properly authorized Match Group Board committee and will be promptly disclosed to shareholders along with reasons for such waiver as required by law or Nasdaq regulation.

 

9.                       Compliance Procedures

 

We must all work to ensure prompt and consistent action in response to violations of this Code. However, in some situations it is difficult to know right from wrong. Since we cannot anticipate every situation that will arise, it is important that we have a way to approach a new question or problem. These are the steps to keep in mind:

 

Make sure you have all the facts. In order to reach the right solutions, we must be as fully informed as possible.

 

Ask yourself: What specifically am I being asked to do? Does it seem unethical or improper? This will enable you to focus on the specific question you are faced with, and the alternatives you have. Use your judgment and common sense; if something seems unethical or improper, it probably is.

 

Clarify your responsibility and role. In most situations, there is shared responsibility. Are your colleagues informed? It may help to get others involved and discuss the problem.

 

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Discuss the problem with your supervisor. This is the basic guidance for all situations. In many cases, your supervisor will be more knowledgeable about the question, and will appreciate being brought into the decision-making process. Remember that it is your supervisor’s responsibility to help solve problems.

 

Ask first, act later: If you are unsure of what to do in any situation, seek guidance before you act.

 

10.                    Enforcement

 

The Company is committed to full, prompt, and fair enforcement of the provisions of this Code of Ethics.

 

Reporting Violations . Any covered person who learns of information indicating that a violation of this Code of Ethics has been or is about to be committed shall immediately report the facts to the general counsel of your Match Group business (or his or her designee), if applicable, or otherwise to the Match Group Legal Department.

 

The failure to report a violation of this Code of Ethics may itself be a violation of this Code.

 

Whenever a general counsel of a Match Group business learns of a reported violation of this Code of Ethics that involves a violation of law (including any violation of the securities laws) or otherwise appears to be particularly serious, he or she shall immediately inform Match Group’s General Counsel.

 

Protection for Reporting Violation s. It is prohibited, and is a violation of this Code of Ethics, for anyone associated with the Company to retaliate in any way against anyone who has reported to the Company in good faith information indicating that a violation of this Code may have occurred or may be about to occur.

 

Prohibited forms of retaliation include adverse employment actions (such as termination, suspension and demotion), the creation of a hostile work environment, and any other type of reprisal for the good-faith reporting of a possible violation of this Code of Ethics.

 

Investigating Reports of Violations . Upon receipt of a report of a possible violation of this Code of Ethics, the Match Group Legal Department or Match Group business Legal Department, as the case may be, shall promptly initiate an investigation to gather the relevant facts.

 

All lawful and appropriate investigative means and methods may be utilized in the conduct of the investigation.

 

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All covered persons shall cooperate in the investigation when called upon to do so. A failure to cooperate may itself constitute a violation of this Code.

 

The Match Group Legal Department shall be kept apprised of the progress and informed of the results of investigations performed by general counsels of Match Group businesses. In conducting and monitoring investigations, the Match Group Legal Department shall consult and coordinate as appropriate with senior management, the Internal Audit Department, the Human Resources Department and the Audit Committee, and shall seek to ensure that the provisions of this Code of Ethics are applied and enforced consistently across the population of covered persons and across Match Group businesses.

 

Sanctions for Violations . Appropriate disciplinary action shall be determined upon completion of the investigation, if the Match Group General Counsel or the general counsel of the Match Group business, as the case may be, concludes that a violation of this Code of Ethics has been committed and disciplinary action is warranted. Any violation of this Code may result in serious sanctions by the Company, which may include dismissal, suspension without pay, loss of pay or bonus, loss of benefits, demotion or other sanctions.

 

Any disciplinary action to be taken against a covered person shall be subject to the approval of senior management (or, in the case of directors, the Audit Committee), and shall be carried out by the Human Resources Department of the applicable business or Match Group.

 


Exhibit 99.1

 

Match Group Announces Pricing of Initial Public Offering

 

NEW YORK, Nov. 18, 2015 — IAC/InterActiveCorp (“IAC”) and Match Group, Inc. (“Match Group”), a wholly-owned subsidiary of IAC, announced today the pricing of Match Group’s initial public offering (“IPO”) of 33,333,333 shares of its common stock at a price to the public of $12.00 per share. In addition, Match Group has granted underwriters a 30-day option to purchase an additional 5,000,000 shares at the initial public offering price, less underwriting discounts and commissions.  The shares are expected to begin trading on November 19, 2015 on the NASDAQ Global Select Stock Market under the ticker symbol “MTCH.”

 

The offering is expected to close on or about November 24, 2015, subject to customary closing conditions.

 

J.P. Morgan Securities LLC, Allen & Company LLC and BofA Merrill Lynch are acting as the lead bookrunning managers, and Deutsche Bank Securities, BMO Capital Markets, Barclays and BNP PARIBAS are acting as bookrunners for the offering.

 

This offering is being made only by means of a prospectus. A copy of the final prospectus may be obtained from J.P. Morgan Securities LLC, c/o Broadridge Financial Solutions, Attention: Prospectus Department, 1155 Long Island Avenue, Edgewood, NY 11717, or by telephone at (866) 803-9204, from Allen & Company LLC, Attention: Syndicate Department, 711 Fifth Avenue, New York, NY 10022, or by telephone at (212) 339-2220 or from BofA Merrill Lynch, Attention: Prospectus Department, 222 Broadway, New York, NY 10038, or by e-mailing: dg.prospectus_requests@baml.com.

 

A registration statement relating to these securities has been filed with, and declared effective by, the U.S. Securities and Exchange Commission. This press release shall not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of these securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.

 

About IAC

 

IAC (NASDAQ:IACI) is a leading media and Internet company. It is organized into four segments: Match Group, which includes dating and education businesses with brands such as Match, OkCupid, Tinder and The Princeton Review; Search & Applications, which includes brands such as About.com, Ask.com, Dictionary.com and Investopedia; Media, which consists of businesses such as Vimeo, Electus, The Daily Beast and CollegeHumor; and eCommerce, which includes HomeAdvisor and ShoeBuy. IAC’s brands and products are among the most recognized in the world reaching users in over 200 countries. IAC is headquartered in New York City and has offices worldwide.

 

About Match Group

 

Match Group is the world’s leading provider of dating products. We operate a portfolio of over 45 brands, including Match, OkCupid, Tinder, Meetic, Twoo, OurTime, BlackPeopleMeet and FriendScout24, each designed to increase our users’ likelihood of finding a romantic connection. Through our portfolio of trusted brands, we provide tailored products to meet the varying

 



 

preferences of our users. We currently offer our dating products in 38 languages across more than 190 countries. In addition to our dating business, we also operate The Princeton Review, which provides a variety of test preparation, academic tutoring and college counseling services.

 

Safe Harbor Statement Under the Private Securities Litigation Reform Act of 1995

 

This press release contains “forward - looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. The use of words such as “anticipates,” “expects,” “intends,” “plans” and “believes,” among others, generally identify forward-looking statements.  These forward-looking statements include statements relating to: the completion and timing of the offering, future financial performance, business prospects and strategy, anticipated trends, prospects in the industries in which our businesses operate and other similar matters. These forward - looking statements are based on management’s current expectations and assumptions about future events, which are inherently subject to uncertainties, risks and changes in circumstances that are difficult to predict. Actual results could differ materially from those contained in these forward - looking statements for a variety of reasons, including, among others: risks and uncertainties related to the capital markets, changes in senior management at IAC or its businesses, changes in our relationship with Google, adverse changes in economic conditions, adverse trends in the online advertising industry, our ability to convert visitors to our websites into users, risks relating to acquisitions, technology changes, our ability to expand successfully into international markets and regulatory changes. Certain of these and other risks and uncertainties are discussed in IAC’s filings with the Securities and Exchange Commission (“SEC”). Other unknown or unpredictable factors that could also adversely affect our business, financial condition and results of operations may arise from time to time. In light of these risks and uncertainties, these forward - looking statements may not prove to be accurate. Accordingly, you should not place undue reliance on these forward - looking statements, which only reflect the views of our management as of the date of this press release. We do not undertake to update these forward-looking statements.

 

Contact Us

 

IAC Investor Relations

 

Mark Schneider / Alexandra Caffrey

 

(212) 314-7400

 

Corporate Communications

 

Isabelle Weisman

 

(212) 314-7361

 


Exhibit 99.2

 

IAC and Match Group Announce Full Exercise of Underwriters’ Option to Purchase Match Group Common Stock

 

NEW YORK and DALLAS, Nov. 23, 2015 — IAC/InterActiveCorp (“IAC”) and Match Group, Inc. (“Match Group”) announced today that the underwriters in Match Group’s initial public offering have exercised in full the option to purchase 5,000,000 shares of Match Group’s common stock at the initial public offering price of $12.00 per share less underwriting discounts.

 

With the exercise of this option, the total offering will consist of 38,333,333 shares of Match Group’s common stock and gross proceeds to Match Group of $460.0 million. The shares began trading November 19, 2015 on the NASDAQ Global Select Market under the ticker symbol “MTCH.” The offering is expected to close on November 24, 2015.

 

J.P. Morgan Securities LLC, Allen & Company LLC and BofA Merrill Lynch are acting as the lead bookrunning managers, and Deutsche Bank Securities, BMO Capital Markets, Barclays and BNP PARIBAS are acting as bookrunners for the offering.

 

This offering is being made only by means of a prospectus. A copy of the final prospectus may be obtained from J.P. Morgan Securities LLC, c/o Broadridge Financial Solutions, Attention: Prospectus Department, 1155 Long Island Avenue, Edgewood, NY 11717, or by telephone at (866) 803-9204, from Allen & Company LLC, Attention: Syndicate Department, 711 Fifth Avenue, New York, NY 10022, or by telephone at (212) 339-2220 or from BofA Merrill Lynch, Attention: Prospectus Department, 222 Broadway, New York, NY 10038, or by e-mailing: dg.prospectus_requests@baml.com.

 

A registration statement relating to these securities has been filed with, and declared effective by, the U.S. Securities and Exchange Commission. This press release shall not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of these securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.

 

About IAC

 

IAC (NASDAQ: IACI) is a leading media and Internet company. It is organized into four segments: Match Group, which includes dating and education businesses with brands such as Match, OkCupid, Tinder and The Princeton Review; Search & Applications, which includes brands such as About.com, Ask.com, Dictionary.com and Investopedia; Media, which consists of businesses such as Vimeo, Electus, The Daily Beast and CollegeHumor; and eCommerce, which includes HomeAdvisor and ShoeBuy. IAC’s brands and products are among the most recognized in the world reaching users in over 200 countries. IAC is headquartered in New York City and has offices worldwide.

 

About Match Group

 

Match Group is the world’s leading provider of dating products. We operate a portfolio of over 45 brands, including Match, OkCupid, Tinder, Meetic, Twoo, OurTime, BlackPeopleMeet and FriendScout24, each designed to increase our users’ likelihood of finding a romantic connection. Through our portfolio of trusted brands, we provide tailored products to meet the varying

 



 

preferences of our users. We currently offer our dating products in 38 languages across more than 190 countries. In addition to our dating business, we also operate The Princeton Review, which provides a variety of test preparation, academic tutoring and college counseling services.

 

Safe Harbor Statement Under the Private Securities Litigation Reform Act of 1995

 

This press release contains “forward - looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. The use of words such as “anticipates,” “expects,” “intends,” “plans” and “believes,” among others, generally identify forward-looking statements.  These forward-looking statements include statements relating to: future financial performance, business prospects and strategy, anticipated trends, prospects in the industries in which our businesses operate and other similar matters. These forward - looking statements are based on management’s current expectations and assumptions about future events, which are inherently subject to uncertainties, risks and changes in circumstances that are difficult to predict. Actual results could differ materially from those contained in these forward - looking statements for a variety of reasons, including, among others: risks and uncertainties related to the capital markets, changes in senior management at IAC or its businesses, changes in our relationship with Google, adverse changes in economic conditions, adverse trends in the online advertising industry, our ability to convert visitors to our websites into users, risks relating to acquisitions, technology changes, our ability to expand successfully into international markets and regulatory changes. Certain of these and other risks and uncertainties are discussed in IAC’s filings with the Securities and Exchange Commission (“SEC”). Other unknown or unpredictable factors that could also adversely affect our business, financial condition and results of operations may arise from time to time. In light of these risks and uncertainties, these forward - looking statements may not prove to be accurate. Accordingly, you should not place undue reliance on these forward - looking statements, which only reflect the views of our management as of the date of this press release. We do not undertake to update these forward-looking statements.

 

Contact Us

 

Investor Relations

 

Mark Schneider / Alexandra Caffrey

 

(212) 314-7400

 

Corporate Communications

 

Isabelle Weisman

 

(212) 314-7361

 


Exhibit 99.3

 

 

IAC and Match Group Announce Closing of Initial Public Offering

 

NEW YORK and DALLAS, November 24, 2015  — IAC/InterActiveCorp (“IAC”) and Match Group, Inc. (“Match Group”) announced today the closing of Match Group’s previously announced initial public offering (“IPO”) of 38,333,333 shares of its common stock at a price to the public of $12.00 per share. The shares began trading November 19, 2015 on the NASDAQ Global Select Market under the ticker symbol “MTCH.”

 

The offering of 38,333,333 shares of Match Group common stock included 5,000,000 shares of common stock that were sold pursuant to the underwriters’ option to purchase additional shares, which was exercised in full prior to the closing.

 

Following the completion of the initial public offering, IAC owns 100% of the outstanding Class B common stock of Match Group and retains approximately 84.6% of Match Group’s outstanding shares of capital stock and approximately 98.2% of the combined voting power of Match Group’s outstanding capital stock.

 

J.P. Morgan Securities LLC, Allen & Company LLC and BofA Merrill Lynch acted as the lead bookrunning managers, and Deutsche Bank Securities, BMO Capital Markets, Barclays and BNP PARIBAS acted as bookrunners for the offering.

 

This offering was made only by means of a prospectus. A copy of the final prospectus may be obtained from J.P. Morgan Securities LLC, c/o Broadridge Financial Solutions, Attention: Prospectus Department, 1155 Long Island Avenue, Edgewood, NY 11717, or by telephone at (866) 803-9204, from Allen & Company LLC, Attention: Syndicate Department, 711 Fifth Avenue, New York, NY 10022, or by telephone at (212) 339-2220 or from BofA Merrill Lynch, Attention: Prospectus Department, 222 Broadway, New York, NY 10038, or by e-mailing: dg.prospectus_requests@baml.com.

 

A registration statement relating to these securities has been filed with, and declared effective by, the U.S. Securities and Exchange Commission. This press release shall not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of these securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.

 

About IAC

 

IAC (NASDAQ: IACI) is a leading media and Internet company. It is organized into four segments: Match Group, which includes dating and education businesses with brands such as Match, OkCupid, Tinder and The Princeton Review; Search & Applications, which includes brands such as About.com, Ask.com, Dictionary.com and Investopedia; Media, which consists of businesses such as Vimeo, Electus, The Daily Beast and CollegeHumor; and eCommerce, which includes HomeAdvisor and ShoeBuy. IAC’s brands and products are among the most recognized

 



 

in the world reaching users in over 200 countries. IAC is headquartered in New York City and has offices worldwide.

 

About Match Group  

 

Match Group (NASDAQ: MTCH) is the world’s leading provider of dating products. We operate a portfolio of over 45 brands, including Match, OkCupid, Tinder, Meetic, Twoo, OurTime, BlackPeopleMeet and FriendScout24, each designed to increase our users’ likelihood of finding a romantic connection. Through our portfolio of trusted brands, we provide tailored products to meet the varying preferences of our users. We currently offer our dating products in 38 languages across more than 190 countries. In addition to our dating business, we also operate The Princeton Review, which provides a variety of test preparation, academic tutoring and college counseling services.

 

Contact Us

 

Investor Relations
Mark Schneider / Alexandra Caffrey
(212) 314-7400

 

Corporate Communications
Isabelle Weisman
(212) 314-7361

 

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