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Current report (Form 8-K) · Jun 1, 2026 · Material agreement · Acquisition or asset sale · Leadership change · +2 more
FEDEX CORP
15
Leadership change
Jun 1, 2026
EX-99.1 · tm2616055d2_ex99-1.htm
EX-99.1
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EX-99.1 · tm2616055d2_ex99-1.htm EX-99.1 9 tm2616055d2_ex99-1.htm EXHIBIT 99.1 Exhibit 99.1 FedEx Completes Spin-Off of FedEx Freight • Creates Two Independent, Industry-Leading Public Companies Positioned to Deliver Long-Term Stockholder Value • FedEx Freight Begins Trading Today on the New York Stock Exchange under Ticker “FDXF” MEMPHIS, Tenn. — June 1, 2026 — FedEx Corp. (NYSE: FDX, “FedEx”) today announced the completion of its spin-off of FedEx Freight Holding Company, Inc. (NYSE: FDXF, “FedEx Freight”), establishing FedEx Freight as an independent, publicly traded company and focused leader in the North American less-than-truckload (LTL) industry. FedEx Freight common stock will begin “regular way” trading today on the New York Stock Exchange (“NYSE”) under the ticker symbol “FDXF.” FedEx will continue to trade on the NYSE under the ticker symbol “FDX.” “The successful separation of FedEx Freight is a pivotal milestone, positioning two independent companies to lead their respective industries and create long-term value for their stockholders,” said Raj Subramaniam, FedEx president and chief executive officer. “Today’s spin-off positions FedEx Freight to build on its market-leading scale and a customer-focused culture, and advances the next chapter for FedEx as the industrial network that helps power the global economy.” The spin-off was achieved through the distribution by FedEx of 80.1% of the outstanding shares of FedEx Freight’s common stock on a pro rata basis to the holders of FedEx common stock. Each FedEx stockholder received one share of FedEx Freight common stock for every two shares of FedEx common stock held of record as of the close of business on May 15, 2026. Stockholders will receive cash in lieu of fractional shares of FedEx Freight common stock. FedEx retained 19.9% of the outstanding shares of FedEx Freight common stock. FedEx will dispose of such shares within 24 months of the completion of the separation through one or more subsequent exchanges in repayment of certain FedEx debt held by FedEx creditors and/or through distributions to stockholders of FedEx as dividends or in exchange for outstanding shares of FedEx common stock. Goldman Sachs & Co. LLC and J.P. Morgan Securities LLC served as the financial advisors, and Skadden, Arps, Slate, Meagher & Flom LLP served as legal counsel. About FedEx Corp. FedEx Corp. (NYSE: FDX) provides customers and businesses worldwide with a broad portfolio of transportation, e-commerce, and business services. With annual revenue of $92 billion*, the company offers integrated business solutions utilizing its flexible, efficient, and intelligent global network. Consistently ranked among the world’s most admired and trusted employers, FedEx inspires its more than 500,000 employees to remain focused on safety, the highest ethical and professional standards, and the needs of their customers and communities. FedEx is committed to connecting people and possibilities around the world responsibly and resourcefully, with a goal to achieve carbon-neutral operations by 2040. To learn more, please visit fedex.com/about. Forward Looking Statements Certain statements in this press release may be considered forward-looking statements within the meaning of the Private Securities Litigation Reform Act, such as statements regarding the FedEx Freight business following its separation from FedEx into a new publicly traded company. Forward-looking statements include those preceded by, followed by, or that include the words “will,” “may,” “could,” “would,” “should,” “believes,” “expects,” “forecasts,” “anticipates,” “plans,” “estimates,” “targets,” “projects,” “intends,” or similar expressions. Such forward-looking statements are subject to risks, uncertainties, and other factors which could cause actual results to differ materially from historical * Inclusive of FedEx Freight. Update to be provided following FedEx’s Q4 FY26 earnings call on June 23, 2026. experience or from future results expressed or implied by such forward-looking statements. Potential risks and uncertainties include, but are not limited to, the possibility that the separation of FedEx Freight from FedEx will not result in the intended benefits; the possibility of disruption, including changes to existing business relationships, disputes, litigation, or unanticipated costs, in connection with the separation; uncertainty of the expected financial performance of FedEx following the separation; evolving legal, regulatory, and tax regimes; changes in global economic conditions; actions by third parties, including government agencies; FedEx’s ability to successfully implement its business strategy and global transformation program, and its ability to optimize its network through Network 2.0; FedEx’s ability to achieve cost-reduction initiatives and financial performance goals; and other factors which can be found in FedEx’s press releases and filings with the U.S. Securities and Exchange Commission, including its Annual Report on Form 10-K for the fiscal year ended May 31, 2025, and subsequently filed Quarterly Reports on Form 10-Q. Any forward-looking statement speaks only as of the date on which it is made. Neither FedEx nor anyone else undertakes or assumes any obligation to update or revise any forward-looking statement, whether as a result of new information, future events, or otherwise. FedEx Corp. Media Contact: Caitlin Adams Maier mediarelations@fedex.com FedEx Corp. Investor Relations Contact: Jeni Hollander ir@fedex.com Source: FedEx Corp. ### |
EX-2.1 · tm2616055d2_ex2-1.htm
EX-2.1
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EX-2.1 · tm2616055d2_ex2-1.htm EX-2.1 2 tm2616055d2_ex2-1.htm EXHIBIT 2.1 TABLE OF CONTENTS Exhibit 2.1 SEPARATION AND DISTRIBUTION AGREEMENT by and between FEDEX CORPORATION and FEDEX FREIGHT HOLDING COMPANY, INC. Dated as of May 28, 2026 TABLE OF CONTENTS TABLE OF CONTENTS Page ARTICLE I DEFINITIONS AND INTERPRETATION Section 1.1 General 2 Section 1.2 References; Interpretation 18 Section 1.3 Effectiveness; Suspension 18 ARTICLE II THE SEPARATION Section 2.1 General 19 Section 2.2 Transfer of Assets; Assumption and Satisfaction of Liabilities 19 Section 2.3 Intergroup Accounts 22 Section 2.4 Limitation of Liability; Intergroup Contracts 22 Section 2.5 Transfers Not Effected On or Prior to the Effective Time; Transfers Deemed Effective as of the Effective Time 23 Section 2.6 Wrong Pockets; Mail & Other Communications; Payments 25 Section 2.7 Conveyancing and Assumption Instruments 26 Section 2.8 Further Assurances 26 Section 2.9 Novation of Liabilities 27 Section 2.10 Guarantees and Credit Support Instruments 28 Section 2.11 Bank Accounts; Cash Balances 30 Section 2.12 Disclaimer of Representations and Warranties 30 ARTICLE III CERTAIN ACTIONS AT OR PRIOR TO THE DISTRIBUTION Section 3.1 Certificate of Incorporation; By-laws 31 Section 3.2 Directors 31 Section 3.3 Officers 31 Section 3.4 Resignations 31 Section 3.5 Ancillary Agreements 31 ARTICLE IV THE DISTRIBUTION Section 4.1 Stock Dividends to RemainCo 31 Section 4.2 Fractional Shares 31 Section 4.3 Sole Discretion of RemainCo 32 Section 4.4 Conditions to Distribution 32 Section 4.5 Effectiveness of Distribution 33 ARTICLE V CERTAIN COVENANTS Section 5.1 Auditors and Audits; Annual and Quarterly Financial Statements and Accounting 33 Section 5.2 Separation of Information 35 Section 5.3 Nonpublic Information 37 i TABLE OF CONTENTS Page Section 5.4 Cooperation 37 Section 5.5 Permits and Financial Assurance 37 Section 5.6 Other Covenants 38 ARTICLE VI INDEMNIFICATION Section 6.1 Release of Pre-Distribution Claims 38 Section 6.2 Indemnification by RemainCo 40 Section 6.3 Indemnification by SpinCo 40 Section 6.4 Procedures for Third Party Claims 40 Section 6.5 Procedures for Direct Claims 42 Section 6.6 Cooperation in Defense and Settlement 42 Section 6.7 Indemnification Payments 44 Section 6.8 Indemnification Obligations Net of Insurance Proceeds and Other Amounts 44 Section 6.9 Additional Matters; Survival of Indemnities 45 Section 6.10 Non-Applicability to Taxes 45 ARTICLE VII ACCESS TO INFORMATION; PRIVILEGE; CONFIDENTIALITY Section 7.1 Agreement for Exchange of Information; Archives 45 Section 7.2 Ownership of Information 46 Section 7.3 Compensation for Providing Information 46 Section 7.4 Record Retention 46 Section 7.5 Limitations of Liability 47 Section 7.6 Production of Witnesses; Records; Cooperation 47 Section 7.7 Privileged Matters 47 Section 7.8 Confidential Information; Non-Use 49 Section 7.9 Conflicts Waiver 51 Section 7.10 Personal Data 51 Section 7.11 Non-Applicability to Taxes 51 ARTICLE VIII DISPUTE RESOLUTION Section 8.1 Negotiation and Arbitration 52 Section 8.2 Continuity of Service and Performance 54 ARTICLE IX INSURANCE Section 9.1 RemainCo Insurance Policies 54 Section 9.2 Assigned SpinCo Insurance Policies 55 Section 9.3 Cargo Insurance Policies 55 Section 9.4 Claims-Made Insurance Policies 56 Section 9.5 Miscellaneous 56 Section 9.6 Directors and Officers Indemnification and Insurance 57 Section 9.7 Non-FedEx Insurance Policies 57 ii TABLE OF CONTENTS Page ARTICLE X MISCELLANEOUS Section 10.1 Complete Agreement; Construction 58 Section 10.2 Ancillary Agreements 58 Section 10.3 Counterparts 58 Section 10.4 Survival of Agreements 59 Section 10.5 Expenses 59 Section 10.6 Notices 59 Section 10.7 Waivers 60 Section 10.8 Amendments 60 Section 10.9 Assignment 60 Section 10.10 Successors and Assigns 60 Section 10.11 Certain Termination and Amendment Rights 60 Section 10.12 Payment Terms 60 Section 10.13 No Circumvention 61 Section 10.14 Subsidiaries 61 Section 10.15 Third Party Beneficiaries 61 Section 10.16 Title and Headings 61 Section 10.17 Exhibits and Schedules 61 Section 10.18 Governing Law 62 Section 10.19 Specific Performance 62 Section 10.20 Severability 62 Section 10.21 No Duplication; No Double Recovery 62 Section 10.22 Public Announcements 62 Section 10.23 Tax Treatment of Indemnity Payments 63 EXHIBITS Exhibit A Employee Matters Agreement A-1 Exhibit B IP Cross-License Agreement B-1 Exhibit C Stockholder and Registration Rights Agreement C-1 Exhibit D Tax Matters Agreement D-1 Exhibit E Trademark License Agreement E-1 Exhibit F Transition Services Agreement F-1 iii TABLE OF CONTENTS SEPARATION AND DISTRIBUTION AGREEMENT SEPARATION AND DISTRIBUTION AGREEMENT (this “ Agreement ”), dated as of May 28, 2026, by and between FedEx Corporation, a Delaware corporation (“ RemainCo ”), and FedEx Freight Holding Company, Inc., a Delaware corporation (“ SpinCo ”). Each of RemainCo and SpinCo is sometimes referred to herein as a “ Party ” and collectively, as the “ Parties .” W I T N E S S E T H: WHEREAS , RemainCo, acting through its direct and indirect Subsidiaries, currently conducts (a) the SpinCo Business and (b) the RemainCo Business; WHEREAS , the Board of Directors of RemainCo (the “ Board ”) has determined that it is appropriate, desirable and in the best interests of RemainCo and its stockholders to separate RemainCo into two separate, publicly traded companies, one for each of (a) the SpinCo Business, which shall be owned and conducted, directly or indirectly, by SpinCo, and (b) the RemainCo Business, which shall be owned and conducted, directly or indirectly, by RemainCo; WHEREAS , in order to effect such separation, the Board has determined that it is appropriate, desirable and in the best interests of RemainCo and its stockholders (a) to undertake a series of transactions with respect to the allocation and transfer or assignment of Assets and Liabilities, including by means of the Conveyancing and Assumption Instruments, resulting in (i) RemainCo and/or one or more members of the RemainCo Group, collectively, owning all of the RemainCo Assets, assuming (or retaining or indemnifying the SpinCo Indemnitees against) all of the RemainCo Liabilities and, except as provided in any Ancillary Agreement, operating the RemainCo Business and (ii) SpinCo and/or one or more members of the SpinCo Group, collectively, owning all of the SpinCo Assets, assuming (or retaining or indemnifying the RemainCo Indemnitees against) all of the SpinCo Liabilities and, except as provided in any Ancillary Agreement, operating the SpinCo Business, in each case (clauses (a)(i) and (a)(ii)) (such transactions described in this clause (a), the “ Internal Reorganization ”), and (b) thereafter, for RemainCo to distribute on the Distribution Date to the holders of RemainCo Common Stock as of the close of business on the Distribution Record Date, on a pro rata basis and on the basis of one share of SpinCo Common Stock for every two outstanding shares of RemainCo Common Stock, 80.1% of the then issued and outstanding shares of SpinCo Common Stock (such transactions described in this clause (b), the “ Distribution ”); WHEREAS , in connection with the Internal Reorganization, the Board has determined that it is appropriate, desirable and in the best interests of RemainCo and its stockholders for SpinCo to (a) make the SpinCo Cash Distribution to RemainCo and (b) issue the SpinCo Exchange Debt to RemainCo, in each case as part of the consideration for the assets to be transferred to SpinCo by RemainCo pursuant to the SpinCo Contribution; WHEREAS , (a) no later than 24 months following the SpinCo Contribution, RemainCo will transfer the cash received from SpinCo pursuant to the SpinCo Cash Distribution (the “ SpinCo Cash Proceeds ”) to holders of Eligible RemainCo Debt in satisfaction of such debt, distribute the SpinCo Cash Proceeds to holders of RemainCo Common Stock as a special dividend and/or purchase outstanding shares of RemainCo Common Stock pursuant to a newly authorized RemainCo share repurchase program (collectively, the “ SpinCo Cash Proceeds Purge ”); and (b) no later than 24 months following the SpinCo Contribution, RemainCo will transfer any shares of SpinCo Common Stock not distributed by RemainCo in the Distribution (“ Remainder SpinCo Shares ”) to holders of Eligible RemainCo Debt in satisfaction of such debt (any such transfer, an “ Equity-for-Debt Exchange ”), distribute the Remainder SpinCo Shares to holders of RemainCo Common Stock as a special dividend and/or transfer the Remainder SpinCo Shares to holders of RemainCo Common Stock pursuant to an offer to exchange the Remainder SpinCo Shares for outstanding shares of RemainCo Common Stock (any distribution or transfer of Remainder SpinCo Shares to holders of RemainCo Common Stock, a “ Back-End Distribution ”); WHEREAS , SpinCo has been formed for this purpose and has not engaged in activities except those in connection with the transactions contemplated by the Internal Reorganization, the consummation of the transactions contemplated by this Agreement and those activities necessary in connection with its standup 1 TABLE OF CONTENTS as an independent company (including activities with respect to the SpinCo Financing Arrangements and the distribution of the SpinCo Common Stock); WHEREAS , for U.S. federal income tax purposes, (a) it is intended that the SpinCo Contribution and the Distribution, taken together, qualify as a “reorganization” pursuant to Section 355 and Section 368(a)(1)(D) of the Internal Revenue Code of 1986, as amended (the “ Code ”), and (b) this Agreement (including the Reorganization Step Plan) is intended to constitute, and is hereby adopted as, a “plan of reorganization” within the meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3(a); and WHEREAS , each of RemainCo and SpinCo has determined that it is necessary and desirable to agree to the principal corporate transactions required to effect the Internal Reorganization (to the extent not already effected prior to the date hereof), the SpinCo Cash Distribution, the issuance of the SpinCo Exchange Debt and the Distribution and to enter into other agreements that will govern certain other matters following the Effective Time. NOW, THEREFORE , in consideration of the foregoing and the mutual agreements, provisions and covenants contained in this Agreement, the Parties hereby agree as follows: ARTICLE I DEFINITIONS AND INTERPRETATION Section 1.1 General . As used in this Agreement, the following terms shall have the following meanings: (1) “ Acceptable Alternative Arrangement ” shall have the meaning set forth in Section 2.2(d)(i) . (2) “ Action ” shall mean any demand, action, claim, cause of action, suit, countersuit, arbitration, inquiry, case, litigation, subpoena, proceeding or investigation (whether civil, criminal or administrative) by or before any court or grand jury, any Governmental Entity or any arbitration or mediation tribunal or authority. (3) “ Adversarial Action ” means (i) an Action by a member of the RemainCo Group, on the one hand, against a member of the SpinCo Group, on the other hand, or (ii) an Action by a member of the SpinCo Group, on the one hand, against a member of the RemainCo Group, on the other hand. (4) “ Affiliate ” shall mean, when used with respect to a specified Person, a Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such specified Person. For the purposes of this definition, “control” (including the terms “controlled by” and “under common control with”), when used with respect to any specified Person shall mean 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. Notwithstanding the foregoing, is expressly agreed that (i) no member of the RemainCo Group shall be deemed to be an Affiliate of any member of the SpinCo Group, and (ii) no member of the SpinCo Group shall be deemed to be an Affiliate of any member of the RemainCo Group. (5) “ Agent ” shall mean Computershare Trust Company, N.A. (6) “ Agreement ” shall have the meaning set forth in the preamble hereto. (7) “ Amended and Restated By-laws ” shall mean the amended and restated by-laws of SpinCo substantially in the form filed by SpinCo with the Commission as exhibits to the SpinCo Form 10, subject to any changes thereto determined to be made by RemainCo prior to the Effective Time in its sole discretion and as may thereafter be amended from time to time in accordance with its terms, the terms of the Amended and Restated Certificate of Incorporation and Delaware Law. (8) “ Amended and Restated Certificate of Incorporation ” shall mean the amended and restated certificate of incorporation of SpinCo substantially in the form filed by SpinCo with the Commission as exhibits to the SpinCo Form 10, subject to any changes thereto determined to be made by RemainCo prior to the Effective Time in its sole discretion and as may thereafter be amended from time to time in accordance with its terms and Delaware Law. 2 TABLE OF CONTENTS (9) “ Ancillary Agreements ” shall mean all of the written Contracts, instruments, assignments or other arrangements (other than this Agreement) entered into in connection with the transactions contemplated hereby, including the Tax Matters Agreement, the Transition Services Agreement, the Employee Matters Agreement, the IP Cross-License Agreement, the Trademark License Agreement, the Data Processing and Transfer Agreement, the Stockholder and Registration Rights Agreement and the agreements or other continuing arrangements set forth on Schedule 1.1(9) and any other agreements to be entered into by and between any member of the SpinCo Group and any member of the RemainCo Group, at, prior to or after the Distribution in connection with the Distribution, but shall exclude the Conveyancing and Assumption Instruments. (10) “ Arbitral Tribunal ” shall have the meaning set forth in Section 8.1(c)(i) . (11) “ Assets ” shall mean all right, title and ownership interests in and to all properties, claims, Contracts, businesses or assets (including goodwill), wherever located (including in the possession of vendors or other third parties or elsewhere), of every kind, character and description, whether real, personal or mixed, tangible or intangible, whether accrued, contingent or otherwise, 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 any Person. (12) “ Assigned SpinCo Insurance Policies ” shall have the meaning set forth in Section 9.2(a) . (13) “ Assume ” shall have the meaning set forth in Section 2.2(c) and the term “ Assumption ” shall have its correlative meaning. (14) “ Audited Party ” shall have the meaning set forth in Section 5.1(c) . (15) “ Back-End Distribution ” shall have the meaning set forth in the recitals hereto. (16) “ Board ” shall have the meaning set forth in the recitals hereto. (17) “ Business ” shall mean (a) with respect to SpinCo and/or one or more members of the SpinCo Group, the SpinCo Business, or (b) with respect to RemainCo and/or one or more members of the RemainCo Group, the RemainCo Business. (18) “ Business Day ” shall mean any day that is not a Saturday, a Sunday or any other day on which banks are required or authorized by Law to be closed in New York, New York. (19) “ Cargo Insurance Policies ” shall have the meaning set forth in Section 9.3(a) . (20) “ Cash and Cash Equivalents ” shall mean (a) cash and (b) checks, certificates of deposit having a maturity of less than one year, money orders, marketable securities, money market funds, commercial paper, short-term instruments, funds in time and demand deposits or similar accounts, and any evidence of indebtedness issued or guaranteed by any Governmental Entity, minus the amount of any outbound checks, plus the amount of any deposits in transit. (21) “ Code ” shall have the meaning set forth in the recitals hereto. (22) “ Collective Benefit Services ” shall have the meaning set forth in Section 7.7(a) . (23) “ Commission ” shall mean the United States Securities and Exchange Commission. (24) “ Confidential Information ” shall mean all non-public, confidential or proprietary Information concerning a Party and/or its Subsidiaries or with respect to SpinCo, the SpinCo Business, any SpinCo Asset or any SpinCo Liabilities, or with respect to RemainCo, the RemainCo Business, any RemainCo Assets or any RemainCo Liabilities, which, prior to or following the Effective Time, has been disclosed by a Party or its Subsidiaries to the other Party or its Subsidiaries, or otherwise has come into the possession of, the other, including pursuant to the access provisions of Article VII or any other provision of this Agreement, including any data or documentation resident, existing or otherwise provided in a database or in a storage medium, permanent or temporary, intended for confidential, proprietary and/or privileged use by a Party (except to the extent that such Information can be shown to have been (a) in the public domain or known to the public through no fault of the receiving Party or its Subsidiaries, (b) lawfully acquired by the receiving 3 TABLE OF CONTENTS Party or its Subsidiaries from other sources not known to be subject to confidentiality obligations with respect to such Confidential Information or (c) independently developed by the receiving Party or its Affiliates after the Distribution without reference to or use of any Confidential Information). As used herein, by example and without limitation, Confidential Information shall mean any Information of a Party marked as confidential, proprietary and/or privileged. (25) “ Consents ” shall mean any consents, waivers, notices, reports or other filings obtained, made or to be obtained from or made, including with respect to any Contract, or any registrations, licenses, permits, approvals, authorizations obtained or to be obtained from, or approvals from, or notification requirements to, any Person including a Governmental Entity. (26) “ Contract ” shall mean any agreement, contract, subcontract, obligation, note, indenture, instrument, option, lease, sublease, promise, arrangement, release, warranty, license, sublicense, insurance policy, purchase order or legally binding commitment or undertaking of any nature (whether written or oral and whether express or implied). (27) “ Controller ” shall mean, in addition to any definition for any corollary term provided by Data Protection Laws, the Person who or that determines the purposes and means of the Processing of Personal Data. (28) “ Conveyancing and Assumption Instruments ” shall mean, collectively, the various Contracts and other documents entered into prior to the Effective Time and to be entered into to effect the Transfer of Assets and the Assumption of Liabilities in the manner contemplated by this Agreement and the Internal Reorganization, or otherwise relating to, arising out of or resulting from the Transfer of Assets and/or Assumption of Liabilities between members of each Group, in such form or forms as the applicable parties thereto agree, which shall be on an “as is”, “where is” and “with all faults” basis, and in the case of Conveyancing and Assumption Instruments relating to real property, subject to the further provisions of Section 2.7 . (29) “ Copyrights ” shall mean copyrightable works, copyrights (including in product label or packaging artwork or templates), moral rights, mask work rights, database rights and design rights, in each case, whether or not registered, and registrations and applications for registration thereof. (30) “ Credit Support Instruments ” shall mean any letters of credit, performance bonds, surety bonds, bankers acceptances or other similar arrangements. (31) “ Damages ” shall mean any loss, damage, injury, claim, demand, payments (including those arising out of any settlement or judgment relating to any proceeding), award, fine, penalty, Tax, fee (including reasonable out of pocket attorneys’ or advisors’ fees and disbursements incurred in the defense thereof), charge, cost (including reasonable costs of investigation) or expense of any nature, excluding any incidental, indirect, special, exemplary, punitive or consequential damages (including lost revenues or profits), but including amounts paid or payable to third parties in respect of any third-party claim for which indemnification hereunder is otherwise required (including components of such third-party claim relating to incidental, indirect, special, exemplary, punitive or consequential damages (including lost revenues or profits)). (32) “ Data Protection Laws ” shall mean the following to the extent applicable from time to time: (a) the California Consumer Privacy Act, as amended by the California Privacy Rights Act, (b) the General Data Protection Regulation (2016/679) (“ GDPR ”) and the GDPR as transposed into the national laws of the United Kingdom (“ UK GDPR ”), (c) any national law supplementing the GDPR and UK GDPR and (d) any other data protection or privacy Laws, regulations, regulatory requirements or binding codes of practice throughout the world issued by or with the approval of a relevant data protection authority applicable to the Processing of Personal Data (as amended and/or replaced from time to time). (33) “ Data Subject ” shall mean, in addition to any definition for any corollary term provided by Data Protection Laws, any identified or identifiable natural person to whom the Personal Data Processed pursuant to this Agreement or any Ancillary Agreement relates. 4 TABLE OF CONTENTS (34) “ Data Processing and Transfer Agreement ” shall mean the Data Processing and Transfer Agreement to be entered into on or shortly following the date hereof (but in any case prior to the Distribution) by and between members of each Group. (35) [Reserved] (36) [Reserved] (37) “ Determination ” shall have the meaning set forth in the Tax Matters Agreement. (38) “ Discontinued and/or Divested Operations and Businesses ” shall mean any (a)(v) company, (w) business, (x) business unit, (y) product line or (z) business operation operated or conducted, and (b) any site or plant (and in each case ( clauses (a)(v) through (z) and (b) ) any portion thereof) that was owned, leased, occupied or otherwise used by (or on behalf of) any member of any Group (or any predecessor thereto) or any former Subsidiary thereof (or for which any member of any Group has become liable other than to the extent related to the conduct of the SpinCo Business and RemainCo Business) at any time prior to the Distribution Date and that was not owned, operated or conducted or, with respect to plants and sites, used by (or on behalf of) a member of a Group in the active conduct of the SpinCo Business or RemainCo Business as of the Distribution Date, in each case, whether as a result of sale, transfer, conveyance or other disposition or abandonment, closure, discontinuation or other cessation (other than any temporary cessation or closure set forth on Schedule 1.1(38) and any temporary cessation or closure of a site (or any portion thereof) that has been resolved by the placement of such site or portion thereof back into active use by the Group to which such Asset has been allocated pursuant to this Agreement prior to the Distribution (as evidenced in writing prior to the Distribution) of any (I)(v) company, (w) business, (x) business unit, (y) product line or (z) business operation operated or conducted and (II) any site or plant (and in each case ( clauses (I)(v) through (z) and (II) ) any portion thereof) (clause (b), a “ Legacy Site ”)). (39) “ Dispute ” shall have the meaning set forth in Section 8.1(a) . (40) “ Distribution ” shall have the meaning set forth in the recitals hereto. (41) “ Distribution Date ” shall mean June 1, 2026. (42) “ Distribution Disclosure Documents ” shall mean any registration statement (including any registration statement on Form 10 and all exhibits thereto (including the SpinCo Information Statement) or on Form S-8 related to securities to be offered under any employee benefit plan) and any current reports on Form 8-K filed or furnished with the Commission by SpinCo in connection with the Distribution or by RemainCo solely to the extent such documents relate to the Distribution, but excluding the Financing Disclosure Documents. (43) “ Distribution Record Date ” shall mean May 15, 2026. (44) “ Effective Time ” shall mean 12:01 a.m., Central Time, on the Distribution Date. (45) “ Eligible RemainCo Debt ” shall mean (a) any of the debt instruments of RemainCo set forth on Schedule 1.1(45)(a) and (b) any RemainCo debt instrument (i) issued after the date hereof to refinance one or more of such RemainCo debt instruments and (ii) that will be satisfied in an Equity-for-Debt Exchange. (46) “ Employee Matters Agreement ” shall mean the Employee Matters Agreement to be entered into on or shortly following the date hereof (but in any case prior to the Distribution) by and between members of each Group, substantially in the form attached hereto as Exhibit A . (47) “ Employee Records ” shall have the meaning set forth in the Employee Matters Agreement. (48) “ Employee Related Liabilities ” shall have the meaning set forth in the definition of “Liabilities”. (49) “ Environmental Laws ” shall mean all Laws relating to pollution or protection of the environment or, as such relates to exposure to Hazardous Substances, to human health or safety, including Laws relating to the exposure to, or Release, threatened Release or the presence of Hazardous Substances, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, transport or handling of Hazardous Substances and all Laws with regard to recordkeeping, notification, disclosure and 5 TABLE OF CONTENTS reporting requirements respecting Hazardous Substances, and all Laws relating to endangered or threatened species of fish, wildlife and plants and damage to and the protection of natural resources. (50) “ Environmental Permit ” shall mean any Permit issued under any Environmental Laws. (51) “ Equity-for-Debt Exchange ” shall have the meaning set forth in the recitals hereto. (52) “ Financing Disclosure Documents ” shall mean any prospectus, offering memorandum, offering circular (including franchise offering circular or any similar disclosure statement) or similar disclosure document, whether or not filed with the Commission or any other Governmental Entity, which offers for sale or registers the Transfer or distribution of securities or indebtedness of the SpinCo Group. (53) “ Force Majeure Event ” shall mean, with respect to a Party, an event beyond the control of such Party (or any Person acting on its behalf), which by its nature could not reasonably have been foreseen by such Party (or such Person), or, if it could reasonably have been foreseen, was unavoidable, and includes acts of God, storms, floods, riots, pandemics, fires, sabotage, civil commotion or civil unrest, interference by civil or military authorities, acts of war (declared or undeclared) or armed hostilities or other national or international calamity or one or more acts of terrorism or failure of energy sources or distribution facilities. (54) “ GDPR ” shall have the meaning set forth in the definition of “Data Protection Laws”. (55) “ General Dispute Notice ” shall have the meaning set forth in Section 8.1(b)(i) . (56) “ General Negotiation Period ” shall have the meaning set forth in Section 8.1(b)(i) . (57) “ Governmental Entity ” shall mean any nation or government, any state, municipality or other political subdivision thereof and any entity, body, agency, commission, department, board, bureau or court, whether domestic, foreign, multinational or supranational exercising executive, legislative, judicial, regulatory, self-regulatory or administrative functions of or pertaining to government and any executive official thereof. (58) “ Group ” shall mean (a) with respect to SpinCo, the SpinCo Group, and (b) with respect to RemainCo, the RemainCo Group. (59) “ Guaranty Release ” shall have the meaning set forth in Section 2.10(b) . (60) “ Hazardous Substances ” shall mean (a) any substances defined, listed, classified or regulated as “hazardous substances,” “hazardous wastes,” “hazardous materials,” “extremely hazardous wastes,” “restricted hazardous wastes,” “toxic substances,” “pollutants,” “solid wastes,” “contaminants,” “radioactive materials,” “petroleum,” “oils” or designations of similar import under any Environmental Law, or (b) any other chemical, material or substance for which standards of conduct are, or liability can be, imposed under any Environmental Law, including per- or polyfluoroalkyl substances. (61) “ Indebtedness ” shall mean, with respect to any Person, (a) the principal value, prepayment and redemption premiums and penalties and other breakage costs (if any), unpaid fees and other monetary obligations (including interest) in respect of any indebtedness for borrowed money, whether short term (including overdrawn bank accounts) or long term, and all obligations evidenced by bonds, debentures, notes, other debt securities or similar instruments, (b) any indebtedness arising under any capital leases (excluding any real estate leases), whether short term or long term, (c) all liabilities secured by any Security Interest on any assets of such Person, (d) all liabilities under any interest rate protection agreement, interest rate future agreement, interest rate option agreement, interest rate swap agreement or other similar agreement designed to protect such Person against fluctuations in interest rates, (e) all interest bearing indebtedness for the deferred purchase price of property or services, (f) all liabilities under any Credit Support Instruments, (g) all interest, fees and other expenses owed with respect to indebtedness described in the foregoing clauses (a) through (f) , and (h) without duplication, all guarantees of indebtedness referred to in the foregoing clauses (a) through (g) . (62) “ Indemnifiable Loss ” and “ Indemnifiable Losses ” shall mean any and all Damages, losses, deficiencies, Liabilities, obligations, penalties, judgments, settlements, claims, payments, fines, interest, costs and expenses (including the costs and expenses of any and all Actions and demands, assessments, 6 TABLE OF CONTENTS judgments, settlements and compromises relating thereto and the reasonable costs and expenses of attorneys’, accountants’, consultants’ and other professionals’ fees and expenses incurred in the investigation or defense thereof or the enforcement of rights hereunder). (63) “ Indemnifying Party ” shall have the meaning set forth in Section 6.4(a) . (64) “ Indemnitee ” shall have the meaning set forth in Section 6.4(a) . (65) “ Indemnity Payment ” shall have the meaning set forth in Section 6.8(a) . (66) “ Information ” shall mean information, content, and data (including Personal Data) in written, oral, electronic, computerized, digital or other tangible or intangible media, including (a) books and records, whether accounting, legal or otherwise; ledgers, studies, reports, surveys, designs, specifications, drawings, blueprints, diagrams, models, prototypes, samples and flow charts; marketing plans, customer names and information (including prospects); technical information, including such information relating to the design, operation, maintenance, testing, test results, development, and manufacture of any Party’s or its Group’s products or facilities (including product or facility specifications and documentation; engineering, design, and manufacturing drawings, diagrams, layouts, maps and illustrations; formulations and material specifications; benchmark tests; quality assurance policies, procedures and specifications; maintenance and inspection procedures and records; evaluation and/or validation studies; process control and/or shop-floor control strategy, logic or algorithms; assembly code, Software, firmware, programming data, databases, and all information referred to in the same); product costs, margins and pricing; product marketing studies and strategies; product stewardship and safety; all other Know-How related to research and development; communications, correspondence, materials, product literature, artwork, files and documents; (b) information contained in Patents and Know-How; and (c) financial and business information, including earnings reports and forecasts, macro-economic reports and forecasts, all cost information (including supplier records and lists), sales and pricing data, business plans, market evaluations, surveys, credit-related information, and other such information as may be needed for reasonable compliance with reporting, disclosure, filing or other requirements, including under applicable securities laws or regulations of securities exchanges. (67) “ Insurance Proceeds ” shall mean those monies (a) received by an insured from an insurer or (b) paid by an insurer on behalf of an insured, in either case net of any applicable premium adjustment, retrospectively-rated premium, deductible, retention or cost of reserve paid or held by or for the benefit of such insured. (68) “ Intellectual Property ” shall mean any and all rights (created or arising in any jurisdiction anywhere in the world, whether registered or not, and whether statutory, common law, or otherwise) to the extent arising from or related to intellectual property, including (a) Patents, (b) Trademarks, (c) Copyrights, (d) rights in Know-How, (e) rights in Software and data, (f) all other intellectual property or proprietary rights, (g) all registrations and applications for registration of any of the foregoing clauses (a) through (f) , and (h) all actions and rights to sue at law or in equity for any past, present or future infringement, misappropriation or other violation of any of the foregoing. (69) “ Internal Control Audit and Management Assessments ” shall have the meaning set forth in Section 5.1(b) . (70) “ Internal Reorganization ” shall have the meaning set forth in the recitals hereto. (71) “ IP Cross-License Agreement ” shall mean that certain Intellectual Property Cross-License Agreement to be entered into on or shortly following the date hereof (but in any case prior to the Distribution) by and between members of each Group, substantially in the form attached hereto as Exhibit B . (72) [Reserved] (73) “ IT Assets ” shall mean all Software, computer systems, telecommunications equipment (including any cell phones, laptops and other mobile devices), databases, internet protocol addresses, data rights and documentation, reference, resource and training materials relating thereto, and all Contracts (including Contract rights) relating to any of the foregoing (including Software license agreements, source code escrow agreements, support and maintenance agreements, electronic database access contracts, domain name registration agreements, website hosting agreements, Software or website development agreements, 7 TABLE OF CONTENTS outsourcing agreements, service provider agreements, interconnection agreements, permits, radio licenses and telecommunications agreements), in each case, excluding any Know-How contained therein that is not intrinsically related to the operation or maintenance of such IT Assets. (74) “ IT Contracts ” shall mean all Contracts (including Contract rights) relating to any IT Assets (including Software license agreements, source code escrow agreements, support and maintenance agreements, electronic database access contracts, domain name registration agreements, website hosting agreements, Software or website development agreements, outsourcing agreements, service provider agreements, interconnection agreements, Permits, radio licenses and telecommunications agreements). (75) “ Know-How ” shall mean all confidential or proprietary information, including trade secrets, know-how and technical data, including any that comprise financial, business, scientific, technical, economic or engineering information and instructions, including any confidential or proprietary raw materials, material lists, raw material specifications, manufacturing or production files or specifications, plans, drawings, blueprints, design tools, quality assurance and control procedures, simulation capability, research data, manuals, compilations, reports, including technical reports and research reports, analyses, formulas, formulations, designs, prototypes, methods, techniques, processes, rights in research, development, manufacturing, financial, marketing and business data, pricing and cost information, customer and supplier lists and information, procedures, inventions and invention disclosure documents, in each case, other than published Patents. (76) “ Law ” shall mean any U.S. or non-U.S. federal, national, supranational, state, provincial, local or similar statute, constitution, law, ordinance, regulation, rule, code, income tax treaty, order, requirement or rule of law (including common law) or other binding directives promulgated, issued, entered into or taken by any Governmental Entity. (77) “ Liabilities ” shall mean any and all Indebtedness, liabilities, costs, expenses, interest and obligations, whether accrued or fixed, absolute or contingent, matured or unmatured, known or unknown, foreseen or unforeseen, reserved or unreserved, or determined or determinable, including those arising under any Law (including Environmental Law), Action, whether asserted or unasserted, or order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Entity and those arising under any Contract or any fines, Damages or equitable relief which may be imposed and including all costs and expenses related thereto. (78) “ Liable Party ” shall have the meaning set forth in Section 2.9(b) . (79) “ Mixed Contract ” shall mean any Contract to which any member of the RemainCo Group or SpinCo Group is party that is related to both the SpinCo Business, on the one hand, and the RemainCo Business, on the other hand (in each case, other than in a de minimis respect). (80) “ Negotiation Period ” shall mean the General Negotiation Period. (81) “ Non-Assumable Third Party Claims ” shall have the meaning set forth in Section 6.4(b) . (82) “ Non-FedEx Insurance Policies ” shall have the meaning set forth in Section 9.7(a) . (83) “ Non-Shared Contract ” shall mean any Mixed Contract that is an IT Asset, IT Contract, a RemainCo Insurance Policy or set forth on Schedule 1.1(83) . (84) “ Non-Transferred Permit ” shall have the meaning set forth in Section 5.5(a) . (85) “ Notice Recipient ” shall have the meaning set forth in Section 2.2(d)(vi) . (86) “ Notifying Party ” shall have the meaning set forth in Section 2.2(d)(vi) . (87) “ NYSE ” shall mean the New York Stock Exchange. (88) “ Other Party ” shall have the meaning set forth in Section 2.9(a) . (89) “ Other Party’s Auditors ” shall have the meaning set forth in Section 5.1(b) . (90) “ Other Surviving Intergroup Accounts ” shall have the meaning set forth in Section 2.3 . 8 TABLE OF CONTENTS (91) “ Partial Assignment ” shall have the meaning set forth in Section 2.2(d)(i) . (92) “ Party ” or “ Parties ” shall have the meaning set forth in the preamble hereto. (93) “ Patent ” shall mean patents, patent applications (including patents issued thereon) and statutory invention registrations, patents of importation, certificates of addition, design patents and utility models, including reissues, divisionals, continuations, continuations-in-part, extensions, renewals and reexaminations thereof. (94) “ Permit Transferee ” shall mean SpinCo or RemainCo, or another member of their respective Group, that requires, as a result of the transactions contemplated by this Agreement, a Permit, including any Environmental Permit, to be transferred or issued to it with respect to the properties, businesses, and operations being conveyed or Transferred to it in accordance with this Agreement. (95) “ Permit Transferor ” shall mean each of SpinCo or RemainCo or another member of its respective Group, as applicable, that currently holds a Permit, including any Environmental Permit, that as a result of the transactions contemplated by this Agreement, must be transferred, or in respect of which a new Permit must be issued, to a member of the SpinCo Group or RemainCo Group, or a relevant subsidiary, in connection with the transfer of any properties, businesses, or operations of the SpinCo Group or RemainCo Group, respectively, in accordance with this Agreement. (96) “ Permits ” shall mean permits, approvals, authorizations, consents (including quotas), licenses, registrations, exemptions or certificates issued by any Governmental Entity (other than Registrations, which are addressed separately). (97) “ Person ” shall mean any natural person, firm, individual, corporation, business trust, joint venture, association, bank, land trust, trust company, company, limited liability company, partnership or other organization or entity, whether incorporated or unincorporated, or any Governmental Entity. (98) “ Personal Data ” shall mean (a) any information that can identify, relate to, describe, be associated with, or be reasonably capable of being associated with a particular individual, and (b) any information that constitutes “personal information,” “personal data,” “personally identifiable information” or other corollary term under Data Protection Laws. (99) “ Personal Data Breach ” shall mean the accidental or unlawful destruction, loss, alteration, unauthorized disclosure, exfiltration, or theft of, or access to, or other Processing of, Personal Data, or other corollary terms under Data Protection Laws. (100) “ Privilege ” shall have the meaning set forth in Section 7.7(a) . (101) “ Privileged Information ” shall have the meaning set forth in Section 7.7(a) . (102) “ Processing ” (and its cognates) shall mean, in addition to any definition for any corollary term provided by Data Protection Laws, any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. (103) “ Public Reports ” shall have the meaning set forth in Section 5.1(d) . (104) “ Records ” shall mean any Contracts, documents, books, records or files. (105) “ Registrations ” shall mean all registrations, consents, approvals, licenses or other authorizations required by applicable Law and/or granted by or from any Governmental Entity which permit the manufacture for commercial sale, sale or distribution of a product. (106) “ Release ” shall mean any release, spill, emission, discharge, leaking, pumping, injection, deposit, disposal, dispersal, leaching or migration into the indoor or outdoor environment (including ambient air, surface water, groundwater and surface or subsurface strata) or into or out of any property, including the movement of Hazardous Substances through or in the air, soil, surface water, groundwater or property. 9 TABLE OF CONTENTS (107) “ RemainCo ” shall have the meaning set forth in the preamble hereto. (108) “ RemainCo Accounts ” shall have the meaning set forth in Section 2.11(a) . (109) “ RemainCo Assets ” shall mean any and all right, title and interest in and to any and all Assets of any member of (x) the SpinCo Group or (y) the RemainCo Group, in each case, at the time of the Distribution and other than the SpinCo Assets, including, but not limited to, those Assets specified below in clauses (i) – (vii) (such specified Assets, the “ Specified RemainCo Assets ”) ( provided , however , that, in any case, to the extent that certain Assets are allocated to RemainCo pursuant to the terms of the Tax Matters Agreement and the Employee Matters Agreement, such Assets shall be governed by the terms of the Tax Matters Agreement and the Employee Matters Agreement as well as the terms of this Agreement, unless such terms of this Agreement conflict with the terms of the Tax Matters Agreement or the Employee Matters Agreement, as applicable, in which case the terms of the Tax Matters Agreement and the Employee Matters Agreement shall apply): (i) (A) all interests in the capital stock of, or any other equity interests in the members of the RemainCo Group (other than RemainCo), (B) all interests in the capital stock of, or any other equity, partnership, membership, joint venture and similar interests in the Persons set forth on Schedule 1.1(109)(i)(B) under the caption “Joint Ventures and Minority Interests” (the “ RemainCo Joint Ventures and Minority Investments ”), in each case ( clauses (A) and (B) ), including any and all rights related thereto; (ii) the Assets set forth on Schedule 1.1(109)(ii) ; (iii) any and all rights and interests of the RemainCo Group under this Agreement; (iv) other than the SpinCo Contracts, the SpinCo Shared Contracts and any IT Contracts, any and all Contracts to which RemainCo or any of its Subsidiaries is a party or by which it or any of its Subsidiaries or any of their respective Assets is bound, whether or not in writing, including those set forth on Schedule 1.1(109)(iv) ; provided , however , that any RemainCo Shared Contracts shall be subject to Section 2.2(d) ; (v) any and all Intellectual Property (excluding IT Assets and IT Contracts, which for clarity are governed by Section 1.1(109)(vi) ) owned by RemainCo or SpinCo, or any of their respective Affiliates, that is (A) not a Specified SpinCo Asset, (B) a RemainCo House Mark or (C) set forth on Schedule 1.1(109)(v) ; (vi) any and all IT Assets and IT Contracts owned, licensed to or by, or held by RemainCo or SpinCo, or any of their respective Affiliates, that are (A) not Specified SpinCo Assets or (B) set forth on Schedule 1.1(109)(vi) ; and (vii) any and all Assets in respect of accruals, counterclaims, insurance claims, rights to coverage under applicable insurance policies, warranties, contractual indemnities, control rights and other rights similar to the foregoing, in each case, to the extent related to any RemainCo Liability, including those set forth on Schedule 1.1(109)(vii) . Notwithstanding anything to the contrary herein, this Agreement (except to the extent expressly set forth in Article IX herein) and the Ancillary Agreements do not purport to transfer ownership of any of the Parties’ insurance policies, and any assignment of rights to coverage under such insurance policies is governed by Article IX herein. (110) “ RemainCo Business ” shall mean all businesses, operations and activities (whether covered independently or in association with one or more third parties through a partnership, joint venture or other mutual enterprise) other than the SpinCo Business, in each case as conducted prior to the Distribution Date by any member of the SpinCo Group or RemainCo Group (or any of their respective predecessors). (111) “ RemainCo Common Stock ” shall mean the shares of common stock, par value $0.10 per share, of RemainCo. (112) “ RemainCo Counsel ” shall have the meaning set forth in Section 7.9 . 10 TABLE OF CONTENTS (113) “ RemainCo CSIs ” shall have the meaning set forth in Section 2.10(d) . (114) “ RemainCo Group ” shall mean (a) RemainCo, (b) each Person (other than any member of the SpinCo Group) that is a direct or indirect Subsidiary of RemainCo immediately prior to the Distribution (but after giving effect to the Internal Reorganization), and (c) each Person that becomes a Subsidiary of RemainCo following the Distribution; provided that in each case the RemainCo Group shall not include the Persons on Schedule 1.1(149) . (115) “ RemainCo House Marks ” shall mean the Trademarks “FedEx,” “FedEx Freight,” the FedEx logo, the FedEx Sans font and the FedEx purple and orange trade dress, and any and all derivatives, abbreviations, translations, transliterations, localizations and other variations of any of the foregoing, and any Trademark containing any of the foregoing, and any confusingly similar Trademarks. (116) “ RemainCo Indemnitees ” shall mean each member of the RemainCo Group and each of their Affiliates from and after the Effective Time and each member of the RemainCo Group’s and their respective current, former and future Affiliates’ respective directors, officers, employees and agents and each of the heirs, executors, successors and assigns of any of the foregoing. (117) “ RemainCo Insurance Policies ” shall have the meaning set forth in Section 9.1(a) . (118) “ RemainCo Liabilities ” shall mean any and all Liabilities of any member of (x) the SpinCo Group or (y) the RemainCo Group, in each case, at the time of the Distribution and other than the SpinCo Liabilities, including, but not limited to, those Liabilities specified below in clauses (i) – (vii) (such specified Liabilities, the “ Specified RemainCo Liabilities ”), in each case, regardless of (1) when or where such Liabilities arose or arise, (2) where or against whom such Liabilities are asserted or determined, (3) whether arising from or alleged to arise from negligence, gross negligence, recklessness, violation of Law, fraud or misrepresentation by any member of the SpinCo Group or RemainCo Group, as the case may be, or any of their past or present respective directors, officers, employees, agents, Subsidiaries or Affiliates and (4) which entity is named in any Action associated with any Liability ( provided , however , that, in any case, to the extent that certain Liabilities are allocated to RemainCo pursuant to the terms of the Tax Matters Agreement and the Employee Matters Agreement, such Liabilities shall be governed by the terms of the Tax Matters Agreement and the Employee Matters Agreement as well as the terms of this Agreement, unless such terms of this Agreement conflict with the terms of the Tax Matters Agreement or the Employee Matters Agreement, as applicable, in which case the terms of the Tax Matters Agreement and the Employee Matters Agreement shall apply): (i) any and all Liabilities that are expressly Assumed by or allocated to the RemainCo Group pursuant to this Agreement or any Ancillary Agreement, including any obligations and Liabilities of any member of the RemainCo Group under this Agreement or any Ancillary Agreement, including those pursuant to Section 10.5 hereof; (ii) any and all Liabilities (including under applicable federal and state securities Laws) relating to, arising out of or resulting from statements expressly relating to the RemainCo Business in (A) the Distribution Disclosure Documents, including the SpinCo Form 10, filed or furnished with the Commission in connection with the Distribution or (B) the Financing Disclosure Documents; (iii) any of the Liabilities set forth on Schedule 1.1(118)(iii) ; (iv) any and all Liabilities related to, arising out of or resulting from the Actions set forth on Schedule 1.1(118)(iv) to the extent related to the RemainCo Business or the RemainCo Assets; (v) any and all Liabilities relating to, arising out of or resulting from any occurrence actually or allegedly existing or occurring, or is deemed to have existed or occurred, at or prior to the Effective Time that have been, will be or would reasonably be expected to have been submitted for coverage (or would have been submitted for coverage but for any applicable deductible or retention), in each case, in whole or in part, at any time under any of the Assigned SpinCo Insurance Policies (the “ Specified Insured Liabilities ”); (vi) any and all Liabilities for Indebtedness of the type described in clauses (a) , (d) and (g) (but in case of clause (g) solely with respect to clauses (a) and (d) ) of the definition of “Indebtedness” of 11 TABLE OF CONTENTS RemainCo or any of its Subsidiaries that was incurred by any member of the RemainCo Group (and any such Indebtedness guaranteed by any of RemainCo’s Subsidiaries that is a member of the RemainCo Group), including those set forth on Schedule 1.1(118)(vi) ; and (vii) any and all Liabilities relating to, arising out of or resulting from any (x) indemnification obligations to any current or former director or officer of the RemainCo Group (other than any Liability of any current or former director or officer of the RemainCo Group under the securities laws with respect to the Distribution Disclosure Documents or the Financing Disclosure Documents) and/or (y) ownership of the RemainCo Joint Ventures and Minority Investments, including any Liabilities relating to, arising out of or resulting from any credit agreement, guarantee, indemnity or Credit Support Instrument given or obtained for the benefit of any RemainCo Joint Venture and Minority Investment. (119) “ RemainCo Shared Contracts ” shall mean any and all Shared Contracts that are not SpinCo Shared Contracts. (120) “ Remainder SpinCo Shares ” shall have the meaning set forth in the recitals hereto. (121) “ Reorganization Step Plan ” shall mean the step plan set forth on Schedule 1.1(121) . (122) “ Rules ” shall have the meaning set forth in Section 8.1(c) . (123) “ Security Interest ” shall mean any mortgage, security interest, pledge, lien, charge, claim, option, right to acquire, voting or other restriction, right-of-entry, covenant, condition, easement, encroachment, restriction on transfer, or other encumbrance of any nature whatsoever, excluding restrictions on transfer under securities Laws and licenses of Intellectual Property. (124) “ Shared Contract ” shall mean any Mixed Contract that is not a Non-Shared Contract. (125) “ Shared Permit ” shall have the meaning set forth in Section 5.5(a) . (126) “ SOFR ” shall mean the Secured Overnight Financing Rate. (127) “ Software ” shall mean all computer programs (whether in source code, object code, or other form), software implementations of algorithms, and related documentation, including flowcharts and other logic and design diagrams, technical, functional and other specifications, and user and training materials to the extent related to any of the foregoing. (128) “ Specified Claims-Made Insurance Policies ” shall have the meaning set forth in Section 9.4(a). (129) “ Specified Insured Liabilities ” shall have the meaning set forth in the definition of “RemainCo Liabilities.” (130) “ Specified RemainCo Assets ” shall have the meaning set forth in the definition of “RemainCo Assets”. (131) “ Specified RemainCo Liabilities ” shall have the meaning set forth in the definition of “RemainCo Liabilities”. (132) “ Specified SpinCo Assets ” shall have the meaning set forth in the definition of “SpinCo Assets”. (133) “ SpinCo ” shall have the meaning set forth in the preamble hereto. (134) “ SpinCo Accounts ” shall have the meaning set forth in Section 2.11(a) . (135) “ SpinCo Assets ” shall mean any and all right, title and interest in and to the following Assets of any member of (x) the SpinCo Group or (y) the RemainCo Group, in each case, at the time of the Distribution ( provided , however , that, in any case, to the extent that certain Assets are allocated to SpinCo pursuant to the terms of the Tax Matters Agreement and the Employee Matters Agreement, such Assets shall be governed by the terms of the Tax Matters Agreement and the Employee Matters Agreement as well as the terms of this Agreement, unless such terms of this Agreement conflict with the terms of the Tax Matters Agreement 12 TABLE OF CONTENTS or the Employee Matters Agreement, as applicable, in which case the terms of the Tax Matters Agreement and the Employee Matters Agreement shall apply): (i) (A) all interests in the capital stock of, or any other equity interests in each member of the SpinCo Group (other than SpinCo), including those set forth on Schedule 1.1(149) and (B) the interests in the capital stock of, or any other equity, partnership, membership, joint venture and similar interests in the Persons as set forth on Schedule 1.1(135)(i)(B) under the caption “Joint Ventures and Minority Interests” (the “ SpinCo Joint Ventures and Minority Investments ”), in each case ( clauses (A) and (B) ), including any and all rights related thereto; (ii) the Assets set forth on Schedule 1.1(135)(ii) ; (iii) any and all rights and interests of the SpinCo Group under this Agreement; (iv) (A) all rights, title and interest in and to the owned real property set forth on Schedule 1.1(135)(iv)(A) , including, in each case, all land and land improvements, structures, buildings and building improvements, tidelands or other marine leases, other improvements, fixtures, rights of ingress and egress, rights under any covenants, conditions and/or restrictions, all contract rights, if any, relating to the operation of the land or any improvements thereon, all riparian rights, surface and underground water rights, and any and all other water rights pertaining to the land, and any and all licenses, permits, registrations, approvals and authorizations which have been issued by any Governmental Entity related to the land and all easements and rights of way pertaining thereto or accruing to the benefit thereof and appurtenances located thereon or associated therewith (except to the extent otherwise set forth on Schedule 1.1(135)(iv)(A) under the caption “Other Parties in Possession”) (the “ SpinCo Owned Real Property ”) and (B) all rights, title and interest in, and to and under the leases or subleases of the real property set forth on Schedule 1.1(135)(iv)(B) , including, in each case, to the extent provided for in such leases, any land and land improvements, structures, buildings and building improvements, tidelands or other marine leases, other improvements, fixtures, rights of ingress and egress, rights under any covenants, conditions and/or restrictions, all contract rights, if any, relating to the operation of the land or any improvements thereon, all riparian rights, surface and underground water rights, and any and all other water rights pertaining to the land, and any and all licenses, permits, registrations, approvals and authorizations which have been issued by any Governmental Entity related to the land and all easements and rights of way pertaining thereto or accruing to the benefit thereof and appurtenances (except to the extent otherwise set forth on Schedule 1.1(135)(iv)(B) under the caption “Other Parties in Possession”) (the “ SpinCo Leased Real Property ” and together with the SpinCo Owned Real Property, the “ SpinCo Real Property ”); (v) any and all SpinCo Shared Contracts; provided , however , that any such SpinCo Shared Contracts shall be subject to Section 2.2(d) ; (vi) any and all Intellectual Property (excluding IT Assets and IT Contracts, which for clarity are governed by Section 1.1(135)(viii) ) owned by RemainCo or SpinCo, or any of their respective Affiliates, that is (A) a Patent set forth on Schedule 1.1(135)(vi) , (B) Intellectual Property (other than Patents) that is primarily related to, used or held for use in the conduct of the SpinCo Business (excluding the Intellectual Property set forth on Schedule 1.1(109)(v) and the RemainCo House Marks), or (C) set forth on Schedule 1.1(135)(vi) ; (vii) any and all Assets in respect of accruals, counterclaims, insurance claims, rights to coverage under applicable insurance policies, warranties, contractual indemnities, control rights and other rights similar to the foregoing, in each case, to the extent related to any SpinCo Liability, including those set forth on Schedule 1.1(135)(vii) ; (viii) any and all IT Assets and IT Contracts owned, licensed to or by, or held by RemainCo or SpinCo, or any of their respective Affiliates, that are (A) primarily related to, used or held for use in the conduct of the SpinCo Business (excluding IT Assets and IT Contracts set forth on Schedule 1.1(109)(vi) ), or (B) set forth on Schedule 1.1(135)(viii) ; (ix) other than any IT Contracts, any and all SpinCo Contracts; 13 TABLE OF CONTENTS (x) other than Intellectual Property, IT Assets and IT Contracts, any and all (A) Information (subject to the Data Processing and Transfer Agreement) to the extent related to the SpinCo Business or any SpinCo Asset or SpinCo Liability, (B) books and records held at the SpinCo Real Property and (C) corporate or similar legal entity books and records of any Person described in clause (i) of this definition of “SpinCo Assets” (subject to any agreements with third parties as to the ownership of corporate or similar legal entity books and records for any SpinCo Joint Ventures and Minority Investments); (xi) (I) all Cash and Cash Equivalents, notes, interest receivables and other financial assets owned by any member of the SpinCo Group, and (II) all derivative instruments owned by any member of the SpinCo Group; (xii) all accounts and notes receivable to the extent related to the SpinCo Business; (xiii) all credits, prepaid expenses, rebates, deferred charges, advance payments, security deposits and prepaid items, in each case to the extent they are used or held for use in, or arise out of, the operation or conduct of the SpinCo Business (including such portion of any credits, prepaid expenses, rebates, deferred charges, advance payments, security deposits and prepaid items of the RemainCo Group to the extent they are used or held for use in, or arise out of, the operation or conduct of the SpinCo Business), including those set forth on Schedule 1.1(135)(xiii) ; (xiv) any and all Permits, Consents and Registrations, in each case, that are primarily related to, used in or held for use in the conduct of the SpinCo Business, including those set forth on Schedule 1.1(135)(xiv) ; (xv) if and to the extent not addressed by the Assets described in clauses (i) through (xiv) of this definition (such specified Assets, the “ Specified SpinCo Assets ”), and subject to the express terms thereof, any and all Assets primarily related to, used in or held for use in the conduct of the SpinCo Business, including in the following categories, but, in each case, excluding Intellectual Property, IT Assets, IT Contracts and the Specified RemainCo Assets: (a) all tangible personal property and interests therein (including machinery, equipment, tools and vehicles), in each case, that are primarily related to, used in or held for use in the conduct of the SpinCo Business; and (b) all raw materials, works-in-process, supplies, ingredients, inputs, parts, packaging, finished goods and products and other inventories (including any goods, products or other inventories held at any location controlled by a member of either Group or held by a customer on consignment for a member of either Group, any goods, products or other inventories purchased by a member of either Group that are in transit and any goods, products or other inventories sold to or loaned to a customer or third party that are in transit to be returned to a member of either Group), in each case, that are primarily related to, used in or held for use in the conduct of the SpinCo Business. Notwithstanding anything to the contrary herein, this Agreement (except to the extent expressly set forth in Article IX herein) and the Ancillary Agreements do not purport to transfer ownership of any of the Parties’ insurance policies, and any assignment of rights to coverage under such insurance policies is governed by Article IX herein. (136) “ SpinCo Business ” shall mean RemainCo’s less-than-truckload freight transportation services business, including FedEx Freight Direct and LTL Select, and the other businesses, including FedEx Custom Critical, included in RemainCo’s FedEx Freight reporting segment as of immediately prior to the Distribution. (137) “ SpinCo Cash Distribution ” shall mean the cash distribution to be made by SpinCo to RemainCo as set forth on Schedule 1.1(137) . (138) “ SpinCo Cash Proceeds ” shall have the meaning set forth in the recitals hereto. (139) “ SpinCo Cash Proceeds Purge ” shall have the meaning set forth in the recitals hereto. 14 TABLE OF CONTENTS (140) “ SpinCo Common Stock ” shall mean the shares of common stock, par value $0.10 per share, of SpinCo. (141) “ SpinCo Contracts ” shall mean Contracts to which RemainCo or any of its Subsidiaries is a party or by which it or any of its Subsidiaries or any of their respective Assets is bound, whether or not in writing, which fall within any of the following categories: (i) any and all Contracts that relate primarily to the SpinCo Business, the SpinCo Assets and/or the SpinCo Liabilities; and (ii) any and all Contracts set forth on Schedule 1.1(141)(ii) . (142) “ SpinCo Contribution ” means the contribution of SpinCo Assets to SpinCo by RemainCo (as part of the Internal Reorganization and in connection with, or in anticipation of, the Distribution) in exchange for the issuance of SpinCo Common Stock, the Assumption of SpinCo Liabilities from RemainCo, the SpinCo Cash Distribution and the issuance of the SpinCo Exchange Debt. (143) “ SpinCo CSIs ” shall have the meaning set forth in Section 2.10(d) . (144) “ SpinCo Discontinued and/or Divested Operations and Businesses ” shall mean (a) the companies, businesses, business units, product lines or business operations set forth on Schedule 1.1(144) any Discontinued and/or Divested Operations and Businesses that, at the time of sale, transfer, conveyance or other disposition or abandonment, closure, discontinuation or other cessation thereof, were primarily managed by or primarily associated with the SpinCo Business or any portion thereof as then conducted. (145) “ SpinCo Discontinued and/or Divested Operations and Businesses Liabilities ” shall mean any and all Liabilities to the extent arising out of or related to (including any indemnification Liabilities arising under Contracts related to, except for any indemnification Liabilities arising out of, resulting from and/or related to the SpinCo Business, SpinCo Assets, SpinCo Liabilities, RemainCo Business, RemainCo Assets or RemainCo Liabilities) any SpinCo Discontinued and/or Divested Operations and Businesses of any member (at any point in time) of RemainCo (or any of their respective predecessors). (146) “ SpinCo Exchange Debt ” shall mean debt instruments of SpinCo to be issued to RemainCo, on terms and conditions determined by RemainCo, as part of the consideration for the assets to be transferred to SpinCo by RemainCo pursuant to the SpinCo Contribution. (147) “ SpinCo Financing Arrangements ” shall mean the financing arrangements described in Schedule 1.1(147) . (148) “ SpinCo Form 10 ” shall mean the registration statement on Form 10 (including the SpinCo Information Statement) filed by SpinCo with the Commission in connection with the Distribution, including any amendment or supplement thereto. (149) “ SpinCo Group ” shall mean (a) SpinCo, (b) each Person (other than any member of the RemainCo Group) that is a direct or indirect Subsidiary of SpinCo immediately prior to the Distribution (but after giving effect to the Internal Reorganization), which shall include those Persons identified as such on Schedule 1.1(149) under the caption “Subsidiaries”, and (c) each Person that becomes a Subsidiary of SpinCo following the Distribution. (150) “ SpinCo Indemnitees ” shall mean each member of the SpinCo Group and each of their Affiliates from and after the Effective Time and each member of the SpinCo Group’s and their respective current, former and future Affiliates’ respective directors, officers, employees and agents and each of the heirs, executors, successors and assigns of any of the foregoing. (151) “ SpinCo Information Statement ” shall mean the Information Statement substantially in the form attached as an exhibit to the SpinCo Form 10 sent to the holders of shares of RemainCo Common Stock in connection with the Distribution, including any amendment or supplement thereto. (152) “ SpinCo Leased Real Property ” shall have the meaning set forth in the definition of “SpinCo Assets”. 15 TABLE OF CONTENTS (153) “ SpinCo Liabilities ” shall mean any and all Liabilities of any member of (x) the SpinCo Group or (y) the RemainCo Group, in each case, at the time of the Distribution and in the following categories (excluding Specified Insured Liabilities), regardless of (1) when or where such Liabilities arose or arise, (2) where or against whom such Liabilities are asserted or determined, (3) whether arising from or alleged to arise from negligence, gross negligence, recklessness, violation of Law, fraud or misrepresentation by any member of the SpinCo Group or RemainCo Group, as the case may be, or any of their past or present respective directors, officers, employees, agents, Subsidiaries or Affiliates and (4) which entity is named in any Action associated with any Liability ( provided , however , that, in any case, to the extent that certain Liabilities are allocated to SpinCo pursuant to the terms of the Tax Matters Agreement and the Employee Matters Agreement, such Liabilities shall be governed by the terms of the Tax Matters Agreement and the Employee Matters Agreement as well as the terms of this Agreement, unless such terms of this Agreement conflict with the terms of the Tax Matters Agreement or the Employee Matters Agreement, as applicable, in which case the terms of the Tax Matters Agreement and the Employee Matters Agreement shall apply): (i) any and all Liabilities that are expressly Assumed by or allocated to the SpinCo Group pursuant to this Agreement or any Ancillary Agreement, including any obligations and Liabilities of any member of the SpinCo Group under this Agreement or any Ancillary Agreement, including those pursuant to Section 10.5 hereof; (ii) any and all Liabilities (including under applicable federal and state securities Laws) relating to, arising out of or resulting from (A) the Distribution Disclosure Documents, including the SpinCo Form 10, filed or furnished with the Commission in connection with the Distribution, (B) the Financing Disclosure Documents in connection with any offer for sale or registration of the Transfer or distribution of securities or indebtedness of the SpinCo Group, including in connection with the SpinCo Financing Arrangements, except, in each of clauses (A) and (B) , for statements expressly relating to the RemainCo Business, or (C) the SpinCo Financing Arrangements; (iii) any of the Liabilities set forth on Schedule 1.1(153)(iii) ; (iv) any and all SpinCo Discontinued and/or Divested Operations and Businesses Liabilities; (v) any and all Liabilities relating to, arising out of or resulting from any services provided or being provided to, on behalf of or for the benefit of, the SpinCo Group, regardless of whether a member of the RemainCo Group or SpinCo Group, or their respective personnel, procured or provided or is procuring or providing such services, including any services provided in connection with the audit, preparation, printing, filing, delivery and/or public dissemination of any financial statements of the SpinCo Group; (vi) any and all Liabilities for Indebtedness of the type described in clauses (a) , (d) and (g) (but in case of clause (g) solely with respect to clauses (a) and (d) ) of the definition of “Indebtedness” of RemainCo or any of its Subsidiaries that was incurred by any member of the SpinCo Group (and any such Indebtedness guaranteed by any of RemainCo’s Subsidiaries that is a member of the SpinCo Group), including those set forth on Schedule 1.1(153)(vi) ; (vii) any and all checks issued but not drawn and accounts payable to the extent related to the SpinCo Business; (viii) any and all Liabilities relating to, arising out of or resulting from any (x) indemnification obligations to any current or former director or officer of the SpinCo Group and/or (y) ownership of the SpinCo Joint Ventures and Minority Investments, including any Liabilities relating to, arising out of or resulting from any credit agreement, guarantee, indemnity or Credit Support Instrument given or obtained for the benefit of any SpinCo Joint Venture and Minority Investment; (ix) any and all Liabilities related to, arising out of or resulting from (a) the Actions set forth on Schedule 1.1(153)(ix)(a) and (b) the Actions set forth on Schedule 1.1(118)(iv) , but in the case of this clause (b), to the extent related to the SpinCo Business or the SpinCo Assets; (x) if and to the extent not addressed by the Liabilities described in clauses (i) through (ix) of this definition, any and all Liabilities to the extent relating to, arising out of or resulting from the SpinCo Business or the SpinCo Assets (in each case, excluding the Specified RemainCo Liabilities); and 16 TABLE OF CONTENTS (xi) any and all Liabilities relating to, arising out of or resulting from any shipment of goods by the SpinCo Group (the “ Specified Cargo Liabilities ”). (154) “ SpinCo Owned Real Property ” shall have the meaning set forth in the definition of “SpinCo Assets”. (155) “ SpinCo Real Property ” shall have the meaning set forth in the definition of “SpinCo Assets”. (156) “ SpinCo Shared Contracts ” shall mean any and all Shared Contracts that are primarily related to the SpinCo Business, including those set forth on Schedule 1.1(156) . (157) “ Standard Rate ” shall mean, in reference to any outstanding payment, SOFR (in effect on the date on which such payment was due) plus three percent (3%) per annum 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; provided , however , in the event that SOFR is no longer commonly accepted by market participants on the date of such payment, then an alternative floating rate index that is commonly accepted by market participants, which SpinCo and RemainCo shall jointly determine, each acting in good faith. (158) “ Stockholder and Registration Rights Agreement ” shall mean the Stockholder and Registration Rights Agreement to be entered into on or shortly following the date hereof (but in any case prior to the Distribution) by and between members of each Group, substantially in the form attached hereto as Exhibit C . (159) “ Subsidiary ” shall mean with respect to any Person (a) a corporation, greater than fifty percent (50%) of the voting or capital stock of which is, as of the time in question, directly or indirectly owned by such Person and (b) any other partnership, joint venture, association, joint stock company, trust, unincorporated organization or other entity in which such Person, directly or indirectly, owns greater than fifty percent (50%) of the equity or economic interest thereof or has the power to elect or direct the election of greater than fifty percent (50%) of the members of the governing body of such entity or otherwise has control over such entity ( e.g. , as the managing partner of a partnership); provided that Subsidiaries shall not include the SpinCo Joint Ventures and Minority Investments or the RemainCo Joint Ventures and Minority Investments. (160) “ Tax ” or “ Taxes ” shall have the meaning set forth in the Tax Matters Agreement. (161) “ Tax Attributes ” shall have the meaning set forth in the Tax Matters Agreement. (162) “ Tax Contest ” shall have the meaning set forth in the Tax Matters Agreement. (163) “ Tax Matters Agreement ” shall mean the Tax Matters Agreement to be entered into on or shortly following the date hereof (but in any case prior to the Distribution) by and between members of each Group, substantially in the form attached hereto as Exhibit D . (164) “ Tax Record ” shall have the meaning set forth in the Tax Matters Agreement. (165) “ Tax Return ” shall have the meaning set forth in the Tax Matters Agreement. (166) “ Taxing Authority ” shall have the meaning set forth in the Tax Matters Agreement. (167) “ Third Party Claim ” shall have the meaning set forth in Section 6.4(a) . (168) “ Third Party Proceeds ” shall have the meaning set forth in Section 6.8(a) . (169) “ Trademark License Agreement ” shall mean that certain Trademark License Agreement to be entered into on or shortly following the date hereof (but in any case prior to the Distribution) by and between members of each Group, substantially in the form attached hereto as Exhibit E . (170) “ Trademarks ” shall mean trademarks, certification marks, service marks, trade names, domain names, favicons, social media addresses, service names, trade dress and logos, and other similar designations of source or origin, including all goodwill associated therewith, in each case whether or not registered, and registrations and applications for registration thereof, and all reissues, extensions and renewals of any of the foregoing. 17 TABLE OF CONTENTS (171) “ Transfer ” shall have the meaning set forth in Section 2.2(b)(i) and the term “ Transferred ” shall have its correlative meaning. (172) “ Transfer Taxes ” shall have the meaning set forth in the Tax Matters Agreement. (173) “ Transition Services Agreement ” shall mean that certain Transition Services Agreement to be entered into on or shortly following the date hereof (but in any case prior to the Distribution) by and between members of each Group, substantially in the form attached hereto as Exhibit F . (174) “ Treasury Regulations ” shall have the meaning set forth in the Tax Matters Agreement. (175) “ UK GDPR ” shall have the meaning set forth in the definition of “Data Protection Laws”. Section 1.2 References; Interpretation . For the purposes of this Agreement, (a) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (b) references to the terms Article, Section, paragraph, clause, Exhibit and Schedule are references to the Articles, Sections, paragraphs, clauses, Exhibits and Schedules to this Agreement unless otherwise specified; (c) the terms “hereof,” “herein,” “hereby,” “hereto,” and derivative or similar words refer to this entire Agreement, including the Schedules and Exhibits hereto; (d) references to “$” shall mean U.S. dollars; (e) the word “including” and words of similar import when used in this Agreement shall mean “including without limitation,” unless otherwise specified; (f) the word “or” shall not be exclusive (unless the context indicates otherwise); (g) references to “written” or “in writing” include in electronic form; (h) the Parties have each participated in the negotiation and drafting of this Agreement, and except as otherwise stated herein, if an ambiguity or question of interpretation should arise, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or burdening any Party by virtue of the authorship of any of the provisions in this Agreement; (i) a reference to any Person includes such Person’s successors and permitted assigns; (j) any reference to “days” means calendar days unless Business Days are expressly specified; (k) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded and if the last day of such period is not a Business Day, the period shall end on the next succeeding Business Day; (l) any statute or Contract defined or referred to herein means such statute or Contract as from time to time amended, modified or supplemented, unless otherwise specifically indicated; (m) the use of the phrases “the date of this Agreement”, “the date hereof”, “of even date herewith” and terms of similar import shall be deemed to refer to the date set forth in the preamble to this Agreement; (n) the phrase “ordinary course of business” shall be deemed to be followed by the words “consistent with past practice” whether or not such words actually follow such phrase; (o) where a word or phrase is defined herein, each of its other grammatical forms shall have a corresponding meaning; and (p) any consent given by any party hereto pursuant to this Agreement shall be valid only if contained in a written instrument signed by such Party. Unless the context requires otherwise, references in this Agreement to “ SpinCo ” shall also be deemed to refer to the applicable member of the SpinCo Group, references to “RemainCo” shall also be deemed to refer to the applicable member of the RemainCo Group and, in connection therewith, any references to actions or omissions to be taken, or refrained from being taken, as the case may be, by SpinCo or RemainCo shall be deemed to require SpinCo or RemainCo, as the case may be, to cause the applicable members of the SpinCo Group or the RemainCo Group, respectively, to take, or refrain from taking, any such action. Section 1.3 Effectiveness; Suspension . (a) This Agreement shall be effective as of the time of its execution by the Parties. (b) Notwithstanding Section 1.3(a) above, the provisions of, and the obligations under, this Agreement shall be suspended as between such Parties until the Effective Time, other than for Sections 2.1 , 2.3 , 2.11 , 2.12 , Article III , Article IV , Section 5.5 and Article X , each of which shall be effective as of the execution of this Agreement by the Parties. 18 TABLE OF CONTENTS ARTICLE II THE SEPARATION Section 2.1 General . Subject to the terms and conditions of this Agreement, each Party shall use, and shall cause the other members of its Group and its respective then-Affiliates to use, their respective reasonable best efforts to consummate the transactions contemplated hereby (including the Internal Reorganization), a portion of which have already been implemented prior to the date hereof. Section 2.2 Transfer of Assets; Assumption and Satisfaction of Liabilities . (a) Prior to the Effective Time, the Parties shall and shall cause the other members of their respective Group and their respective then-Affiliates to complete the steps of the Internal Reorganization, including the SpinCo Contribution, in the manner and sequence described in the Reorganization Step Plan. (b) Prior to the Effective Time and, in each case, pursuant to the Conveyancing and Assumption Instruments and, in connection with the Internal Reorganization: (i) Subject to Section 2.2(d) ( Treatment of Shared Contracts ), Section 2.2(e) ( Consents ), and Section 2.5 ( Transfers Not Effected On or Prior to the Effective Time; Transfers Deemed Effective as of the Effective Time ), RemainCo shall, and shall cause the other members of its Group to, as applicable, transfer, contribute, assign and/or convey or cause to be transferred, contributed, assigned and/or conveyed (“ Transfer ”) to SpinCo or another member of the SpinCo Group all of its and the other members of its Group’s right, title and interest in and to the SpinCo Assets and the applicable member(s) of the SpinCo Group, as applicable, shall accept from RemainCo and the applicable members of the RemainCo Group, all of RemainCo’s and the other members of the RemainCo Group’s respective direct or indirect rights, title and interest in and to the SpinCo Assets, respectively; and (ii) Subject to Section 2.2(d) ( Treatment of Shared Contracts ), Section 2.2(e) ( Consents ), and Section 2.5 ( Transfers Not Effected On or Prior to the Effective Time; Transfers Deemed Effective as of the Effective Time ), SpinCo shall, and shall cause the other members of its Group to, as applicable, Transfer to RemainCo or another member of the RemainCo Group all of its and the other members of its Group’s right, title and interest in and to the RemainCo Assets and the applicable member(s) of the RemainCo Group, as applicable, shall accept from SpinCo and the applicable members of the SpinCo Group, all of SpinCo’s and the other members of the SpinCo Group’s respective direct or indirect rights, title and interest in and to the RemainCo Assets, respectively. (c) Assumption of Liabilities . Subject to Section 2.2(d) ( Treatment of Shared Contracts ), Section 2.2(e) ( Consents ), and Section 2.5 ( Transfers Not Effected On or Prior to the Effective Time; Transfers Deemed Effective as of the Effective Time ), (i) RemainCo shall, or shall cause a member of the RemainCo Group to, accept, assume (or, as applicable, retain) and perform, discharge and fulfill, in accordance with their respective terms (“ Assume ”), all of the RemainCo Liabilities and (ii) SpinCo shall, or shall cause a member of the SpinCo Group to, Assume all of the SpinCo Liabilities. (d) Treatment of Shared Contracts . Without limiting the generality of the obligations set forth in Section 2.2(b) : (i) Unless the benefits of a Shared Contract are conveyed to the applicable Party (or member of its Group) pursuant to an Ancillary Agreement, (A) any Contract that is a Shared Contract, shall be assigned in part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended, bifurcated, replicated or otherwise modified prior to, on or after the Effective Time, so that each Party or the members of their respective Groups shall be entitled to the rights and benefits, and shall Assume the related portion of any Liabilities, inuring to their respective Businesses (each, a “ Partial Assignment ”); provided , however , that (x) in no event shall any member of either Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended or otherwise modified) by its terms (including any terms imposing Consents or conditions on an assignment where such Consents or conditions have not been obtained or fulfilled) (including those set forth on Schedule 2.2(d) ) or under applicable Law and (y) if any Shared Contract cannot be so partially assigned by its terms or otherwise, cannot be amended, 19 TABLE OF CONTENTS bifurcated, replicated or otherwise modified, or if such assignment or amendment, bifurcation, replication or modification would impair the benefit the parties thereto derived from such Shared Contract, the Parties shall, and shall cause each of their respective Subsidiaries to, take such other reasonable and permissible actions to cause a member of the RemainCo Group or the SpinCo Group, as the case may be, to, in each case, (I) receive the benefit of that portion of each Shared Contract that relates to the SpinCo Business or the RemainCo Business, as the case may be (in each case, to the extent so related) as if such Shared Contract had been assigned to (or amended or otherwise modified for the benefit of) a member of the applicable Group pursuant to this Section 2.2(d) (including, enforcing on the applicable Group’s behalf any and all of such Group’s rights against such third party under such Shared Contract solely to the extent related to the applicable Group’s respective Business (or applicable portion thereof)) and (II) bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement) as if such Liabilities had been Assumed by a member of the applicable Group pursuant to this Section 2.2(d) , including expenses related to enforcing rights under such Shared Contract against the third party counterparty thereto solely to the extent related to the applicable Group’s respective Business (or applicable portion thereof); and indemnifying each other Group against all Indemnifiable Losses to the extent arising out of any actions (or omissions to act) taken by such other Group with respect to such Shared Contract at the direction of such first Party (except to the extent arising out of or related to gross negligence, fraud or willful misconduct by such other Group) (in the event that any rights in connection with a Force Majeure Event or similar event are exercised under a Shared Contract, the benefits and burdens with respect to such Shared Contract (as modified by such Force Majeure Event or similar event) shall, if reasonably practicable, be shared proportionally or, if not reasonably practicable, in such other manner as would be most equitable, among the Groups related to such Contract (or in any other manner as may be agreed in good faith by the relevant Parties whose Group is related to such contract), in each case, to the extent so related to the SpinCo Business or the RemainCo Business), and (B) to the extent that the Parties cannot effect a Partial Assignment in accordance with this Section 2.2(d) , or cannot implement the arrangements set forth in clause (A) , within one hundred and eighty (180) days of the Distribution Date, the Parties shall use commercially reasonable efforts to, if requested by any Party, seek mutually acceptable alternative arrangements (including subcontracting, sublicensing, subleasing or back-to-back agreement) for the purpose of allocating rights, liabilities and obligations to each Group under such Shared Contract reflecting the principles set forth in clause (A) of this provision (an “ Acceptable Alternative Arrangement ”). (ii) Each Party shall, and shall cause the other members of its Group to, use its commercially reasonable efforts to obtain the required Consents to complete a Partial Assignment of any Shared Contract as contemplated by this Agreement. Notwithstanding anything herein to the contrary, no Partial Assignment of any Shared Contract or Acceptable Alternative Arrangement shall be completed if it would violate any applicable Law or the rights of any third party to such Shared Contract. (iii) To the extent permitted by applicable Law, each of RemainCo and SpinCo shall, and shall cause the members of its respective Group to, (A) treat for all Tax purposes the portion of each Shared Contract inuring to its respective Businesses as Assets owned by, and/or Liabilities of, as applicable, such Party or the members of such Party’s Group, as applicable, not later than the Distribution and (B) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by a change in applicable Tax Law or good faith resolution of a Tax Contest). (iv) With respect to Liabilities pursuant to, under or relating to a Shared Contract to the extent relating to occurrences from and after the Distribution, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or any Ancillary Agreement, be allocated among RemainCo and SpinCo as follows: (A) If such Liability is incurred (x) exclusively in respect of the SpinCo Business, such Liability shall be allocated to SpinCo or the applicable member of its Group, or (y) exclusively in respect of the RemainCo Business, such Liability shall be allocated to RemainCo or the applicable member of its Group; (B) If such Liability cannot be so allocated under clause (A) above, such Liability shall be allocated to RemainCo or SpinCo, as the case may be, based on the relative proportions of total 20 TABLE OF CONTENTS benefit received (over the term of the Shared Contract remaining as of the date of the Distribution) by the SpinCo Business or the RemainCo Business, respectively, under the relevant Shared Contract after the Distribution; and (C) Notwithstanding the foregoing in clauses (A) and (B) above, each of SpinCo or RemainCo shall be responsible for any and all such Liabilities to the extent arising from its (or its Subsidiary’s) breach after the Distribution of the relevant Shared Contract. (v) None of RemainCo, SpinCo or any of the members of their respective Group or their Affiliates shall be required to commence any litigation or offer or pay any money or otherwise grant any accommodation (financial or otherwise) to any third party to (x) obtain any new Contract or Partial Assignment with respect to any Shared Contract, as the case may be or (y) obtain any Consent necessary to enter into an Acceptable Alternative Arrangement; provided , however , any Party to which the benefit of a new Contract, Partial Assignment or Acceptable Alternative Arrangement would inure pursuant to this Section 2.2(d) may request that the Party that is allocated such Shared Contract as a SpinCo Asset or RemainCo Asset commence litigation, which request shall be considered in good faith by such Party; provided , further , that such Party’s good faith determination not to commence litigation shall not in and of itself constitute a breach of this Section 2.2(d)(v) , but the foregoing shall not preclude consideration of a Party’s good faith for purposes of determining compliance with this Section 2.2(d)(v) . (vi) From and after the Effective Time, the Party to whose Group a Shared Contract has been allocated shall not (and shall cause the other members of its Group not to), without the consent of the other Party (such consent not to be unreasonably withheld, conditioned or delayed) (x) waive any rights under such Shared Contract to the extent related to the Business, Assets or Liabilities of such other Party, (y) terminate (or consent to be terminated by the counterparty) such Shared Contract except in connection with (A) the expiration of such Shared Contract in accordance with its terms (it being understood that sending a notice of non-renewal to the counterparty to such Shared Contract in accordance with the terms of such Shared Contract is expressly permitted) or (B) a partial termination of such Shared Contract that would not reasonably be expected to impact any rights under such Shared Contract related to the Business, Assets or Liabilities of such other Party or any of its Subsidiaries, or (z) amend, modify or supplement such Shared Contract in a manner material (relative to the existing rights and obligations related to such other Party’s Business, Assets or Liabilities under such Shared Contract) and adverse to the Business, Assets or Liabilities of such other Party or any of its Subsidiaries. From and after the Effective Time, if a member of a Group (the “ Notice Recipient ”) receives from a counterparty to a Shared Contract a formal notice of breach of such Shared Contract that would reasonably be expected to impact another Group, the Notice Recipient shall provide written notice to the other Party as soon as reasonably practicable (and in no event later than seven (7) Business Days (or earlier if required to avoid material prejudice) following receipt of such notice) and the Parties shall consult with respect to the actions proposed to be taken regarding the alleged breach. If a Group (the “ Notifying Party ”) sends to a counterparty to a Shared Contract a formal notice of breach of such Shared Contract that would reasonably be expected to impact another Group, the Notifying Party shall provide written notice to the other Party as soon as reasonably practicable (and in any event no less than seven (7) Business Days (or earlier if required to avoid material prejudice) prior to sending such notice of breach to the counterparty), and the Parties shall consult with each other regarding such alleged breach. From and after the Effective Time, no Party shall (and shall cause the other members of its Group not to) breach any Shared Contract to the extent such breach would reasonably be expected to result in a loss of rights, or acceleration of obligations, of any member of the other Party’s Group (or related to its Business, Assets or Liabilities under such Shared Contract) pursuant to (I) such Shared Contract, (II) any Partial Assignment related to such Shared Contract or (III) any other Contract with the counterparty to such Shared Contract (or any of its Affiliates) in existence at the time of the Distribution that contains cross-default or similar provisions related to such Shared Contract. (e) Consents . Each Party shall, and shall cause each member of its respective Group to, use its commercially reasonable efforts to obtain the required Consents for the Transfer of any Assets, Contracts, licenses, permits and authorizations issued by any Governmental Entity or parts thereof and related Assumption of Liabilities as contemplated by this Agreement, including those Consents set forth on 21 TABLE OF CONTENTS Schedule 2.2(e) . Notwithstanding anything herein to the contrary, no Contract or other Asset shall be transferred if it would violate applicable Law or, in the case of any Contract, the rights of any third party to such Contract; provided that Sections 2.2(d) and 2.5 , to the extent provided therein, shall apply thereto. (f) Each Party understands and agrees on behalf of itself and each member of its Group that certain of the Transfers referenced in Section 2.2(b) or Assumptions referenced in Section 2.2(c) have heretofore occurred and, as a result, no additional Transfers or Assumptions by any member of the RemainCo Group or SpinCo Group, as applicable, shall be deemed to occur upon the execution of this Agreement with respect thereto. To the extent that a member of the RemainCo Group or the SpinCo Group, as applicable, owns a RemainCo Asset or SpinCo Asset, respectively, as of the Effective Time, there shall be no need for such member to Transfer such Asset in connection with the operation of Section 2.2(b) . Moreover, to the extent that a member of the RemainCo Group or the SpinCo Group, as applicable, is liable for any RemainCo Liability or SpinCo Liability, respectively, at the Effective Time, there shall be no need for such member to Assume such Liability in connection with the operation of Section 2.2(c) . (g) Prior to the Effective Time, as part of the consideration for the assets to be transferred to SpinCo by RemainCo pursuant to the SpinCo Contribution, SpinCo shall make, or cause to be made, the SpinCo Cash Distribution by wire payment of immediately available funds to one or more accounts designated by RemainCo. Section 2.3 Intergroup Accounts . Except as set forth in Section 6.1(b) , any and all intercompany receivables, payables, loans and balances (other than (x) as specifically provided for under this Agreement or under any Ancillary Agreement or (y) as otherwise set forth on Schedule 2.3 (the matters set forth on Schedule 2.3 , the “ Other Surviving Intergroup Accounts ”)) between any member of the RemainCo Group or SpinCo Group, on the one hand, and any member of the other Group, on the other hand, which exist as of immediately prior to the Distribution, shall, prior to the Effective Time, be satisfied and/or settled in full by means of a cash payment, dividend, capital contribution, a combination of the foregoing, or otherwise canceled and terminated or extinguished, and, if not settled prior to such time, shall be deemed terminated and released at such time. The Other Surviving Intergroup Accounts (a) shall be an obligation of the relevant Party (or the relevant member of such Party’s Group), each responsible for fulfilling its (or a member of such Party’s Group’s) obligations in accordance with the terms and conditions applicable to such obligation or if such terms and conditions are not set forth in writing, such obligation shall be satisfied within the payment terms set forth therefor on Schedule 2.3 or thirty (30) days of a written request by the beneficiary of such obligation given to the corresponding obligor thereunder, and (b) shall be for each relevant Party (or the relevant member of such Party’s Group) an obligation to a third party and shall no longer be an intercompany account. Section 2.4 Limitation of Liability; Intergroup Contracts . (a) No Party shall have any Liability to the other Party in the event that any information exchanged or provided pursuant to this Agreement (but excluding any such information included in a Distribution Disclosure Document or Financing Disclosure Document) which is an estimate or forecast, or which is based on an estimate or forecast, is found to be inaccurate. (b) Except as set forth in Section 2.4(c) , no Party or any other member of its Group shall be liable to the other Party or any other member of such other Party’s Group based upon, arising out of or resulting from any Contract, arrangement, course of dealing or understanding existing on or prior to the Distribution Date (other than this Agreement, the Ancillary Agreements and the Other Surviving Intergroup Accounts) and each Party (on behalf of itself and each other member of its Group) hereby terminates any and all Contracts, arrangements, course of dealings or understandings between or among it or any of its other Group members, on the one hand, and the other Party or any of its respective Group members, on the other hand, effective as of the Effective Time (other than this Agreement, the Ancillary Agreements, the Other Surviving Intergroup Accounts, and the Conveyancing and Assumption Instruments, and such Contracts, arrangements, courses of dealing or understandings with respect to goods in transit for which title has not transferred to the RemainCo Group (if in respect of assets that would otherwise be RemainCo Assets) or the SpinCo Group (if in respect of assets that would otherwise be SpinCo Assets) at the time of the Distribution). No such terminated Contract, arrangement, course of dealing or understanding (including any provision thereof which purports to survive termination) shall be of any further force or effect after the 22 TABLE OF CONTENTS Distribution. Each Party shall, and shall cause the other members of its Group to, execute and deliver such agreements, instruments and other papers as may be required to terminate any such Contract, arrangement, course of dealing or understanding pursuant to this Section 2.4(b) if so requested by the other Party. (c) The provisions of Section 2.4(b) shall not apply to any of the following Contracts, arrangements, course of dealings or understandings (or to any of the provisions thereof): any agreements, arrangements, commitments or understandings to which any Person other than the Parties and their respective Affiliates is a Party (it being understood that (x) to the extent that the rights and obligations of the Parties and the members of their respective Groups under any such Contracts constitute SpinCo Assets or SpinCo Liabilities, or RemainCo Assets or RemainCo Liabilities, such Contracts shall be assigned or retained pursuant to this Article II , and (y) the obligations of any member of a Group to the other Group shall be deemed terminated as of time of the Distribution with no further liability to such other Group as a result thereof). (d) If any Contract, arrangement, course of dealing or understanding is terminated pursuant to Section 2.4(b) , and, but for the mistake or oversight of any Party, would have been listed as an Ancillary Agreement or other continuing arrangement on Schedule 1.1(9) and is reasonably necessary for such affected Party to be able to continue to operate its Business in substantially the same manner in which such Businesses were operated prior to the Distribution, then, at the request of such affected Party made within twelve (12) months following the Distribution, the Parties shall negotiate in good faith to determine whether and to what extent (including the terms and conditions relating thereto), if any, notwithstanding such termination, such Contract, arrangement, course of dealing or understanding should continue, or as appropriate, be re-instated, following the Distribution; provided , however , that any Party may determine, in its sole discretion, not to re-instate or otherwise continue any such Contract, arrangement, course of dealing or understanding. Section 2.5 Transfers Not Effected On or Prior to the Effective Time; Transfers Deemed Effective as of the Effective Time . (a) To the extent that any Transfers or Assumptions contemplated by this Article II shall not have been consummated at or prior to the Effective Time, the Parties shall use commercially reasonable efforts to effect such Transfers or Assumptions as promptly following the Effective Time as shall be reasonably practicable. Nothing herein shall be deemed to require or constitute the Transfer of any Assets or the Assumption of any Liabilities which by their terms or operation of Law cannot be Transferred; provided , however , that the Parties and their respective Subsidiaries shall cooperate and use commercially reasonable efforts to seek to obtain, in accordance with applicable Law, any necessary Consents for the Transfer of all Assets and Assumption of all Liabilities contemplated to be Transferred and Assumed pursuant to this Article II to the fullest extent permitted by applicable Law, including the Consents set forth on Schedule 2.2(e) . In the event that any such Transfer of Assets or Assumption of Liabilities has not been consummated, from and after the Effective Time (i) the Party (or relevant member in its Group) retaining such Asset shall thereafter hold (or shall cause such member in its Group to hold) such Asset in trust for the use and benefit of the Party entitled thereto (at the expense of the Party entitled thereto) and (ii) the Party intended to Assume such Liability shall, or shall cause the applicable member of its Group to, pay or reimburse the Party retaining such Liability for all amounts paid or incurred in connection with the retention of such Liability. To the extent the foregoing applies to any Contracts (other than Shared Contracts, which shall be governed solely by Section 2.2(d) ) to be assigned for which any necessary Consents are not received prior to the Effective Time, the treatment of such Contracts shall also be subject to Section 2.9 and Section 2.10 , to the extent applicable. In addition, the Party retaining such Asset or Liability (or relevant member of its Group) shall (or shall cause such member in its Group to) treat, insofar as reasonably possible and to the extent permitted by applicable Law, such Asset or Liability in the ordinary course of business and take such other actions as may be reasonably requested by the Party to which such Asset is to be Transferred or by the Party responsible for Assuming such Liability in order to place such Party, insofar as reasonably possible and to the extent permitted by applicable Law, in the same position as if such Asset or Liability had been Transferred or Assumed as contemplated hereby and so that all the benefits and burdens relating to such Asset or Liability, including possession, use, risk of loss, potential for income and gain, and dominion, control and command over such Asset or Liability, are to inure from and after the Effective Time to the relevant member or members of the RemainCo Group or SpinCo Group entitled to the receipt of such Asset or required to Assume such Liability. In furtherance of the foregoing, each Party agrees (on behalf of itself and each other member of its Group) that, as of the Effective Time, subject to Section 2.2(c) and Section 2.9(b) , each 23 TABLE OF CONTENTS Party and/or each member of its Group shall (A) be deemed to have acquired complete and sole beneficial ownership over all of the Assets, together with all rights, powers and privileges incident thereto, and shall be deemed to have Assumed in accordance with the terms of this Agreement all of the Liabilities, and all duties, obligations and responsibilities incident thereto, which such Party is entitled to acquire or required to Assume pursuant to the terms of this Agreement and (B) (I) enforce at the other Party’s (or relevant member of its Group’s) request, or allow the other Party’s Group to enforce in a commercially reasonable manner, any rights of the Party or its Group under such Assets and Liabilities against any other Persons, (II) not waive any rights related to such Assets or Liabilities to the extent related to the Business, Assets or Liabilities of the other Party’s Group, (III) not terminate (or consent to be terminated by the counterparty) any Contract that constitutes such Asset except in connection with the expiration of such Contract in accordance with its terms, (IV) not amend, modify or supplement any Contract that constitutes such Asset and (V) provide written notice to the other Party as soon as reasonably practicable (and in no event later than seven (7) Business Days (or earlier if required to avoid material prejudice) following receipt) after receipt of any formal notice of breach received from a counterparty to any Contract that constitutes such Asset; provided that the costs and expenses incurred by the responding Party or its Group in respect of any request by the other Party in respect of such Assets or Liabilities shall be borne solely by the requesting Party or its Group. (b) If and when the Consents and/or conditions, the conflict, absence, non-satisfaction, existence or potential violation of which caused the deferral of Transfer of any Asset or deferral of the Assumption of any Liability pursuant to Section 2.5(a) , are obtained or satisfied, the Transfer, assignment, Assumption or novation of the applicable Asset or Liability shall be effected by the applicable Party (or relevant member of its Group) as promptly as reasonably practicable, and in any event within the applicable time set forth beside such Asset or Liability on Schedule 2.5 , without further consideration in accordance with and subject to the terms of this Agreement (including Sections 2.1 and 2.5 ) and/or the applicable Ancillary Agreement, and shall, to the extent possible without the imposition of any undue or otherwise unreasonable cost on any Party, be deemed to have become effective as of the Effective Time; provided that failure to effectuate such Transfer, assignment, Assumption or novation of the applicable Asset or Liability by such time set forth beside such Asset or Liability on Schedule 2.5 shall not relieve any Party (or relevant member of its Group) from any obligation to so Transfer, assign, Assume or novate such Asset or Liability under this Agreement. (c) The Party (or relevant member of its Group) retaining any Asset or Liability due to the deferral of the Transfer of such Asset or the deferral of the Assumption of such Liability pursuant to Section 2.5(a) or otherwise shall (i) not be obligated, in connection with the foregoing, to expend any money unless the necessary funds are advanced, assumed, or agreed in advance to be reimbursed by the Party (or relevant member of its Group) entitled to such Asset or the Person intended to be subject to such Liability, other than reasonable attorneys’ fees and recording or similar or other incidental fees, all of which shall be promptly reimbursed by the Party (or relevant member of its Group) entitled to such Asset or the Person intended to be subject to such Liability and (ii) be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such retained Asset or Liability, as the case may be. Except as otherwise expressly provided herein, none of RemainCo or SpinCo or any of their respective Affiliates shall be required to commence any litigation or offer or pay any money or otherwise grant any accommodation (financial or otherwise) to any third party with respect to any Assets or Liabilities not Transferred as of the Effective Time; provided , however , that any Party to which such Asset or Liability has not been Transferred or Assumed, respectively, due to the deferral of the Transfer of such Asset or the deferral of the Assumption of such Liability, may request that the Party retaining such Asset or Liability commence litigation, which request shall be considered in good faith by the Party retaining such Asset or Liability; provided , further , that a Party’s good faith determination not to commence litigation shall not in and of itself constitute a breach of this Section 2.5(c) , but the foregoing shall not preclude consideration of a Party’s good faith for purposes of determining compliance with this Section 2.5(c) . (d) Notwithstanding anything else set forth in this Section 2.5 to the contrary, (i) neither RemainCo nor any of its Subsidiaries shall be required by this Section 2.5 to take any action that may, in the good faith judgment of RemainCo, (x) result in a violation of any obligation which RemainCo or any such Subsidiary has to any third party or (y) violate applicable Law, and (ii) neither SpinCo nor any of its Subsidiaries shall be 24 TABLE OF CONTENTS required by this Section 2.5 to take any action that may, in the good faith judgment of SpinCo, (x) result in a violation of any obligation which SpinCo or any such Subsidiary has to any third party or (y) violate applicable Law. (e) The failure to obtain a Consent shall not in and of itself constitute a breach of this Agreement; provided that the foregoing shall not preclude consideration of a Party’s efforts in pursuing such Consent for purposes of determining compliance with this Section 2.5 . (f) To the extent permitted by applicable Law, with respect to Assets and Liabilities described in Section 2.5(a) , each of RemainCo and SpinCo shall, and shall cause the members of its respective Group to, (i) treat for all Tax purposes (A) the deferred Assets as assets having been Transferred to and owned by the Party entitled to such Assets not later than the Distribution and (B) the deferred Liabilities as liabilities having been Assumed and owned by the Person intended to be subject to such Liabilities not later than the Distribution and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by a change in applicable Tax Law or good faith resolution of a Tax Contest). Section 2.6 Wrong Pockets; Mail & Other Communications; Payments . (a) Subject to Section 2.2(d) ( Treatment of Shared Contracts ) and Section 2.5 ( Transfers Not Effected On or Prior to the Effective Time; Transfers Deemed Effective as of the Effective Time ), (i) if at any time within thirty-six (36) months after the Distribution Date, any Party discovers that any SpinCo Asset is held by any member of the RemainCo Group or any of its respective then-Affiliates, RemainCo shall, and shall cause the other members of its Group and its and their then-Affiliates to, use their respective reasonable best efforts to promptly procure the Transfer of the relevant SpinCo Asset to SpinCo or an Affiliate of SpinCo designated by SpinCo for no additional consideration; or (ii) if at any time within thirty-six (36) months after the Distribution Date, any Party discovers that any RemainCo Asset is held by any member of the SpinCo Group or any of its then-Affiliates, SpinCo shall, and shall cause the other members, its Group and its and their respective then-Affiliates to, use their respective reasonable best efforts to promptly procure the Transfer of the relevant RemainCo Asset to RemainCo or an Affiliate of RemainCo designated by RemainCo for no additional consideration; provided that in the case of clause (i) , neither RemainCo nor any of its Affiliates, or in the case of clause (ii) , neither SpinCo nor any of its Affiliates, shall be required to commence any litigation or offer or pay any… |
EX-10.1 · tm2616055d2_ex10-1.htm
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EX-10.1 · tm2616055d2_ex10-1.htm EX-10.1 3 tm2616055d2_ex10-1.htm EXHIBIT 10.1 TABLE OF CONTENTS Exhibit 10.1 TRANSITION SERVICES AGREEMENT by and between FEDEX CORPORATION and FEDEX FREIGHT HOLDING COMPANY, INC. Dated as of May 31, 2026 TABLE OF CONTENTS TABLE OF CONTENTS ARTICLE I DEFINITIONS Section 1.1 Definitions 1 Section 1.2 References; Interpretation 2 ARTICLE II SERVICES Section 2.1 Provision of Services 3 Section 2.2 Service Amendments and Additions 5 Section 2.3 Migration Projects 6 Section 2.4 Knowledge Transfer 6 Section 2.5 No Management Authority 6 Section 2.6 Acknowledgment and Representation 6 ARTICLE III ADDITIONAL ARRANGEMENTS Section 3.1 Cooperation and Access 7 Section 3.2 Intellectual Property 8 Section 3.3 Third-Party Agreements 8 ARTICLE IV COMPENSATION Section 4.1 Compensation for Services 8 Section 4.2 Taxes 9 Section 4.3 Payment Terms 9 Section 4.4 DISCLAIMER OF WARRANTIES 10 Section 4.5 Books and Records 10 ARTICLE V CONFIDENTIALITY Section 5.1 Confidential Information 11 Section 5.2 Confidentiality Obligations 11 Section 5.3 Disclosure Required by Law 11 Section 5.4 Disclosure in Connection with Due Diligence 11 ARTICLE VI TERM Section 6.1 Commencement 12 Section 6.2 Service Extension 12 Section 6.3 Termination 12 Section 6.4 Partial Termination 13 Section 6.5 Effect of Termination 13 i TABLE OF CONTENTS ARTICLE VII INDEMNIFICATION; LIMITATION OF LIABILITY Section 7.1 Indemnification by the Service Recipient. 14 Section 7.2 Indemnification by the Service Provider 14 Section 7.3 Indemnification Procedures 14 Section 7.4 Exclusion of Other Remedies 14 Section 7.5 Other Indemnification Obligations Unaffected 14 Section 7.6 Limitation on Liability 15 ARTICLE VIII OTHER COVENANTS Section 8.1 Further Assurances 15 ARTICLE IX DISPUTE RESOLUTION Section 9.1 Disputes 15 ARTICLE X MISCELLANEOUS Section 10.1 Force Majeure 15 Section 10.2 Conflicting Agreements 16 Section 10.3 Relationship of Parties 16 Section 10.4 Assignability 16 Section 10.5 Third-Party Beneficiaries 16 Section 10.6 Notices 16 Section 10.7 Miscellaneous 17 SCHEDULES Schedule A — Services Schedule A-1 Schedule B — Service Coordinators B-1 Schedule C — Excluded Services C-1 Schedule D — Resolution Committee D-1 ii TABLE OF CONTENTS TRANSITION SERVICES AGREEMENT TRANSITION SERVICES AGREEMENT (this “ Agreement ”), dated as of May 31, 2026 (the “ Effective Date ”), is entered into by and between FedEx Corporation, a Delaware corporation (“ RemainCo ”), and FedEx Freight Holding Company, Inc., a Delaware corporation (“ SpinCo ”). Each of RemainCo and SpinCo is sometimes referred to herein as a “ Party ” and collectively, as the “ Parties .” Capitalized terms used in this Agreement and not defined herein shall have the meanings ascribed to such terms in the Separation and Distribution Agreement, dated as of May 28, 2026, by and between the Parties (the “ Separation Agreement ”). W I T N E S S E T H: WHEREAS , the Parties entered into the Separation Agreement; WHEREAS , the Separation Agreement contemplates that RemainCo and SpinCo will execute this Agreement, and this Agreement is being entered into by the Parties to satisfy the requirements described therein; WHEREAS , RemainCo may provide certain services to SpinCo and SpinCo may provide certain services to RemainCo, as more particularly described in this Agreement, for a limited period of time following the Distribution; and WHEREAS , each of RemainCo and SpinCo desires to reflect the terms of their agreement with respect to such services. NOW , THEREFORE , the Parties, intending to be legally bound, hereby agree as follows: ARTICLE I DEFINITIONS Section 1.1 Definitions . As used in this Agreement (including the recitals hereof), the following terms shall have the following meanings: (1) “ Agreement ” has the meaning set forth in the preamble hereto. (2) “ Confidential Information ” has the meaning set forth in Section 5.1 . (3) “ Cost of Services ” means, with respect to each Service, the amount specified with respect to such Service in Schedule A to be paid by the Service Recipient in respect of such Service to the Service Provider of such Service. (4) “ Disclosing Party ” has the meaning set forth in Section 5.2 . (5) “ Early Termination Consequence Notice ” has the meaning set forth in Section 6.4(a) . (6) “ Effective Date ” has the meaning set forth in the preamble to this Agreement. (7) “ Excluded Services ” has the meaning set forth in Section 2.1(l) . (8) “ Extension Period ” has the meaning set forth in Section 6.2 . (9) “ Force Majeure Event ” has the meaning set forth in Section 10.1 . (10) “ Group ” means either the RemainCo Group or the SpinCo Group, as the context requires. (11) “ Hourly Services ” has the meaning set forth in Section 4.1(b) . (12) “ Hourly Services Expenses ” has the meaning set forth in Section 4.1(b) . (13) “ Indemnitee ” means a Service Provider Indemnitee or a Service Recipient Indemnitee, as the context requires. 1 TABLE OF CONTENTS (14) “ Interruption ” has the meaning set forth in Section 2.1(i) . (15) “ Omitted Services ” has the meaning set forth in Section 2.2(a) . (16) “ Outside Date ” has the meaning set forth in Section 6.1 . (17) “ Party ” and “ Parties ” have the meaning set forth in the preamble to this Agreement. (18) “ Preliminary Dispute Notice ” has the meaning set forth in Section 9.1 . (19) “ Project Work ” has the meaning set forth in Section 2.3 . (20) “ Project Work Request ” has the meaning set forth in Section 2.3 . (21) “ Receiving Party ” has the meaning set forth in Section 5.2 . (22) “ RemainCo ” has the meaning set forth in the preamble to this Agreement. (23) “ Resolution Committee ” has the meaning set forth in Section 9.1 . (24) “ Separation Agreement ” has the meaning set forth in the preamble to this Agreement. (25) “ Service Charge ” has the meaning set forth in Section 4.1(a) . (26) “ Service Coordinator ” has the meaning set forth in Section 2.1(b) . (27) “ Service Provider ” means any member of the (i) RemainCo Group in its capacity as the provider of any Services to any member of the SpinCo Group or (ii) SpinCo Group in its capacity as the provider of any Services to any member of the RemainCo Group. (28) “ Service Provider Indemnitees ” has the meaning set forth in Section 7.1 . (29) “ Service Recipient ” means any member of the (i) RemainCo Group in its capacity as the recipient of any Services from any member of the SpinCo Group or (ii) SpinCo Group in its capacity as the recipient of any Services from any member of the RemainCo Group. (30) “ Service Recipient Indemnitees ” has the meaning set forth in Section 7.2 . (31) “ Service Taxes ” has the meaning set forth in Section 4.2(a) . (32) “ Service Term ” means the period of time that each Service shall be provided hereunder as set forth for each Service on Schedule A . (33) “ Services ” means the individual services set forth on Schedule A . (34) “ Shutdown ” has the meaning set forth in Section 2.1(h) . (35) “ SpinCo ” has the meaning set forth in the preamble to this Agreement. (36) “ Sub-Contractor ” has the meaning set forth in Section 2.1(d) . (37) “ Termination Charges ” has the meaning set forth in Section 6.5(d) . (38) “ Third Party ” and “ Third-Party ” means any Person other than RemainCo, SpinCo and their respective Affiliates. (39) “ Third-Party Agreements ” has the meaning set forth in Section 3.3 . Section 1.2 References; Interpretation . Section 1.2 of the Separation Agreement shall apply to this Agreement mutatis mutandis . 2 TABLE OF CONTENTS ARTICLE II SERVICES Section 2.1 Provision of Services . (a) Commencing as of the Effective Date, each Party shall, and shall cause the applicable members of its Group to (i) provide, cause to be provided or otherwise make available, as the Service Provider under this Agreement, to the other Party and the applicable members of the other Party’s Group, as the other Party may designate, the Services, and (ii) pay, perform, discharge and satisfy, as and when due, as the Service Recipient under this Agreement, its respective obligations under this Agreement, in each case in accordance with the terms of this Agreement. (b) The Service Recipient and the Service Provider shall reasonably cooperate in good faith with each other in connection with the performance of the Services hereunder. Each of RemainCo and SpinCo agrees to appoint two (2) employee representatives (each such representative, a “ Service Coordinator ”) who will have overall responsibility for implementing, managing and coordinating the Services pursuant to this Agreement on behalf of RemainCo and SpinCo, respectively. Initially, the Service Coordinators will be the individuals set forth on Schedule B . Either Party may change any of its designated Service Coordinators at any time upon notice given to the other Party in accordance with Section 10.6 ; provided that each Party shall have, at a minimum, one Service Coordinator who has sufficient experience and familiarity with the technology-related Services and one who has sufficient experience and familiarity with the non-technology-related Services. The Service Coordinators will consult and coordinate with each other on a regular basis, and no less frequently than monthly, during the term of this Agreement. (c) The Service Provider shall determine the personnel who shall perform the Services to be provided by it. All personnel providing Services will remain at all times, and be deemed to be, employees or representatives solely of the Service Provider (or its Affiliates or Sub-Contractors) responsible for providing such Services for all purposes, and not to be deemed employees or representatives of the Service Recipient. The Service Provider (or its Affiliates or Sub-Contractors) will be solely responsible for payment of (i) all compensation, (ii) all disability, withholding and other employment taxes and (iii) all medical benefit premiums, vacation pay, sick pay and other employee benefits payable to or with respect to personnel who perform Services on behalf of such Service Provider. All such personnel will be under the sole direction, control and supervision of the Service Provider and the Service Provider has the sole right to exercise all authority with respect to the employment, substitution, termination, assignment and compensation of such personnel. (d) The Service Provider may, at its option, from time to time, delegate or subcontract any or all of its obligations to perform Services under this Agreement to any one or more of its Affiliates or engage the services of other professionals, consultants or other Third Parties (each, a “ Sub-Contractor ”) in connection with the performance of the Services; provided , however , that (i) the Service Provider shall remain ultimately responsible for ensuring that its obligations with respect to the nature, scope, quality and other aspects of the Services are satisfied with respect to any Services provided by any such Sub-Contractor and shall be liable for any failure of a Sub-Contractor to so satisfy such obligations (or if a Sub-Contractor otherwise breaches any provision hereof), (ii) any such Third-Party Sub-Contractor agrees in writing to be bound by confidentiality provisions at least as restrictive to it as the terms of Article V of this Agreement and (iii) the Service Provider shall notify the Service Recipient in advance in writing of any material subcontracting. Except as agreed by the Parties in Schedule A or otherwise in writing, and subject to Section 2.1(f) , any costs associated with engaging the services of a Sub-Contractor shall not affect the Cost of Services payable by the Service Recipient under this Agreement, and the Service Provider shall remain solely responsible with respect to payment for such Sub-Contractor’s costs, fees and expenses. (e) The Services shall be performed in substantially the same manner, scope, time frame, nature and quality, with substantially the same care, and to substantially the same extent and service level as such Services (or substantially similar services) were provided during the twelve (12) months immediately prior to the Effective Date, unless the Services are being provided by a Sub-Contractor who is also providing the same services to the Service Provider or a member of such Service Provider’s Group, in which case the Services shall be performed for the Service Recipient in substantially the same manner, scope, time frame, nature and 3 TABLE OF CONTENTS quality, with substantially the same care, and to substantially the same extent and service level as they are being performed for the Service Provider or such member of such Service Provider’s Group, as applicable. If the Service Provider has not provided such Services (or substantially similar services) during the twelve (12) months immediately prior to the Effective Date and such Services are not being performed by a Sub-Contractor who is also providing the same services to such Service Provider’s Group, then the Services shall be performed in a competent and professional manner substantially consistent with industry practice. Without limiting the foregoing, if Schedule A sets forth a specific service level with respect to a Service, such service level shall apply. The Services shall be used solely for the operation of the Service Recipient’s business for substantially the same purpose (as applicable) as used by the Service Recipient in the twelve (12) months immediately prior to the Effective Date. (f) The Parties acknowledge that the Service Provider may make changes from time to time in the manner of performing Services (including in respect of those Services provided by a Sub-Contractor) if the Service Provider is making similar changes in performing the same or substantially similar Services for itself or other members of its Group; provided , however , that such changes shall not decrease in any material respect the manner, scope, time frame, nature, quality or level of the Services provided to the Service Recipient, except upon prior written approval of the Service Recipient, and any actual and reasonable increase to the Service Provider in the cost of providing a Service as a result of such changes may be charged to the Service Recipient on a pass-through basis (for all costs and expenses incurred in connection therewith) to the extent such actual and reasonable increase is applied on a non-discriminatory basis as compared to the Service Provider’s Group; provided , further , that (i) with respect to any Service, the Service Recipient’s prior written approval shall be required to the extent that such actual and reasonable increase exceeds fifteen percent (15%) of the Service Charge paid and payable to the Service Provider for such Service in any calendar quarter and (ii) if the Service Recipient does not approve such increase, then the Service Provider shall have no obligation to provide the associated Service to the extent affected thereby. (g) Nothing in this Agreement shall be deemed to require the provision of any Service by the Service Provider (or any Affiliate or Sub-Contractor of the Service Provider) to the Service Recipient if the provision of such Service would reasonably be expected to require the Consent of any Person (including any Governmental Entity), whether under applicable Law, by the terms of any Contract to which such Service Provider or any other member of its Group is a party or otherwise, unless and until, subject to the remainder of this Section 2.1(g) , such Consent has been obtained. The Service Provider shall use commercially reasonable efforts to obtain any Consent of any Person necessary for the performance of the Service Provider’s obligations pursuant to this Agreement. Any fees, expenses or extra costs incurred in connection with obtaining any such Consents shall be paid by the Service Recipient, and the Service Recipient shall use commercially reasonable efforts to provide assistance as necessary in obtaining such Consents. In the event that the Consent of any Person, if required in order for the Service Provider to provide Services, is not obtained reasonably promptly (and in any event within thirty (30) days) after the Effective Date by the Service Provider, the Service Provider shall notify the Service Recipient and the Service Provider is excused from providing the Service that requires such unobtainable Consent; provided that the Parties shall reasonably cooperate in devising an alternative manner for the provision of the Services affected by such failure to obtain such Consent and the Cost of Services associated therewith, such alternative manner and Cost of Services to be reasonably satisfactory to both Parties and agreed to in writing. If the Parties elect such an alternative plan, the Service Provider shall provide the Services in such alternative manner and the Service Recipient shall pay for such Services based on the alternative Cost of Services. The Services shall not include, and no Service Provider (or any Affiliate or Sub-Contractor of a Service Provider) shall be obligated to provide, any service the provision of which to the Service Recipient following the Effective Date would constitute a violation of any Law. In addition, notwithstanding anything to the contrary herein, the Service Provider (and the Affiliates and Sub-Contractors of the Service Provider) will not be required to perform or to cause to be performed any of the Services for the benefit of any Third Party or any other Person other than the Service Recipient and the Service Recipient’s Group. To the extent that any Third-Party proprietor of information or software to be disclosed or made available to the Service Recipient in connection with performance of the Services hereunder requires a specific form of non-disclosure agreement as a condition to its Consent to use the same for the benefit of the Service Recipient, or to permit the Service Recipient access to such information or software, the Service Recipient shall, as a condition to the receipt of such portion of the Services, execute (and shall cause its employees and Affiliates to execute, if required) any such form. 4 TABLE OF CONTENTS (h) If the Service Provider determines that it is necessary or appropriate to temporarily suspend a Service due to scheduled or emergency maintenance, modification, repairs, alterations or replacements (any such event, a “ Shutdown ”), the Service Provider shall use commercially reasonable efforts to provide the Service Recipient with reasonable prior notice of such Shutdown (including information regarding the nature and the projected length of such Shutdown), unless it is not reasonably practicable under the circumstances to provide such prior notice, and thereafter the Service Provider shall use commercially reasonable efforts to cooperate with the Service Recipient to minimize any impact on the Services caused by such Shutdown. (i) The Parties acknowledge that there may be unanticipated temporary interruptions in the provision of a Service, in each case for a period of less than forty-eight (48) hours (unless such time period for an applicable Service is specified to be shorter in, and subject to any penalties for such nonperformance set forth in, Schedule A ) (any such event, an “ Interruption ”). The Service Provider shall use commercially reasonable efforts to provide the Service Recipient with notice of such Interruption as soon as possible (including information regarding the nature and the projected length of such Interruption), and thereafter such Service Provider shall use commercially reasonable efforts to cooperate with the Service Recipient to minimize any impact on the Services caused by such Interruption. The Service Provider shall not be excused from performance if it fails to use commercially reasonable efforts to remedy the situation causing such Interruption. (j) In the event the obligations of the Service Provider to provide any Service are suspended in accordance with Section 2.1(h) or Section 2.1(i) , the Service Provider and its Affiliates shall not have any liability whatsoever to the Service Recipient arising out of or relating to such suspension of the Service Provider’s provision of such Service, except to the extent resulting from a breach by the Service Provider of any agreement or covenant required to be performed or complied with by the Service Provider pursuant to Section 2.1(h) or Section 2.1(i) (but subject to the other limitations on liability set forth in this Agreement). (k) Neither Party nor any of its respective Affiliates shall have any obligation to purchase, upgrade, enhance or otherwise modify any computer hardware, software or network environment currently used by such Party or such Party’s Affiliates, or to provide any support or maintenance services for any computer hardware, software or network environment that has been upgraded, enhanced or otherwise modified from the computer hardware, software or network environments that are currently used by such Party or such Party’s Affiliates. (l) Notwithstanding anything to the contrary herein, the Services shall not include, and the Service Provider shall have no obligation to provide hereunder, any legal advice, tax advice, financial advice, accounting advice, corporate management advice, internal audit advice, insurance advice, permitting or regulatory compliance advice or any other services identified on Schedule C (the “ Excluded Services ”). Section 2.2 Service Amendments and Additions . (a) Within the first six (6) months following the Effective Date, the Service Recipient may request the Service Provider to provide services that (i) were provided to the Service Recipient’s business within the twelve (12) months immediately prior to the Effective Date, (ii) are reasonably necessary for the operation of the Service Recipient’s business, as applicable, as conducted as of the Effective Date, and (iii) are not Excluded Services (any such validly requested services, “ Omitted Services ”). Any request for an Omitted Service shall be in writing and shall specify, as applicable, (A) the type and the scope of the requested service, (B) who is requested to perform the requested service, (C) where and to whom the requested service is to be provided, (D) the proposed term for the requested service, and (E) the proposed service fees payable for such requested service. (b) The Service Provider shall provide, or shall cause to be provided, any Omitted Service requested by the Service Recipient; provided that (i) the Service Provider or its Affiliates are reasonably capable of providing such Omitted Service and (ii) such Omitted Service cannot reasonably be provided by the Service Recipient or its Affiliates or obtained by the Service Recipient or its Affiliates from a Third Party on commercially reasonable terms. Following the Service Recipient’s request for an Omitted Service, the Parties shall negotiate in good faith an amendment to Schedule A , which describes in detail the service, project scope, term, price and payment terms to be charged for such Omitted Service (which shall be calculated using the methodology used to calculate the Service Charges for similar Services, as applicable). Once agreed to 5 TABLE OF CONTENTS in writing, the amendment to Schedule A shall be deemed part of this Agreement as of such date and such Omitted Services shall be deemed “ Services ” provided hereunder, in each case subject to the terms and conditions of this Agreement; provided , however , that the Service Provider shall not be required to provide any Omitted Services, at any price, that would prevent, or be reasonably likely to prevent, or be inconsistent with the qualification of the Distribution as a tax-free transaction for U.S. federal, state and local income tax purposes. Section 2.3 Migration Projects . Without limiting any migration Services set forth on Schedule A , prior to the end of the applicable Service Term, the Service Provider will provide the Service Recipient (subject to the remainder of this Section 2.3 ), upon written request from the Service Recipient (the “ Project Work Request ”), with such reasonable support as may be necessary to migrate the Services to the Service Recipient’s internal organization or to a Third-Party provider (the “ Project Work ”), including exporting and providing (subject to applicable Law and the Data Transfer Agreement) all relevant data and information of the Service Recipient from the systems of the Service Provider or any party performing the Services on its behalf. After the Service Provider receives a Project Work Request, the Parties shall meet to discuss and agree on the scope and cost of the Project Work, taking into consideration the Service Provider’s then-available resources (and for clarity, the Service Provider shall not be obligated to perform such Project Work unless and until the Parties so mutually agree on such scope and costs of such Project Work). Where required for migrating the Services in connection with Project Work, the Service Recipient’s personnel will be granted reasonable access to the respective facilities of the Service Provider during normal business hours. Project Work may be out-sourced to external service partners (including those involving conversion programs or other programming, or extraordinary management supervision or coordination); provided that the Service Provider shall be responsible for the performance or non-performance of such partners. The Service Recipient shall pay its internal costs incurred in connection with all Project Work performed by its personnel and the internal costs of the Service Provider and its Affiliates (as applicable), and the cost of all Third-Party providers engaged in completing a Project Work shall be charged by the Service Provider to the Service Recipient on a pass-through basis (for all costs and expenses incurred in connection therewith). Section 2.4 Knowledge Transfer . During the applicable Service Term and upon the Service Recipient’s reasonable request, the Service Provider shall use commercially reasonable efforts to (i) provide basic training and training materials to the Service Recipient that the Service Recipient may require to enable the Service Recipient to receive and use the applicable Service and (ii) make the Service Provider’s personnel available for questions from and discussions with the Service Recipient regarding the applicable Service. Section 2.5 No Management Authority . The Service Provider (or any Affiliate or Sub-Contractor of the Service Provider) shall not be authorized by, nor shall have any responsibility under, this Agreement to manage the affairs of the business of the Service Recipient, or to hold itself out as an agent or representative of the Service Recipient. Section 2.6 Acknowledgment and Representation . Each Party understands that the Services provided hereunder are transitional in nature. Each Party understands and agrees that the other Party is not in the business of providing Services to Third Parties and, except as set forth in Section 6.2 , that neither Party has any interest in continuing (i) any Service beyond the Service Term for such Service or (ii) this Agreement beyond the expiration of all Service Terms, the Outside Date, or the earlier termination of all Services in accordance with Article VI . As a result, the Parties have allocated responsibilities and risks of loss and limited liabilities of the Parties as stated in this Agreement based on the recognition that each Party is not in the business of providing Services to Third Parties. Such allocations and limitations are fundamental elements of the basis of the bargain between the Parties and neither Party would be able or willing to provide the Services without the protections provided by such allocations and limitations. During the term of this Agreement, the Service Recipient agrees to work diligently and expeditiously to establish its own logistics, infrastructure and systems to enable a transition to its own internal organization or other Third-Party providers of the Services and agrees to use its reasonable good faith efforts to reduce or eliminate its and its Affiliates’ dependency on the Service Provider’s provision of the Services as soon as is reasonably practicable. 6 TABLE OF CONTENTS ARTICLE III ADDITIONAL ARRANGEMENTS Section 3.1 Cooperation and Access . (a) The Service Recipient shall cooperate with the Service Provider to the extent necessary or appropriate to facilitate the performance of the Services in accordance with the terms of this Agreement. Without limiting the generality of the foregoing, (i) each Party shall make available on a timely basis to the other Party all information and materials requested by such Party to the extent reasonably necessary for the performance or receipt of the Services, (ii) each Party shall, and shall cause the members of its Group to, upon reasonable notice, give or cause to be given to the other Party and its Affiliates and Sub-Contractors reasonable access, during regular business hours and at such other times as are reasonably required, to the relevant premises and personnel to the extent reasonably necessary for the performance or receipt of the Services and (iii) each Party shall, and shall cause the members of its Group to, give the other Party and its Affiliates and Sub-Contractors reasonable access to, and all necessary rights to utilize, such Party’s, and its Group’s, information, facilities, personnel, assets, systems and technologies to the extent reasonably necessary for the performance or receipt of the Services. Notwithstanding the foregoing, in no event shall either Party have any right to view or otherwise access the other Party’s tax returns pursuant to this Section 3.1 . (b) The Service Recipient shall (and shall cause the members of its Group and its personnel and the personnel of its Affiliates and Sub-Contractors receiving Services to): (i) not attempt to obtain access to or use any IT Assets of the Service Provider or any member of the Service Provider’s Group, or any Confidential Information, Personal Data or competitively sensitive information owned, used or Processed by the Service Provider or members of its Group, except where it has been granted in writing the right to do so or, to the extent reasonably necessary to do so, to receive the Services; (ii) maintain reasonable security measures to protect the systems of the Service Provider and the members of its Group to which it has access pursuant to this Agreement from access by unauthorized Third Parties; (iii) comply with applicable Laws and all of the Service Provider’s security rules, access agreements, and procedures for restricting access to and use of, when allowed, such Service Provider’s IT Assets; (iv) when on the property of the Service Provider or any of its Affiliates, or when given access to any facilities, infrastructure or personnel of the Service Provider or any of its Affiliates, follow applicable Laws and all of the Service Provider’s policies and procedures concerning health, safety, conduct and security which are made known to the Service Recipient receiving such access from time to time; (v) limit each user’s access to information for which each user has a bona fide business need to access; and (vi) not disable, damage or erase or disrupt, interfere with or impair the normal operation of the IT Assets of the Service Provider or any member of its Group. (c) The Service Provider shall (i) notify the Service Recipient of any confirmed misuse, disclosure or loss of, or inability to account for, any Personal Data or any confidential or competitively sensitive Information, and any confirmed unauthorized access to the Service Provider’s facilities, systems or network, in each case, solely to the extent related to the Service Recipient, and the Service Provider will investigate such confirmed security incidents and reasonably cooperate with the Service Recipient’s incident response team, supplying logs and other necessary information to mitigate and limit the damages resulting from such a security incident; provided that the Service Recipient agrees to reimburse the Service Provider for time spent and actual travel expenses incurred in connection with any such investigation; and (ii) subject to applicable Law, use commercially reasonable efforts to comply with any reasonable requests to assist the Service Recipient with its electronic discovery obligations related to the Services provided to the Service Recipient; provided that the Service Recipient agrees to reimburse the Service Provider for time spent and actual travel expenses incurred for such requests. (d) In the event of a security breach that relates to the Services, the Parties shall, subject to any applicable Law, reasonably cooperate with each other regarding the timing and manner of (i) notification to their respective customers, potential customers, employees or agents concerning a breach or potential breach of security and (ii) disclosures to appropriate Governmental Entities. (e) Notwithstanding anything to the contrary in this Agreement (but subject to the following proviso), any Personal Data transferred or otherwise made available to the other Party in connection with the Services shall be subject to the Data Transfer Agreement, and each Party agrees to abide by the applicable 7 TABLE OF CONTENTS provisions thereof, to the extent related to such data; provided , however , that any Personal Data provided by or on behalf of the Service Recipient to the Service Provider under this Agreement shall only be used to the extent reasonably necessary for the Service Provider to provide or cause to be provided the Services and solely for the applicable term of such Services. (f) Each Party shall retain ownership of its and its Affiliates’ data existing as of the Effective Date. As between the Parties, all data to the extent pertaining to a Service Recipient’s or its Affiliates’ customers, employees, finances, operations or otherwise that is collected or created pursuant to this Agreement for the benefit of the Service Recipient or its Affiliates shall be owned solely by such Service Recipient. Section 3.2 Intellectual Property . (a) Each Party, on behalf of itself and its Affiliates, hereby grants to the other Party and to its Affiliates and Sub-Contractors providing Services under this Agreement a non-exclusive, nontransferable, world-wide, royalty-free, sublicensable license, for the term of this Agreement, to use the Intellectual Property owned by such Party and the members of its Group solely to the extent necessary for (and solely for the purposes of) the other Party and the members of its Group to perform their obligations hereunder or receive the Services provided hereunder, as applicable. Except as otherwise expressly set forth herein, the Service Recipient acknowledges and agrees that it will acquire no right, title or interest to any work product resulting from the provision of the Services hereunder, and such work product shall remain the property of the Service Provider. (b) The Parties acknowledge that it may be necessary for each of them to make proprietary or Third-Party Software available to the other in the course and for the purpose of performing or receiving the Services (as applicable), subject to Section 2.1(g) in the case of Third-Party Software. Each Party (i) shall comply with all known license terms and conditions applicable to any and all proprietary or Third-Party Software made available to such Party by the other Party in the course of the provision or receipt (as applicable) of the Services hereunder and (ii) agrees that it shall use reasonable efforts to identify and provide to the other Party a copy of the applicable license terms (or, solely with respect to open source software or other Software with publicly available license terms, information sufficient to direct such other Party to a copy thereof) for any and all proprietary or Third-Party Software first made available to such other Party as of or after the Effective Date, solely to the extent such provision would not violate the providing Party’s duty of confidentiality owed to any Third Party. (c) Except as expressly specified in this Section 3.2 , nothing in this Agreement will be deemed to grant one Party, by implication, estoppel or otherwise, any license rights, ownership rights or other rights in any Intellectual Property owned by the other Party (or any Affiliate or Sub-Contractor of the other Party). Section 3.3 Third-Party Agreements . The Service Recipient acknowledges and agrees that the Services provided by the Service Provider through Third Parties or using Third-Party Intellectual Property are subject to the terms and conditions of any applicable agreements between the Service Provider or its Affiliates and such Third Parties or their Affiliates (such agreements, the “ Third-Party Agreements ”), and the Service Recipient shall comply with all known terms thereof. The Service Provider shall use commercially reasonable efforts to obtain any Consent of any Person that may be necessary for the performance of the Service Provider’s obligations pursuant to this Agreement in accordance with Section 2.1(g) (it being understood that the Service Recipient shall only be granted access to rights or benefits under such Third-Party Agreements during the term of this Agreement). ARTICLE IV COMPENSATION Section 4.1 Compensation for Services . (a) As compensation for each Service rendered pursuant to this Agreement, the Service Recipient shall be required to pay to the Service Provider a fee for the Service equal to the Cost of Services specified for such Service in Schedule A (each fee, together with any applicable Hourly Services Expenses, constituting a “ Service Charge ”). 8 TABLE OF CONTENTS (b) For Services with fees determined on an hourly basis (the “ Hourly Services ”), the Cost of Services are in addition to any out-of-pocket Third-Party fees, costs and expenses that may be incurred by the Service Provider or any Sub-Contractor in connection with performing the Services. All of the costs and expenses described in this Section 4.1(b) (“ Hourly Services Expenses ”) shall be charged by the Service Provider to the Service Recipient on a pass-through basis (for all costs and expenses incurred in connection therewith). For the avoidance of doubt, the Hourly Services Expenses shall be consistent with the Service Provider’s general approach with respect to such types of costs and expenses; provided that with respect to any Service, the Service Recipient’s prior written approval shall be required to the extent that Hourly Services Expenses exceed fifteen percent (15%) of the Service Charge (excluding any Hourly Services Expenses) paid and payable to the Service Provider for such Service in any calendar quarter; provided , further , that if the Service Recipient does not approve such amounts, then the Service Provider shall have no obligation to provide the associated Service to the extent affected thereby. Section 4.2 Taxes (a) Except as otherwise set forth on Schedule A , all Service Charges paid pursuant to this Agreement shall be exclusive of all sales, use, services, and other similar taxes (“ Service Taxes ”) required by applicable Law to be paid in connection with the provision of the corresponding Service. The Service Recipient shall be responsible for all Service Taxes required to be paid in connection with the provision of the relevant Service. In the event that the Service Provider is required by applicable Law to pay any such Service Taxes, then the Service Provider shall timely pay such Service Taxes to the applicable Governmental Entity and the Service Recipient shall reimburse the Service Provider for such payment in accordance with Section 4.3 . (b) The Parties shall (and shall cause their respective Affiliates to) (i) provide and make available to each other any resale certificate, information regarding out-of-state use of materials, services or sales, and any other exemption certificates or information that one Party reasonably requests from the other Party; (ii) use commercially reasonable efforts to minimize or eliminate any Service Taxes to the extent permitted by applicable Law; and (iii) reasonably cooperate with the other Party in connection with the reporting of, or any audit, assessment, refund, claim or proceeding relating to, any Service Taxes. (c) If a Party (or any of its Affiliates) receives or is otherwise entitled to a refund or credit in respect of any Service Taxes for which a Service Recipient is responsible pursuant to this Agreement, then such Party shall (or shall cause its Affiliate to) promptly pay to such Service Recipient an amount equal to such refund or credit. (d) Each Party shall have the right to deduct or withhold from any payments otherwise payable under this Agreement such amounts as are required by applicable Law to be deducted or withheld. To the extent that such amounts are duly and timely remitted to the appropriate Governmental Entity, such deducted or withheld amounts shall be treated as paid to the other Party for all purposes of this Agreement; provided , however , that each Party shall use commercially reasonable efforts to notify the other Party in writing of any anticipated withholding at least fifteen (15) Business Days prior to making any such deduction or withholding and shall cooperate with the other Party to reduce or eliminate any such deduction or withholding. The Party making such deduction or withholding shall promptly provide to the other Party any tax receipts or other documents evidencing the payment of any such deducted or withheld amount to the applicable Governmental Entity. (e) Notwithstanding anything to the contrary in this Agreement, each Party shall be responsible for (i) any real or personal property taxes on property that it owns or leases, (ii) franchise, margin privilege and similar taxes imposed on or in connection with its business, and (iii) any taxes based on its income, gross receipts or capital. Section 4.3 Payment Terms . (a) The Service Provider shall bill the Service Recipient monthly in U.S. Dollars, within thirty (30) Business Days after the end of each month, or at such other interval specified with respect to a particular Service in Schedule A at an amount equal to the aggregate Service Charges due for all Services provided in such month or other specified interval, as applicable, plus any Service Taxes payable in accordance with Section 4.2 and other amounts owed hereunder. Invoices shall set forth a description of the Services provided and reasonable documentation to support the charges thereon, which invoice and documentation 9 TABLE OF CONTENTS shall be in substantially the same level of detail and substantially in accordance with the procedures for invoicing as provided to the Service Provider’s other businesses (as applicable). Invoices shall be directed to the Service Coordinators appointed by RemainCo or SpinCo, as applicable, or to such other Person designated in writing from time to time by such Service Coordinators. The Service Recipient shall pay such amount in full within forty-five (45) days after receipt of each invoice by wire transfer of immediately available funds to the account designated by the Service Provider for this purpose. If the forty-fifth (45th) day falls on a day that is not a Business Day, the Service Recipient shall pay such amount on or before the following Business Day. Each invoice shall set forth in reasonable detail the calculation of the charges and amounts and applicable Service Taxes for each Service during the month or other specified interval to which such invoice relates. In addition to any other remedies for non-payment, if any payment is not received by the Service Provider on or before the date such amount is due, then a late payment interest charge at the Standard Rate shall immediately begin to accrue and any such late payment interest charges shall become immediately due and payable in addition to the amount otherwise owed under this Agreement. The Service Recipient may elect by written notice to the Service Provider to have invoices directed to and paid by any of the Service Recipient’s Affiliates and, in such event, the Service Recipient will make appropriate arrangements for the internal allocation of such invoiced costs within its Group. The Parties shall cooperate to establish an invoicing structure that minimizes taxes for both Parties, including by implementing a local-to-local invoicing structure where applicable. (b) The Service Recipient shall notify the Service Provider promptly, and in no event later than forty-five (45) days following receipt of the Service Provider’s invoice, of any amounts disputed in good faith. If the Service Recipient does not notify the Service Provider of any disputed amounts within such forty-five (45)-day period, then the Service Recipient will be deemed to have accepted the Service Provider’s invoice. Any objection to the amount of any invoice shall be deemed to be a Dispute hereunder subject to the provisions applicable to Disputes set forth in Article IX . The Service Recipient shall pay any undisputed amount, and all Service Taxes (whether or not disputed), in accordance with this Section 4.3 . The Service Provider shall, upon the written request of the Service Recipient, furnish such reasonable documentation to substantiate the amounts billed, including listings of the dates, times and amounts of the Services in question where applicable and practicable. The Service Recipient may withhold any payments to the extent subject to a Dispute other than Service Taxes; provided that any disputed payments, to the extent ultimately determined to be payable to the Service Provider, shall bear interest as set forth in Section 4.3(a) . (c) Subject to Section 4.3(b) , the Service Recipient shall not withhold any payments to the Service Provider under this Agreement to offset payments due to such Service Recipient or its Affiliates pursuant to this Agreement, the Separation Agreement, any Ancillary Agreement or otherwise, unless such withholding is mutually agreed in writing by the Parties or is provided for in the final ruling of a court of competent jurisdiction. Any required adjustment to payments due hereunder will be made as a subsequent invoice. Section 4.4 DISCLAIMER OF WARRANTIES . WITHOUT LIMITATION TO THE COVENANTS RELATING TO THE PROVISION OF SERVICES SET FORTH IN SECTION 2.1(e) , THE SERVICES TO BE PROVIDED UNDER THIS AGREEMENT ARE FURNISHED WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE. NO MEMBER OF THE SERVICE PROVIDER’S GROUP MAKES ANY REPRESENTATION OR WARRANTY THAT ANY SERVICE COMPLIES WITH ANY LAW, DOMESTIC OR FOREIGN, OR ANY CONTRACT. Section 4.5 Books and Records . The Service Provider shall, and shall cause the members of its Group to, maintain complete and accurate books of account as necessary to support calculations of the Cost of Services for Services rendered by it or the other members of its Group and shall make such books available to the Service Recipient, upon reasonable notice, during normal business hours; provided , however , that to the extent the Service Provider’s books, or the books of the members of its Group, contain Information relating to any other aspect of the Service Provider’s business or the business of any member of its Group, as applicable, the Parties shall negotiate a procedure to provide the Service Recipient with necessary access while preserving the confidentiality of such other records. 10 TABLE OF CONTENTS ARTICLE V CONFIDENTIALITY Section 5.1 Confidential Information . As used herein, “ Confidential Information ” means any confidential and proprietary information of a Party, regardless of form, which such Party considers to be confidential and proprietary, including information that: (a) if disclosed in writing, is labeled as “confidential” or “proprietary”; (b) if disclosed orally, is designated confidential at disclosure; (c) by nature or the circumstances of its disclosure, should reasonably be considered as confidential; or (d) constitutes information or data related to the Services, including trade secrets, algorithms, source code, product/service specifications, prototypes, product roadmaps, Software, product pricing, marketing plans, financial data, personnel statistics, methods of manufacturing and processing, techniques, research, development, inventions (whether or not patentable and whether or not reduced to practice), data, ideas, concepts, drawings, designs and schematics. Notwithstanding the foregoing, the term “Confidential Information” shall not include information which: (i) rightfully becomes publicly available other than by a breach of a duty to the Disclosing Party or violation of Law; (ii) is rightfully received by the Receiving Party from a Third Party without any obligation of confidentiality; (iii) as evidenced by the Receiving Party’s written records, is rightfully known to the Receiving Party without any limitation on use or disclosure prior to its receipt from the Disclosing Party; or (iv) is independently developed by or on behalf of the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party. Section 5.2 Confidentiality Obligations . Each Party and its Affiliates that receive, obtain or otherwise become aware of under or in connection with this Agreement (the “ Receiving Party ”) any Confidential Information of the other Party or its Affiliates (the “ Disclosing Party ”), respectively, agrees to (a) keep the Disclosing Party’s Confidential Information confidential, (b) use the Disclosing Party’s Confidential Information only as necessary to perform its obligations or exercise its rights under this Agreement or otherwise in connection with a Dispute, (c) use a reasonable degree of care in keeping the Disclosing Party’s Confidential Information confidential, and (d) limit access to the Disclosing Party’s Confidential Information to its personnel, Affiliates, assignees, contractors, sublicensees, authorized representatives and advisors (including any financial, tax, legal and technical advisors), in each case, who have a need to access or know such Confidential Information for the purpose of performing its obligations and exercising its rights under this Agreement and who have been apprised of these confidentiality obligations. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended to grant to the Receiving Party any rights in or to any Confidential Information of the Disclosing Party. Section 5.3 Disclosure Required by Law . In the event that the Receiving Party is requested or required by Law (including subpoena or court order) to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall, to the extent legally permissible, provide prompt written notice to the Disclosing Party of such request or requirement, so that the Disclosing Party will have a reasonable opportunity to seek confidential treatment of such Confidential Information prior to its disclosure (whether through protective orders or otherwise) and, upon request, the Receiving Party shall reasonably cooperate with the Disclosing Party in seeking confidential treatment of such Confidential Information or other appropriate relief from such Law. If, in the absence of a protective order, other confidential treatment or waiver under this Agreement, the Receiving Party is advised by its legal counsel that it is legally required to disclose such Confidential Information, the Receiving Party may disclose such Confidential Information without liability under this Article V ; provided that the Receiving Party exercises commercially reasonable efforts to obtain reliable assurances that confidential treatment will be accorded to any such Confidential Information prior to its disclosure and discloses only the minimum amount of such Confidential Information necessary to comply with such Law. Similarly, with respect to any disclosure of Confidential Information in connection with a Dispute, the Receiving Party shall exercise commercially reasonable efforts to obtain reliable assurances that confidential treatment will be accorded to any Confidential Information of the Disclosing Party prior to its disclosure. Section 5.4 Disclosure in Connection with Due Diligence . The terms of each Schedule to this Agreement shall be the Confidential Information of both Parties. A Party may provide any Schedule to this Agreement to any Third Party, subject to confidentiality obligations no less restrictive than those set forth in this Article V , if required to do so in connection with any diligence for any actual or potential bona fide 11 TABLE OF CONTENTS business transaction with such Third Party related to the subject matter of this Agreement (including an acquisition, divestiture, merger, consolidation, asset sale, financing or public offering). ARTICLE VI TERM Section 6.1 Commencement . This Agreement is effective as of the Effective Date and shall remain in effect with respect to a particular Service until the end of the Service Term for such Service (or, subject to the terms of Section 6.2 , the expiration of any Extension Period applicable to such Service), unless this Agreement is earlier terminated (i) in its entirety or with respect to a particular Service, in each case in accordance with Section 6.3 or Section 6.4 , or (ii) by mutual written consent of the Parties; provided that, unless otherwise set forth in Schedule A , in no event shall this Agreement or the Services provided hereunder continue beyond two (2) years from the Effective Date (the “ Outside Date ”). Section 6.2 Service Extension . Except as expressly provided in Schedule A , if the Service Recipient reasonably determines that it will require a Service to continue beyond the end of the Service Term for such Service, the Service Recipient may request the Service Provider to extend the term of such Service once for up to ninety (90) days (each, an “ Extension Period ”) by written notice to the Service Provider no less than forty-five (45) days prior to the end of the then-current Service Term. The Service Provider shall respond to any such request for an Extension Period within fifteen (15) days of receipt and shall use commercially reasonable efforts to comply with such Extension Period request; provided , however , that (i) the Extension Period with respect to each Service shall not extend the term of such Service to a date beyond the Outside Date (unless otherwise set forth in Schedule A ), (ii) the Service Provider will not be in breach of its obligations under this Section 6.2 if it is unable to comply with a request for an Extension Period through the use of commercially reasonable efforts, including where a Consent that is required for the Service Provider to continue to provide the applicable Service during the requested Extension Period cannot be obtained by the Service Provider through the use of commercially reasonable efforts, (iii) the Service Provider shall not be required to contribute capital, pay or grant any consideration or concession in any form (including by providing any letter of credit, guaranty or other financial accommodation) to any Person in order to obtain or make any Consent that is required for the Service Provider to continue to provide the applicable Service during the requested Extension Period (other than reasonable out-of-pocket expenses, attorneys’ fees and recording or similar fees, all of which shall be reimbursed by the Service Recipient, as promptly as reasonably practicable), (iv) the Service Provider may reject the Service Recipient’s request for an Extension Period if in the Service Provider’s good faith judgment the Service Provider cannot reasonably accommodate the requested Extension Period, and (v) each Extension Period is permissible under applicable Law and in RemainCo’s good-faith judgment would not prevent, or be reasonably likely to prevent, or otherwise adversely affect the qualification of the Distribution, together with certain related transactions, as a tax-free transaction for U.S. federal and applicable state and local income tax purposes. The Parties shall amend the terms of Schedule A to reflect the new Service Term within five (5) days following the Service Provider’s agreement to an Extension Period, subject to the conditions set forth in this Section 6.2 . Each such amended term of Schedule A , as agreed to in writing by the Parties, shall be deemed part of this Agreement as of the date of such agreement. Section 6.3 Termination . (a) This Agreement may be terminated: (i) by either RemainCo or SpinCo at any time upon written notice to the other Party (which notice shall specify the basis for such claim for breach of this Agreement), if the other Party materially breaches this Agreement (and the period for resolution of the Dispute relating to such breach set forth in Section 9.1 has expired), effective upon not less than sixty (60)-days’ prior written notice of termination to the breaching Party, if the breaching Party does not cure such breach within sixty (60) days after receiving written notice thereof from the non-breaching Party; or (ii) except as otherwise provided by Law, by either RemainCo or SpinCo at any time upon written notice to the other Party, if (A) the other Party is adjudicated as bankrupt, (B) any insolvency, bankruptcy or reorganization proceeding is commenced by the other Party under any insolvency, 12 TABLE OF CONTENTS bankruptcy or reorganization act, (C) any action is taken by others against the other Party under any insolvency, bankruptcy or reorganization act and such Party fails to have such proceeding stayed or vacated within ninety (90) days or (D) if the other Party makes an assignment for the benefit of creditors, or a receiver is appointed for the other Party which is not discharged within thirty (30) days after the appointment of the receiver. Section 6.4 Partial Termination . (a) Except as otherwise provided in this Agreement or Schedule A , upon not less than sixty (60)-days’ prior written notice, the Service Recipient shall be entitled to terminate one or more Services being provided by the applicable Service Provider for any reason or no reason at all. Within ten (10) days following receipt of such notice, the Service Provider shall notify the Service Recipient in writing as to whether the termination of any Services that are the subject of the notice will (i) require termination or partial termination of any other Services or (ii) result in the imposition of any Termination Charges (as defined below) and, if so, a good faith estimate of such Termination Charges (an “ Early Termination Consequence Notice ”). If the Service Provider delivers an Early Termination Consequence Notice to the Service Recipient as provided in this Section 6.4(a) , the Service Recipient may withdraw its initial notice within five (5) days of such notification. If the Service Recipient does not withdraw such notice within such five (5)-day period, termination of such Services will be final, including with respect to (A) the termination of any other Services identified by the Service Provider in its Early Termination Consequence Notice, and (B) the Service Recipient’s obligation to pay such Termination Charges incurred by the Service Provider. (b) In the event that a Service Provider reduces or suspends the provision of any Service due to a Force Majeure Event and such reduction or suspension continues for fifteen (15) days, the Service Recipient may immediately terminate such Service, upon written notice and without any obligations therefor, including any Service Charges in respect thereof (other than those that accrued prior to the date of such termination and Termination Charges). Section 6.5 Effect of Termination . (a) Each Party agrees and acknowledges that the obligations of the Service Provider to provide each Service, or to cause each Service to be provided, hereunder shall immediately cease upon (i) the expiration of the applicable Service Term (or, subject to the terms of Section 6.2 , the expiration of any Extension Period applicable to such Service), (ii) termination of (A) this Agreement in whole or (B) such Service, in each case in accordance with Section 6.3 or Section 6.4 , or (iii) termination of this Agreement or such Service by mutual written consent of the Parties. Upon cessation of the Service Provider’s obligation to provide any such Service, the Service Recipient shall stop using, directly or indirectly, such Service hereunder. (b) Upon the request of the Service Recipient after the termination of a Service with respect to which the Service Provider holds books, records or files, including current and archived copies of computer files, (i) owned solely by the Service Recipient or its Affiliates and used by the Service Provider solely in connection with the provision of a Service pursuant to this Agreement or (ii) created by the Service Provider and in the Service Provider’s possession as a function of and relating solely to the provision of Services pursuant to this Agreement, such books, records and files shall either be returned to the Service Recipient or destroyed by the Service Provider, other than, in each case, such books, records and files retained in compliance with its records retention policies or routine information technology processes; provided that the Service Provider shall only use such retained books, records and files as necessary to comply with its legal, audit or regulatory requirements or professional standards or as otherwise permissible under, or required pursuant to, the Separation Agreement or any Ancillary Agreement. The Service Recipient shall bear the Service Provider’s and its Affiliates’ reasonable, necessary and actual out-of-pocket costs and expenses associated with the return or destruction of such books, records or files. At its expense, the Service Provider may make one copy of such books, records or files for its legal files, subject to such Party’s obligations under Article V . (c) In the event that any Service is terminated other than at the end of a month, and the Service Charge associated with such Service is determined on a monthly basis, the Service Provider shall bill the Service Recipient for the entire month in which such Service is terminated. (d) In the event of a termination by the applicable Service Provider under Section 6.3 or by the Service Recipient under Section 6.4 , the Service Recipient shall pay to the Service Provider any breakage or 13 TABLE OF CONTENTS termination fees, and other termination costs payable by the Service Provider, solely as a result of the early termination of such Service or this Agreement, with respect to any resources or pursuant to any other Third-Party agreements that were used by the Service Provider to provide such Service or perform under this Agreement (or an equitably allocated portion thereof, in the case of any such equipment, resources or agreements that also were used for purposes other than providing Services) (“ Termination Charges ”). The Service Provider will provide to the Service Recipient an invoice for the Termination Charges within thirty (30) days following the date of any termination contemplated by this Section 6.5(d) and will provide reasonable documentary evidence to substantiate such Termination Charges. (e) In the event of any termination of this Agreement in its entirety or with respect to any Service, each Party, the Service Provider and the Service Recipient shall remain liable for all of their respective obligations that accrued hereunder prior to the date of such termination, including all obligations of each Service Recipient to pay any Service Charges due to any Service Provider hereunder. (f) The following matters shall survive the termination of this Agreement, including the rights and obligations of each Party thereunder, in addition to any claim for breach arising prior to termination: Article I , Section 3.1(e) , Section 3.1(f) , Section 3.2(a) , Section 3.2(c) , Article IV , Article V , this Section 6.5 , Article VII (including liability in respect of any indemnifiable Liabilities under this Agreement arising or occurring on or prior to the date of termination), Article VIII , Article IX , Article X and all confidentiality obligations under this Agreement. ARTICLE VII INDEMNIFICATION; LIMITATION OF LIABILITY Section 7.1 Indemnification by the Service Recipient . The Service Recipient, on behalf of itself and each member of its Group, shall indemnify, defend and hold harmless the Service Provider, its Affiliates and its and their respective employees, officers, agents and representatives (collectively, the “ Service Provider Indemnitees ”) from and against any and all Liabilities incurred by such Service Provider Indemnitee and arising out of, in connection with or by reason of any Services provided by or on behalf of any member of the Service Provider’s Group hereunder, except to the extent such Liabilities arise out of a Service Provider Group member’s (i) material breach of this Agreement or (ii) gross negligence or willful misconduct in providing the Services. Section 7.2 Indemnification by the Service Provider . The Service Provider, on behalf of itself and each member of its Group, shall indemnify, defend and hold harmless the Service Recipient, its Affiliates and its and their respective employees, officers, agents and representatives (collectively, the “ Service Recipient Indemnitees ”) from and against any and all Liabilities incurred by such Service Recipient Indemnitee and arising out of, in connection with or by reason of any Services provided by any member of the Service Provider’s Group hereunder, which Liabilities result from a Service Provider Group member’s (i) material breach of this Agreement or (ii) gross negligence or willful misconduct in providing the Services. Section 7.3 Indemnification Procedures . The provisions of Article VI of the Separation Agreement shall govern claims for indemnification under this Agreement mutatis mutandis ; provided that in the event of any conflict between the provisions of Article VI of the Separation Agreement and this Agreement, the provisions of this Agreement shall control. Section 7.4 Exclusion of Other Remedies . Without limiting the rights under Section 10.19 of the Separation Agreement, the provisions of Sections 7.1 and 7.2 shall, to the maximum extent permitted by applicable Law, be the sole and exclusive remedies of the RemainCo Group and the SpinCo Group, as applicable, for any Liability, whether arising from statute, principle of common or civil law, principles of strict liability, tort, contract or otherwise under this Agreement. Section 7.5 Other Indemnification Obligations Unaffected . For the avoidance of doubt, this Article VII applies solely to the specific matters and activities covered by this Agreement (and not to matters specifically covered by the Separation Agreement or the other Ancillary Agreements). 14 TABLE OF CONTENTS Section 7.6 Limitation on Liability . (a) IN NO EVENT SHALL THE SERVICE PROVIDER OR ITS AFFILIATES BE LIABLE, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE TO THE SERVICE RECIPIENT OR ITS AFFILIATES FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOSS OF PROFITS) AS A RESULT OF ANY BREACH, PERFORMANCE OR NON-PERFORMANCE BY THE SERVICE PROVIDER, ITS AFFILIATES OR ITS SUB-CONTRACTORS UNDER THIS AGREEMENT, EXCEPT AS MAY BE PAYABLE TO A CLAIMANT IN A THIRD-PARTY CLAIM. (b) THE SERVICE PROVIDER’S GROUP’S TOTAL LIABILITY TO THE SERVICE RECIPIENT’S GROUP ARISING OUT OF, RELATED TO OR IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT FOR ALL CLAIMS SHALL NOT EXCEED THE AGGREGATE SERVICE CHARGES THAT ARE REASONABLY CONTEMPLATED TO BE PAYABLE BY THE SERVICE RECIPIENT TO THE SERVICE PROVIDER HEREUNDER DURING THE FIRST TWELVE (12) MONTHS FOLLOWING THE EFFECTIVE DATE. ARTICLE VIII OTHER COVENANTS Section 8.1 Further Assurances . In addition to the actions specifically provided for elsewhere in this Agreement, each of the Parties shall use its reasonable best efforts, prior to, on and after the Effective Date, to take, or cause to be taken, all actions, and to do, or cause to be done, all things, reasonably necessary, proper or advisable under applicable Laws, regulations and agreements to consummate and make effective the transactions contemplated by this Agreement. ARTICLE IX DISPUTE RESOLUTION Section 9.1 Disputes . All Disputes will be first considered in person, by teleconference or by video conference by the Service Coordinators within five (5) Business Days after receipt of notice from either Party specifying the nature of the Dispute (a “ Preliminary Dispute Notice ”). The Service Coordinators shall enter into negotiations aimed at resolving any such Dispute. If the Service Coordinators are unable to reach a resolution with respect to the Dispute within ten (10) Business Days after receipt of notice of the Dispute, the Dispute shall be referred to a resolution committee comprised of transition leaders who hold the title(s) (or equivalent title(s)) set forth on Schedule D (the “ Resolution Committee ”) from RemainCo and SpinCo. Within two (2) Business Days of a request of a Party, the other Party shall provide such Party with the name and relevant contact information for its respective Resolution Committee members, and either Party may replace its Resolution Committee members at any time with other persons of similar seniority by providing written notice in accordance with Section 10.6 . The Resolution Committee will meet (by telephone or in person) during the next ten (10) Business Days and attempt to resolve the Dispute. In the event that the Resolution Committee is unable to reach a resolution with respect to the Dispute within ten (10) Business Days of the referral of the matter to the Resolution Committee, then either Party may deliver a General Dispute Notice pursuant to Section 8.1(b)(i) of the Separation Agreement and the terms and conditions of Article VIII of the Separation Agreement shall apply. ARTICLE X MISCELLANEOUS Section 10.1 Force Majeure . In case performance of any terms or provisions hereof shall be delayed or prevented, in whole or in part, because of or related to any requirement of any Law or national securities exchange, or because of an event beyond the control of such Party (or any Person acting on its behalf), which by its nature could not reasonably have been foreseen by such Party (or such Person), or, if it could reasonably have been foreseen, was unavoidable, and includes acts of God, storms, floods, riots, pandemics, fires, sabotage, civil commotion or civil unrest, interference by civil or military authorities, acts of war (declared or undeclared) or armed hostilities or other national or international calamity or one or more acts 15 TABLE OF CONTENTS of terrorism or failure of energy sources or distribution facilities (each, a “ Force Majeure Event ”), then, upon prompt written notice stating the date and extent of such interference and the cause thereof by such Party to the other Party, such Party shall be excused from its obligations hereunder during the period such Force Majeure Event or its effects continue, and no liability shall attach against either Party on account thereof; provided , however , that the Party whose performance is interfered with promptly resumes the required performance upon the cessation of the Force Majeure Event or its effects. No Party shall be excused from performance if such Party fails to use commercially reasonable efforts to remedy the situation and remove the cause and effects of the Force Majeure Event. Any Force Majeure Event shall be subject to the termination right set forth in Section 6.4(b) . Section 10.2 Conflicting Agreements . In the event and to the extent that there shall be a conflict between the provisions of this Agreement and the provisions of the Separation Agreement or any Ancillary Agreement, this Agreement shall control with respect to the subject matter hereof. Section 10.3 Relationship of Parties . Nothing in this Agreement shall be deemed or construed by the Parties or any Third Party as creating a relationship of principal and agent, partnership or joint venture between the Parties, between the Service Provider and the Service Recipient or with any individual providing Services, it being understood and agreed that no provision contained herein, and no act of any Party or members of its respective Group, shall be deemed to create any relationship between the Parties or members of their respective Groups other than the relationship set forth herein. Each Party shall act under this Agreement solely as an independent contractor and not as an agent or employee of any other Party or any of such Party’s Affiliates. Section 10.4 Assignability . Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned, in whole or in part, by operation of Law or otherwise by either Party without the prior written consent of the other Party, except that each Party may assign any and all of its rights under this Agreement to one or more of its Affiliates. Any purported assignment without such consent shall be void. Subject to the preceding sentences, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective successors and assigns. No assignment permitted by this Section 10.4 shall release the assigning Party from liability for the full performance of its obligations under this Agreement. Nothing in this Section 10.4 shall affect or impair a Service Provider’s ability to delegate any or all of its obligations under this Agreement to one or more Affiliates or Sub-Contractors pursuant to Section 2.1(d) . Section 10.5 Third-Party Beneficiaries . Except for the indemnification rights under this Agreement of any Service Recipient Indemnitee or Service Provider Indemnitee in his, her or its respective capacities as such, this Agreement is solely for the benefit of, and is only enforceable by, the Parties and their permitted successors and assigns and should not be deemed to confer upon Third Parties any remedy, benefit, claim, liability, reimbursement, claim of Action or other right of any nature whatsoever, including any rights of employment for any specified period, in excess of those existing without reference to this Agreement. Section 10.6 Notices . Notices, requests, instructions or other documents to be given under this Agreement shall be in writing and shall be deemed to have been properly delivered, given and received, (a) on the date of transmission if sent via email ( provided , however , that notice given by email shall not be effective unless either (i) a duplicate copy of such email notice is promptly given by one of the other methods described in this Section 10.6 or (ii) the receiving party delivers a written confirmation of receipt of such notice either by email or any other method described in this Section 10.6 (excluding “out of office” or other automated replies)), (b) when delivered, if delivered personally to the intended recipient, and (c) one (1) Business Day later, if sent by overnight delivery via a national courier service (providing proof of delivery), and in each case, addressed to a Party at the address for such Party set forth on a schedule to be delivered by each Party to the address set forth below (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 10.6 ): 16 TABLE OF CONTENTS To RemainCo: FedEx Corporation 942 South Shady Grove Road Memphis, Tennessee 38120 Attention: [****] Email: [****] with a copy to: FedEx Corporation 942 South Shady Grove Road Memphis, Tennessee 38120 Attention: [****] Email: [****] with a copy (which shall not constitute notice) to: Skadden, Arps, Slate, Meagher & Flom LLP One Manhattan West New York, NY 10001 Attention: Paul T. Schnell, Esq. Neil P. Stronski, Esq. Samuel J. Cammer, Esq. Email: Paul.Schnell@skadden.com Neil.Stronski@skadden.com Samuel.Cammer@skadden.com To SpinCo: 8285 Tournament Drive Memphis, Tennessee 38125 Attention: [****] Email: [****] with a copy (which shall not constitute notice) to: Skadden, Arps, Slate, Meagher & Flom LLP One Manhattan West New York, NY 10001 Attention: Paul T. Schnell, Esq. Neil P. Stronski, Esq. Samuel J. Cammer, Esq. Email: Paul.Schnell@skadden.com Neil.Stronski@skadden.com Samuel.Cammer@skadden.com Section 10.7 Miscellaneous . Article X of the Separation Agreement (other than Sections 10.2 (Ancillary Agreements), 10.4 (Survival of Agreements), 10.6 (Notices), 10.9 (Assignment), 10.11 (Certain Termination and Amendment Rights), 10.12 (Payment Terms), 10.15 (Third Party Beneficiaries) and 10.22 (Public Announcements)) shall apply to this Agreement mutatis mutandis ; provided that in the event of any conflict between the provisions of Article X of the Separation Agreement and this Agreement, the provisions of this Agreement shall control. * * * * * [ End of page left intentionally blank ] 17 TABLE OF CONTENTS IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. FEDEX CORPORATION By: /s/ Claude F. Russ Name: Claude F. Russ Title: Enterprise Vice President, Finance FEDEX FREIGHT HOLDING COMPANY, INC. By: /s/ C. Edward Klank III Name: C. Edward Klank III Title: President |
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EX-10.2 · tm2616055d2_ex10-2.htm EX-10.2 4 tm2616055d2_ex10-2.htm EXHIBIT 10.2 TABLE OF CONTENTS Exhibit 10.2 TAX MATTERS AGREEMENT by and between FEDEX CORPORATION and FEDEX FREIGHT HOLDING COMPANY, INC. Dated as of May 31, 2026 TABLE OF CONTENTS TABLE OF CONTENTS Page ARTICLE I DEFINITIONS Section 1.1 General 4 Section 1.2 References; Interpretation 8 ARTICLE II PAYMENTS AND TAX REFUNDS Section 2.1 Allocation of Tax Liabilities 8 Section 2.2 Employment Taxes 9 Section 2.3 Transaction Taxes 9 Section 2.4 Tax Refunds 9 Section 2.5 Tax Benefits 9 Section 2.6 Prior Agreements 9 ARTICLE III PREPARATION AND FILING OF TAX RETURNS Section 3.1 RemainCo’s Responsibility 9 Section 3.2 SpinCo’s Responsibility 9 Section 3.3 Right To Review Tax Returns 10 Section 3.4 Cooperation 10 Section 3.5 Transfer Pricing Documentation 10 Section 3.6 Tax Reporting Practices 10 Section 3.7 Protective Section 336(e) Election 10 Section 3.8 Payment of Taxes. 11 Section 3.9 Amended Returns and Carrybacks 11 Section 3.10 Tax Attributes 12 ARTICLE IV TAX-FREE STATUS OF THE TRANSACTIONS Section 4.1 Representations and Warranties 12 Section 4.2 Certain Restrictions Relating to the Tax-Free Status of the Transactions 12 Section 4.3 Interpretation of Article IV 14 ARTICLE V INDEMNITY OBLIGATIONS Section 5.1 Indemnity Obligations 14 Section 5.2 Indemnification Payments 14 Section 5.3 Payment Mechanics 15 Section 5.4 Treatment of Payments 15 TABLE OF CONTENTS Page ARTICLE VI TAX CONTESTS Section 6.1 Notice 15 Section 6.2 Separate Returns 16 Section 6.3 Joint Returns 16 Section 6.4 Obligation of Continued Notice 16 Section 6.5 Settlement Rights 16 ARTICLE VII COOPERATION Section 7.1 General 16 Section 7.2 Third-Party Costs and Expenses 17 Section 7.3 Consistent Treatment 17 ARTICLE VIII RETENTION OF RECORDS; ACCESS Section 8.1 Retention of Records 17 Section 8.2 Access to Tax Records 17 ARTICLE IX DISPUTE RESOLUTION Section 9.1 Dispute Resolution 18 ARTICLE X MISCELLANEOUS PROVISIONS Section 10.1 Conflicting Agreements 18 Section 10.2 Interest on Late Payments 18 Section 10.3 No Fiduciary Relationship 18 Section 10.4 Further Assurances 18 Section 10.5 Survival 18 Section 10.6 Predecessors or Successors 18 Section 10.7 Changes in Tax Law 19 Section 10.8 Miscellaneous 19 Section 10.9 Distribution Date 19 2 TABLE OF CONTENTS TAX MATTERS AGREEMENT TAX MATTERS AGREEMENT (this “ Agreement ”), dated as of May 31, 2026, by and between FedEx Corporation, a Delaware corporation (“ RemainCo ”), and FedEx Freight Holding Company, Inc., a Delaware corporation (“ SpinCo ”). Each of RemainCo and SpinCo is sometimes referred to herein as a “ Party ” and collectively, as the “ Parties .” Capitalized terms used in this Agreement and not defined herein shall have the meanings ascribed to such terms in the Separation and Distribution Agreement, dated as of May 28, 2026, by and between the Parties (the “ Separation Agreement ”). W I T N E S S E T H : WHEREAS , RemainCo, acting through its direct and indirect Subsidiaries, currently conducts (a) the SpinCo Business and (b) the RemainCo Business; WHEREAS , the Board has determined that it is appropriate, desirable and in the best interests of RemainCo and its stockholders to separate RemainCo into two separate, publicly traded companies, one for each of (a) the SpinCo Business, which shall be owned and conducted, directly or indirectly, by SpinCo, and (b) the RemainCo Business, which shall be owned and conducted, directly or indirectly, by RemainCo; WHEREAS , in order to effect such separation, the Board has determined that it is appropriate, desirable and in the best interests of RemainCo and its stockholders (a) to undertake the Internal Reorganization, and (b) thereafter, for RemainCo to undertake the Distribution; WHEREAS , in connection with the Internal Reorganization, the Board has determined that it is appropriate, desirable and in the best interests of RemainCo and its stockholders for SpinCo to (a) make the SpinCo Cash Distribution to RemainCo and (b) issue the SpinCo Exchange Debt to RemainCo, in each case as part of the consideration for the assets to be transferred to SpinCo by RemainCo pursuant to the SpinCo Contribution; WHEREAS , RemainCo will (a) no later than 12 months following the SpinCo Contribution, conduct the SpinCo Cash Proceeds Purge; and (b) no later than 24 months following the SpinCo Contribution, conduct the Equity-for-Debt Exchange and/or a Back-End Distribution; WHEREAS , SpinCo has been formed for this purpose and has not engaged in activities except those in connection with the transactions contemplated by the Internal Reorganization, the consummation of the transactions contemplated by the Separation Agreement and those activities necessary in connection with its standup as an independent company; WHEREAS , for U.S. federal income tax purposes, it is intended that the SpinCo Contribution and the Distribution, taken together, qualify as a “reorganization” pursuant to Section 355 and Section 368(a)(1)(D) of the Code. WHEREAS , certain members of the RemainCo Group, on the one hand, and certain members of the SpinCo Group, on the other hand, file certain Tax Returns on a consolidated, combined, or unitary basis for certain federal, state, local, and foreign Tax purposes; and WHEREAS , the Parties desire to (a) provide for the payment of Tax liabilities and entitlement to refunds thereof, allocate responsibility for, and cooperation in, the filing of Tax Returns, and provide for certain other matters relating to Taxes, and (b) set forth certain covenants and indemnities relating to the preservation of the Tax-Free Status of the Transactions. NOW, THEREFORE , in consideration of the foregoing and the mutual agreements, provisions and covenants contained in this Agreement, the Parties hereby agree as follows: 3 TABLE OF CONTENTS ARTICLE I DEFINITIONS Section 1.1 General . As used in this Agreement (including the recitals hereof), the following terms shall have the following meanings: (1) “ Active Trade or Business ” means, with respect to SpinCo or any member of the SpinCo Group, the active conduct (as defined in Section 355(b)(2) of the Code and the Treasury Regulations thereunder) of the SpinCo Business as conducted by such entity immediately prior to the Distribution. (2) “ Adjustment ” shall mean an adjustment of any item of income, gain, loss, deduction, credit, or any other item affecting Taxes of a taxpayer pursuant to a Final Determination. (3) “ Agreement ” shall have the meaning set forth in the preamble hereto. (4) “ Controlling Party ” shall mean, with respect to a Tax Contest, the Party entitled to control such Tax Contest pursuant to Sections 6.2 and 6.3 of this Agreement. (5) “ Employment Tax ” shall mean those Liabilities for Taxes which are allocable pursuant to the provisions of the Employee Matters Agreement. (6) “ Federal Income Tax ” shall mean (a) any Tax imposed by Subtitle A of the Code other than an Employment Tax, and (b) any interest, penalties, additions to tax, or additional amounts in respect of the foregoing. (7) “ Fifty-Percent or Greater Interest ” shall have the meaning ascribed to such term for purposes of Section 355(d) and (e) of the Code. (8) “ Final Determination ” shall mean the final resolution of liability for any Tax for any taxable period, by or as a result of (a) a final decision, judgment, decree, or other order by any court of competent jurisdiction that can no longer be appealed, (b) a final settlement with the IRS, a closing agreement or accepted offer in compromise under Section 7121 or 7122 of the Code, or a comparable agreement under the Laws of a state, local, or foreign taxing jurisdiction, which resolves the entire Tax liability for any taxable period, (c) 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 or credit may be recovered (including by way of withholding or offset) by the jurisdiction imposing the Tax, or (d) any other final resolution, including by reason of the expiration of the applicable statute of limitations or the execution of a pre-filing agreement with the IRS or other Taxing Authority. (9) “ Income Tax ” means all Taxes based upon, measured by, or calculated with respect to (i) net income or profits (including any capital gains, minimum Tax or any Tax on items of tax preference, but not including sales, use, real or personal property, gross or net receipts, value added, excise, leasing, transfer or similar Taxes), or (ii) multiple bases (including corporate franchise, doing business and occupation Taxes) if one or more bases upon which such Tax is determined is described in clause (i) of this definition, together with any interest, penalty, additions to tax, or additional amounts in respect of the foregoing. (10) “ Indemnifying Party ” shall have the meaning set forth in Section 5.2 . (11) “ Indemnitee ” shall have the meaning set forth in Section 5.2 . (12) “ Internal Distribution ” shall mean any transaction (or series of transactions) effected as part of the Transactions (other than the SpinCo Contribution and the Distribution) that is intended to qualify as a tax-free transaction under Section 355 and/or Section 368(a)(1)(D) of the Code, as described in the Tax Materials. (13) “ IRS ” shall mean the U.S. Internal Revenue Service or any successor agency, including, but not limited, to its agents, representatives, and attorneys. (14) “ IRS Ruling ” shall mean any U.S. federal income tax ruling issued to RemainCo by the IRS in connection with the Transactions. 4 TABLE OF CONTENTS (15) “ IRS Ruling Request ” shall mean the letter filed by RemainCo with the IRS requesting a ruling regarding certain U.S. federal income tax consequences of the Transactions and any amendment or supplement to such ruling request letter. (16) “ Joint Return ” shall mean any Tax Return that includes, by election or otherwise, one or more members of the RemainCo Group together with one or more members of the SpinCo Group. (17) “ Non-Controlling Party ” shall mean, with respect to a Tax Contest, the Party that is not the Controlling Party with respect to such Tax Contest. (18) “ Parties ” shall have the meaning set forth in the preamble hereto. (19) “ Past Practices ” shall have the meaning set forth in Section 3.5 . (20) “ Post-Distribution Period ” shall mean any taxable period (or portion thereof) beginning after the Distribution Date, including the portion of any Straddle Period beginning after the Distribution Date. (21) “ Pre-Distribution Period ” shall mean any taxable period (or portion thereof) ending on or before the Distribution Date, including the portion of any Straddle Period ending at the end of the day on the Distribution Date. (22) “ Proposed Acquisition Transaction ” shall mean a transaction or series of transactions (or any agreement, understanding, or arrangement, within the meaning of Section 355(e) of the Code and Treasury Regulation Section 1.355-7, or any other Treasury Regulations promulgated thereunder, to enter into a transaction or series of transactions), whether such transaction is supported by SpinCo management or shareholders, is a hostile acquisition, or otherwise, as a result of which SpinCo (or any successor thereto) would merge or consolidate with any other Person or as a result of which one or more Persons would (directly or indirectly) acquire, or have the right to acquire, from SpinCo (or any successor thereto) and/or one or more holders of SpinCo Capital Stock, respectively, any amount of SpinCo Capital Stock, that would, when combined with any other direct or indirect changes in ownership of SpinCo Capital Stock pertinent for purposes of Section 355(e) of the Code and the Treasury Regulations promulgated thereunder (and treating any shares of SpinCo Common Stock owned by RemainCo immediately after the Distribution as having undergone such a change in ownership on the Distribution Date, except to the extent such shares are subsequently distributed in a Back-End Distribution), comprise forty percent (40%) or more of (i) the value of all outstanding shares of stock of SpinCo as of immediately after such transaction, or in the case of a series of transactions, immediately after the last transaction of such series, or (ii) the total combined voting power of all outstanding shares of voting stock of SpinCo as of immediately after such transaction, or in the case of a series of transactions, immediately after the last transaction of such series. Notwithstanding the foregoing, a Proposed Acquisition Transaction shall not include (i) the adoption by SpinCo of a shareholder rights plan, or (ii) issuances by SpinCo 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 the Treasury Regulations promulgated thereunder and shall be interpreted accordingly. Any clarification of, or change in, the statute or Treasury Regulations promulgated under Section 355(e) of the Code shall be incorporated in this definition and its interpretation. (23) “ Reasonable Basis ” shall mean a reasonable basis within the meaning of Section 6662(d)(2)(B)(ii)(II) of the Code and the Treasury Regulations promulgated thereunder (or such other level of confidence required by the Code at that time to avoid the imposition of penalties). (24) “ Refund ” shall mean any refund, reimbursement, offset, credit, or other similar benefit in respect of Taxes (including any overpayment of Taxes that can be refunded or, alternatively, applied against other Taxes payable), including any interest paid on or with respect to such refund of Taxes; provided , however , that the amount of any refund of Taxes shall be net of any Taxes imposed by any Taxing Authority on, related to, or attributable to, the receipt of or accrual of such refund, including any Taxes imposed by way of withholding or offset. 5 TABLE OF CONTENTS (25) “ RemainCo ” shall have the meaning set forth in the preamble hereto. (26) “ RemainCo Affiliated Group ” shall mean the affiliated group (as that term is defined in Section 1504 of the Code and the Treasury Regulations thereunder) of which RemainCo is the common RemainCo. (27) “ RemainCo Federal Consolidated Income Tax Return ” shall mean any U.S. Federal Income Tax Return for the RemainCo Affiliated Group. (28) “ RemainCo Separate Return ” shall mean any Tax Return of or including any member of the RemainCo Group (including any consolidated, combined, or unitary return) that does not include any member of the SpinCo Group. (29) “ Responsible Party ” shall mean, with respect to any Tax Return, the Party having responsibility for preparing and filing such Tax Return pursuant to this Agreement. (30) “ Restricted Period ” shall mean the period which begins with the Distribution Date and ends two (2) years thereafter. (31) “ Separate Return ” shall mean a RemainCo Separate Return or a SpinCo Separate Return, as the case may be. (32) “ Separation Agreement ” shall have the meaning set forth in the preamble hereto. (33) “ SpinCo ” shall have the meaning set forth in the preamble hereto. (34) “ SpinCo Capital Stock ” shall mean all classes or series of capital stock of SpinCo, including (i) SpinCo Common Stock, (ii) all options, warrants, and other rights to acquire such capital stock, and (iii) all other instruments properly treated as stock of SpinCo for U.S. federal income tax purposes. (35) “ SpinCo Disqualifying Action ” shall mean (i) any action (or failure to take any action) by any member of the SpinCo Group after the Distribution (including entering into any agreement, understanding, arrangement, or negotiations with respect to any transaction or series of transactions), (ii) any event (or series of events) after the Distribution involving SpinCo Capital Stock or the assets of any member of the SpinCo Group, or (iii) any breach by any member of the SpinCo Group after the Distribution of any representation, warranty, or covenant made by them in this Agreement, that, in each case, would adversely affect the Tax-Free Status of the Transactions; provided , however , that the term “SpinCo Disqualifying Action” shall not include any action entered into pursuant to any Ancillary Agreement (other than this Agreement) or that is undertaken pursuant to the Internal Reorganization or the Distribution. (36) “ SpinCo Separate Return ” shall mean any Tax Return of or including any member of the SpinCo Group (including any consolidated, combined, or unitary return) that does not include any member of the RemainCo Group. (37) “ State Tax ” shall mean (i) any Tax imposed by any State of the United States or by any political subdivision of any such State, and (ii) any interest, penalties, additions to tax, or additional amounts in respect of the foregoing. (38) “ Straddle Period ” shall mean any taxable period that begins on or before, and ends after, the Distribution Date. (39) “ Tax ” or “ Taxes ” shall mean (i) all taxes, charges, fees, duties, levies, imposts, rates, or other assessments or governmental charges of any kind imposed by any federal, state, local, or foreign Taxing Authority, including, without limitation, income, gross receipts, employment, estimated, excise, severance, stamp, occupation, premium, windfall profits, environmental, custom duties, property, sales, use, license, capital stock, transfer, franchise, registration, payroll, withholding, social security, unemployment, disability, value added, alternative or add-on minimum, or other taxes, whether disputed or not, and including any interest, penalties, charges, or additions attributable thereto, (ii) liability for the payment of any amount of the type described in clause (i) above arising as a result of being (or having been) a member of any consolidated, combined, unitary, or similar group or being (or having been) included or required to be included in any Tax Return related thereto, and (iii) liability for the payment of any amount of the type 6 TABLE OF CONTENTS described in clauses (i) or (ii) above as a result of any express or implied obligation to indemnify or otherwise assume or succeed to the liability of any other Person, whether by contract, by operation of law, or otherwise. (40) “ Tax Advisor ” shall mean a tax counsel or accountant of recognized national standing. (41) “ Tax Attribute ” shall mean net operating losses, capital losses, research and experimentation credit carryovers, investment tax credit carryovers, earnings and profits, foreign tax credit carryovers, overall foreign losses, overall domestic losses, previously taxed earnings and profits, separate limitation losses, and any other losses, deductions, credits, or other comparable items that could affect a Tax liability for a past or future taxable period. (42) “ Tax Certificates ” shall mean any officer’s certificates, representation letters, or similar documents provided by RemainCo and SpinCo to Skadden, Arps, Slate, Meagher & Flom LLP or any other law or accounting firm in connection with any Tax Opinion delivered or deliverable to RemainCo in connection with the Transactions. (43) “ Tax Contest ” shall have the meaning set forth in Section 6.1 . (44) “ Tax-Free Status of the Transactions ” shall mean (i) the qualification of the Distribution, together with the SpinCo Contribution, as a “reorganization” pursuant to Section 355 and Section 368(a)(1)(D) of the Code, and (ii) the qualification of the Distribution (and any Back-End Distribution) as a transaction in which the SpinCo Common Stock distributed to holders of RemainCo Common Stock is “qualified property” for purposes of Section 361(c) of the Code, (iii) the nonrecognition of income, gain or loss by RemainCo, SpinCo and holders of RemainCo Common Stock will not recognize income, gain or loss on the SpinCo Contribution and the Distribution (and any Back-End Distribution) under Sections 355, 361 and 1032 of the Code (except with respect to any cash received in lieu of fractional shares of SpinCo Common Stock); (iv) the qualification of any Equity-for-Debt Exchange as a transfer of “qualified property” to creditors of RemainCo in connection with the reorganization within the meaning of Section 361(c) of the Code, and (v) the qualification of the transactions described on Schedule A as being free from Tax to the extent set forth therein. (45) “ Tax Item ” shall mean any item of income, gain, loss, deduction, or credit, or any other item which increases or decreases Taxes paid or payable in any taxable period. (46) “ Tax Law ” shall mean the law of any governmental entity or political subdivision thereof relating to any Tax. (47) “ Tax Materials ” shall have the meaning set forth in Section 4.1(a) . (48) “ Tax Opinion ” shall mean any written opinion delivered or deliverable to RemainCo by Skadden, Arps, Slate, Meagher & Flom LLP or any other law or accounting firm regarding the tax consequences of the Transactions. (49) “ Tax Records ” shall have the meaning set forth in Section 8.1 . (50) “ Tax-Related Losses ” shall mean, with respect to any Taxes, (i) all accounting, legal and other professional fees, and court costs incurred in connection with such Taxes, as well as any other out-of-pocket costs incurred in connection with such Taxes, and (ii) all costs, expenses and damages associated with stockholder litigation or controversies and any amounts paid by RemainCo (or any of its Affiliates) or SpinCo (or any of its Affiliates) in respect of the liability of shareholders, whether paid to shareholders or to the IRS or any other Taxing Authority, in each case, resulting from the failure of the Transactions to qualify for the Tax-Free Status of the Transactions. (51) “ Tax-Related Losses Tax Contest ” means a Tax Contest that relates to the Tax-Free Status of the Transactions. (52) “ Tax Return ” shall mean any return, report, certificate, form, or similar statement or document (including any related supporting information or schedule attached thereto and any information return, amended tax return, claim for refund or declaration of estimated tax) supplied to or filed with, or required 7 TABLE OF CONTENTS to be supplied to or filed with, a Taxing Authority, or any bill for or notice related to ad valorem or other similar Taxes received from a Taxing Authority, in each case, in connection with the determination, assessment, or collection of any Tax or the administration of any laws, regulations, or administrative requirements relating to any Tax. (53) “ Taxing Authority ” shall mean any governmental authority or any subdivision, agency, commission, or entity thereof having jurisdiction over the assessment, determination, collection, or imposition of any Tax (including the IRS). (54) “ Transactions ” shall mean the Internal Reorganization (including the SpinCo Contribution), the Distribution, the SpinCo Cash Purge, any Equity-for-Debt Exchange, any other transaction described in the Reorganization Step Plan, and any related transactions. (55) “ Transaction Taxes ” shall mean all Transfer Taxes and other Taxes imposed on or with respect to the Transactions, including any and all Taxes with respect to or required to be reported on any Joint Return as a result of any “excess loss account” or “deferred intercompany transaction” required to be taken into account pursuant to the Treasury Regulations under Section 1502 of the Code (or any similar provision of state, local or foreign Law) as a result of the Transactions; provided , however , that Transaction Taxes shall not include (i) any Taxes resulting from the failure of the Transactions to qualify for the Tax-Free Status of the Transactions or (ii) any amounts for which SpinCo has an indemnification obligation pursuant to Section 5.1(b)(ii) . (56) “ Transfer Tax ” shall mean (i) all transfer, sales, use, excise, stock, stamp, stamp duty, stamp duty reserve, stamp duty land, documentary, filing, recording, registration, value-added and other similar Taxes (excluding any income, gains, profits, or similar Taxes, however assessed), and (ii) any interest, penalties, additions to tax, or additional amounts in respect of the foregoing. (57) “ Treasury Regulations ” shall mean the regulations promulgated from time to time under the Code as in effect for the relevant taxable period. (58) “ Unqualified Tax Opinion ” shall mean an unqualified “will” opinion of a Tax Advisor, which Tax Advisor is acceptable to RemainCo, on which RemainCo may rely to the effect that a transaction will not affect the Tax-Free Status of the Transactions. Any such opinion must assume that the Transactions would have qualified for Tax-Free Status of the Transactions if the transaction in question did not occur. Section 1.2 References; Interpretation . Section 1.2 of the Separation Agreement shall apply to this Agreement mutatis mutandis . ARTICLE II PAYMENTS AND TAX REFUNDS Section 2.1 Allocation of Tax Liabilities . Except as otherwise provided in this Article II and Section 5.1 , Taxes shall be allocated as follows: (a) Allocation of Taxes Relating to Joint Returns . RemainCo shall pay and be responsible for any and all Taxes due with respect to or required to be reported on any Joint Return (including any increase in such Tax as a result of a Final Determination) for all taxable periods (excluding any Transaction Taxes allocated to SpinCo pursuant to Section 2.3 ). (b) Allocation of Taxes Relating to Separate Returns . (i) RemainCo shall pay (or caused to be paid) and be responsible for any and all Taxes due with respect to or required to be reported on any RemainCo Separate Return (including any increase in such Tax as a result of a Final Determination) for all taxable periods (excluding any Transaction Taxes allocated to SpinCo pursuant to Section 2.3 ). (ii) SpinCo shall pay (or cause to be paid) and be responsible for any and all Taxes due with respect to or required to be reported on any SpinCo Separate Return (including any increase in such Tax as a result of a Final Determination) for all taxable periods (excluding any Transaction Taxes allocated to the RemainCo Group pursuant to Section 2.3 ). 8 TABLE OF CONTENTS Section 2.2 Employment Taxes . Liability for Employment Taxes shall be determined pursuant to the Employee Matters Agreement. Section 2.3 Transaction Taxes . (a) Except as provided in Section 2.3(c) , RemainCo shall pay (or cause to be paid) and be responsible for any and all Transaction Taxes (i) for which any member of the RemainCo Group is responsible under applicable Tax Law or (ii) with respect to or required to be reported on any Joint Return. (b) SpinCo shall pay (or cause to be paid) and be responsible for any and all Transaction Taxes for which any member of the SpinCo Group is responsible under applicable Tax Law (excluding any Transaction Taxes with respect to or required to be reported on any Joint Return). (c) SpinCo shall be responsible for any and all Transaction Taxes described on Schedule B , as reasonably determined by RemainCo in its good faith discretion. Section 2.4 Tax Refunds . (a) RemainCo shall be entitled to all Refunds related to Taxes the liability for which is allocated to RemainCo pursuant to this Agreement. SpinCo shall be entitled to all Refunds related to Taxes the liability for which is allocated to SpinCo pursuant to this Agreement. (b) SpinCo shall pay to RemainCo any Refund received by SpinCo or any member of the SpinCo Group that is allocable to RemainCo pursuant to this Section 2.4 no later than fifteen (15) Business Days after the receipt of such Refund. RemainCo shall pay to SpinCo any Refund received by RemainCo or any member of the RemainCo Group that is allocable to SpinCo pursuant to this Section 2.4 no later than fifteen (15) Business Days after the receipt of such Refund. For purposes of this Section 2.4 , any Refund that arises as a result of an offset, credit, or other similar benefit in respect of Taxes other than a receipt of cash shall be deemed to be received on the earlier of (i) the date on which a Tax Return is filed claiming such offset, credit, or other similar benefit, and (ii) the date on which payment of the Tax which would have otherwise been paid absent such offset, credit, or other similar benefit is due (determined without taking into account any applicable extensions). Section 2.5 Tax Benefits . If RemainCo determines, in its good faith discretion, that (i) one Party is responsible for a Tax pursuant to this Agreement or under applicable Tax Law, and (ii) the other Party is entitled to a deduction, credit, or other Tax benefit in respect of such Tax, then the Party entitled to such deduction, credit, or other Tax benefit shall pay to the Party responsible for such Tax the amount of the Tax benefit arising from such deduction, credit, or other Tax benefit, as determined by RemainCo in its good faith discretion. Section 2.6 Prior Agreements . Except as set forth in this Agreement and in consideration of the mutual indemnities and other obligations of this Agreement, any and all prior Tax sharing or allocation agreements or practices between any member of the RemainCo Group and any member of the SpinCo Group shall be terminated with respect to the SpinCo Group as of the Distribution Date. No member of the SpinCo Group or the RemainCo Group shall have any continuing rights or obligations to any member of the other Group under any such agreement. ARTICLE III PREPARATION AND FILING OF TAX RETURNS Section 3.1 RemainCo’s Responsibility . RemainCo shall prepare and file when due (taking into account any applicable extensions), or shall cause to be so prepared and filed, all Joint Returns and all RemainCo Separate Returns, including any amendments to such Tax Returns. Section 3.2 SpinCo’s Responsibility . SpinCo shall prepare and file when due (taking into account any applicable extensions), or shall cause to be so prepared and filed, all Tax Returns, including any amended Tax Returns, required to be filed by or with respect to members of the SpinCo Group other than those Tax Returns which RemainCo is required to prepare and file under Section 3.1 . The Tax Returns required 9 TABLE OF CONTENTS to be prepared and filed by SpinCo under this Section 3.2 shall include any SpinCo Separate Returns and any amended SpinCo Separate Returns. Section 3.3 Right To Review Tax Returns . To the extent that the positions taken on any Tax Return would reasonably be expected to materially affect the Tax position of the Party other than the Party that is required to prepare and file any such Tax Return pursuant to Section 3.1 or 3.2 (the “ Reviewing Party ”), the Party required to prepare and file such Tax Return (the “ Preparing Party ”) shall prepare the portion of such Tax Return that relates to the business of the Reviewing Party (the RemainCo Business or the SpinCo Business, as the case may be), shall provide a draft of such portion of such Tax Return to the Reviewing Party for its review and comment at least thirty (30) days prior to the due date for such Tax Return (taking into account any applicable extensions), and shall modify such portion of such Tax Return before filing to include the Reviewing Party’s reasonable comments. Section 3.4 Cooperation . The Parties shall provide, and shall cause their Affiliates to provide, assistance and cooperation to one another in accordance with Article VII with respect to the preparation and filing of Tax Returns, including providing information required to be provided under Article VIII . Notwithstanding anything to the contrary in this Agreement, RemainCo shall not be required to disclose to SpinCo any consolidated, combined, unitary, or other similar Joint Return of which a member of the RemainCo Group is the common parent or any information related to such a Joint Return other than information relating solely to the SpinCo Group. If an amended Separate Return for State Taxes for which SpinCo is responsible under this Article III is required to be filed as a result of an amendment made to a Joint Return for Federal Income Tax pursuant to an audit adjustment, then the Parties shall cooperate to ensure that such amended Separate Return can be prepared and filed in a manner that preserves confidential information including through the use of third-party preparers. Section 3.5 Transfer Pricing Documentation . SpinCo shall prepare any transfer pricing documentation required to be prepared with respect to a Tax Return for which SpinCo is responsible under Section 3.2 . SpinCo shall provide to RemainCo any transfer pricing documentation required to be prepared with respect to any such Tax Return for any taxable period that begins on or before the second anniversary of the Distribution Date at least thirty (30) days prior to the finalization of such transfer pricing documentation, RemainCo shall be entitled to review and provide comments on such transfer pricing documentation, and SpinCo shall modify such transfer pricing documentation prior to its finalization to include RemainCo’s reasonable comments. Section 3.6 Tax Reporting Practices. Except as provided in Section 3.7 , with respect to any Tax Return for any taxable period that begins on or before the second anniversary of the Distribution Date with respect to which SpinCo is the Responsible Party, such Tax Return shall be prepared in a manner (i) consistent with past practices, accounting methods, elections and conventions (“ Past Practices ”) used with respect to the Tax Returns in question (unless there is no Reasonable Basis for the use of such Past Practices), and to the extent any items are not covered by Past Practices (or in the event that there is no Reasonable Basis for the use of such Past Practices), in accordance with reasonable Tax accounting practices selected by SpinCo; and (ii) that, to the extent consistent with clause (i), minimizes the overall amount of Taxes due and payable on such Tax Return for all of the Parties by cooperating in making such elections or applications for group or other relief or allowances available in the taxing jurisdiction in which such Tax Return is filed. SpinCo shall not take any action inconsistent with the assumptions made (including with respect to any Tax Item) in determining all estimated or advance payments of Taxes on or prior to the Distribution Date. In addition, SpinCo (i) shall not be permitted, and shall not permit any member of the SpinCo Group, without RemainCo’s prior written consent, to make a change in any of its methods of accounting for Tax purposes for any taxable period that begins on or before the second anniversary of the Distribution Date, and (ii) shall notify RemainCo of, and consider in good faith any reasonable comments provided by RemainCo regarding, any such change in method of accounting for any taxable period that begins after the second anniversary of the Distribution Date and on or before the fourth anniversary of the Distribution Date. Such notification and consideration described in clause (ii) of the preceding sentence shall occur prior to the making of any such change in method of accounting. Section 3.7 Protective Section 336(e) Election . After the date hereof, RemainCo shall determine, in its sole and absolute discretion, whether to make a protective election under Section 336(e) of the Code and the Treasury Regulations promulgated thereunder (and any corresponding or analogous provisions of 10 TABLE OF CONTENTS state and local Tax Law) in connection with the Distribution with respect to SpinCo and each other member of the SpinCo Group that is a domestic corporation for U.S. federal income tax purposes (a “ Section 336(e) Election ”). If RemainCo determines to make a Section 336(e) Election: (a) RemainCo, SpinCo, and their respective Affiliates shall cooperate in making the Section 336(e) Election, including by filing any statements, amending any Tax Returns, or taking such other actions as are reasonably necessary to carry out the Section 336(e) Election; (b) if the Distribution fails to qualify (in whole or in part) for the Tax-Free Status of the Transactions and SpinCo or any member of the SpinCo Group realizes an increase in Tax basis as a result of the Section 336(e) Election (the “ Section 336(e) Tax Basis ”), then the cash Tax savings realized by SpinCo and each member of the SpinCo Group as a result of the Section 336(e) Tax Basis shall be shared between RemainCo and SpinCo in the same proportion as the Taxes giving rise to the Section 336(e) Tax Basis were borne by RemainCo and SpinCo (after giving effect to the indemnification obligations in this Agreement) pursuant to Section 5.1 ; and (c) to the extent the Section 336(e) Election becomes effective, each Party agrees not to take any position (and to cause each of its Affiliates not to take any position) that is inconsistent with the Section 336(e) Election on any Tax Return, in connection with any Tax Contest, or otherwise, except as may be required by a Final Determination. Section 3.8 Payment of Taxes. (a) With respect to any Tax Return required to be filed pursuant to this Agreement, the Responsible Party shall remit or cause to be remitted to the applicable Taxing Authority in a timely manner any Taxes due in respect of any such Tax Return. (b) In the case of any Tax Return for which the Party that is not the Responsible Party is obligated pursuant to this Agreement to pay all or a portion of the Taxes reported as due on such Tax Return, the Responsible Party shall notify the other Party, in writing, of its obligation to pay such Taxes and, in reasonably sufficient detail, its calculation of the amount due by such other Party, and the Party receiving such notice shall pay such amount to the Responsible Party no later than the later of (i) five (5) Business Days prior to the date on which such payment is due, and (ii) fifteen (15) Business Days after the receipt of such notice. (c) With respect to any estimated Taxes, the Party that is or will be the Responsible Party with respect to any Tax Return that will reflect (or otherwise give credit for) such estimated Taxes shall remit or cause to be remitted to the applicable Taxing Authority in a timely manner any estimated Taxes due. In the case of any estimated Taxes for which the Party that is not the Responsible Party is obligated pursuant to this Agreement to pay all or a portion of the Taxes that will be reported as due on any Tax Return that will reflect (or otherwise give credit for) such estimated Taxes, the Responsible Party shall notify the other Party, in writing, of its obligation to pay such estimated Taxes and, in reasonably sufficient detail, its calculation of the amount due by such other Party and the Party receiving such notice shall pay such amount to the Responsible Party no later than the later of (i) five (5) Business Days prior to the date on which such payment is due, and (ii) fifteen (15) Business Days after the receipt of such notice. Section 3.9 Amended Returns and Carrybacks . (a) SpinCo shall not, and shall not permit any member of the SpinCo Group to, file or allow to be filed any request for an Adjustment for any Pre-Distribution Period without the prior written consent of RemainCo, such consent to be exercised in RemainCo’s sole and absolute discretion. (b) SpinCo shall, and shall cause each member of the SpinCo Group to, make any available elections to waive the right to carry back any Tax Attribute from a Post-Distribution Period to a Pre-Distribution Period. (c) SpinCo shall not, and shall cause each member of the SpinCo Group not to, without the prior written consent of RemainCo, make any affirmative election to carry back any Tax Attribute from a Post-Distribution Period to a Pre-Distribution Period, such consent to be exercised in RemainCo’s sole and absolute discretion. 11 TABLE OF CONTENTS (d) Receipt of consent by SpinCo or a member of the SpinCo Group from RemainCo pursuant to the provisions of this Section 3.9 shall not limit or modify SpinCo’s continuing indemnification obligation pursuant to Article V . Section 3.10 Tax Attributes . RemainCo shall in good faith advise SpinCo in writing of the amount (if any) of any Tax Attributes which RemainCo determines, in its sole and absolute discretion, shall be allocated or apportioned to the SpinCo Group under applicable Tax Law. SpinCo and all members of the SpinCo Group shall prepare all Tax Returns in accordance with such written notice. SpinCo agrees that it shall not dispute RemainCo’s determination of Tax Attributes. Notwithstanding anything herein to the contrary, RemainCo shall not be required in order to comply with this Section 3.10 to create or cause to be created any books and records or reports or other documents based thereon (including, without limitation, any “E&P studies,” “basis studies” or similar determinations) that it does not maintain or prepare in the ordinary course of business. ARTICLE IV TAX-FREE STATUS OF THE TRANSACTIONS Section 4.1 Representations and Warranties . (a) RemainCo, on behalf of itself and all other members of the RemainCo Group, hereby represents and warrants that (i) it has examined the IRS Ruling, the IRS Ruling Request, the Tax Opinion, the Tax Certificates, the Reorganization Step Plan, and any other materials delivered or deliverable in connection with the issuance of the IRS Ruling and the rendering of the Tax Opinion, in each case, as they exist as of the date hereof (collectively, the “ Tax Materials ”), and (ii) the facts presented and representations made therein, to the extent descriptive of or otherwise relating to RemainCo or any member of the RemainCo Group or the RemainCo Business, were or will be, at the time presented or represented and from such time until and including the Distribution Date, true, correct, and complete in all material respects. RemainCo, on behalf of itself and all other members of the RemainCo Group, hereby confirms and agrees to comply with any and all covenants and agreements in the Tax Materials applicable to RemainCo, any member of the RemainCo Group, or the RemainCo Business. (b) SpinCo, on behalf of itself and all other members of the SpinCo Group, hereby represents and warrants that (i) it has examined the Tax Materials, and (ii) the facts presented and representations made therein, to the extent descriptive of or otherwise relating to SpinCo or any member of the SpinCo Group or the SpinCo Business, were or will be, at the time presented or represented and from such time until and including the Distribution Date, true, correct, and complete in all material respects. SpinCo, on behalf of itself and all other members of the SpinCo Group, hereby confirms and agrees to comply with any and all covenants and agreements in the Tax Materials applicable to SpinCo, any member of the SpinCo Group, or the SpinCo Business. (c) Each of RemainCo, on behalf of itself and all other members of the RemainCo Group, and SpinCo, on behalf of itself and all other members of the SpinCo Group, represents and warrants that it knows of no fact or circumstance (after due inquiry) that may cause the Transactions to fail to qualify for the Tax-Free Status of the Transactions. (d) Each of RemainCo on behalf of itself and all other members of the RemainCo Group, and SpinCo, on behalf of itself and all other members of the SpinCo Group, represents and warrants that it has no plan or intention to take, fail to take, or cause or permit to be taken any action which is inconsistent with any of the statements or representations made or set forth in the Tax Materials. Section 4.2 Certain Restrictions Relating to the Tax-Free Status of the Transactions . (a) SpinCo, on behalf of itself and all other members of the SpinCo Group, hereby covenants and agrees that no member of the SpinCo Group will take, fail to take, or cause or permit to be taken (i) any action where such action or failure to act would be inconsistent with or cause to be untrue any statement, information, covenant, or representation in the Tax Materials, or (ii) any action where such action or failure to act constitutes a SpinCo Disqualifying Action. 12 TABLE OF CONTENTS (b) During the Restricted Period, SpinCo: (i) shall (1) maintain its status as a company engaged in the Active Trade or Business for purposes of Section 355(b)(2) of the Code, (2) not engage in any transaction (or transactions) that would cause SpinCo to cease to be a company engaged in the Active Trade or Business for purposes of Section 355(b)(2) of the Code, (3) cause each Affiliate of SpinCo whose Active Trade or Business is relied upon in the Tax Materials for purposes of qualifying a transaction as tax-free pursuant to Section 355 of the Code to maintain its status as a company engaged in such Active Trade or Business for purposes of Section 355(b)(2) of the Code, (4) not engage in any transaction (or transactions), or cause or permit an Affiliate of SpinCo to engage in any transaction (or transactions), that would (A) result in an Affiliate of SpinCo described in clause (3) to cease to be a company engaged in the relevant Active Trade or Business for purposes of Section 355(b)(2) of the Code or (B) reduce the number of full-time employees of an Affiliate of SpinCo described in clause (3) who are employed in the relevant Active Trade or Business (as determined for purposes of Section 355(b) of the Code) by more than twenty percent (20%) relative to the number of such full-time employees as of the Distribution Date, taking into account Section 355(b)(3) of the Code for purposes of clauses (1) through (4), and (5) not dispose of, or cause or permit an Affiliate of SpinCo to dispose of, directly or indirectly, any interest in an Affiliate of SpinCo described in clause (3); (ii) shall not voluntarily dissolve or liquidate itself, any Affiliate of SpinCo described in Section 4.2(b)(i) , or any Affiliate of SpinCo that that was a party to an Internal Distribution (including any action that is a liquidation for U.S. federal income tax purposes); (iii) shall not (1) enter into any Proposed Acquisition Transaction or, to the extent SpinCo has the right to prohibit any Proposed Acquisition Transaction, permit any Proposed Acquisition Transaction to occur, (2) redeem or otherwise repurchase (directly or through an Affiliate) any SpinCo stock, or rights to acquire SpinCo 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 of such Revenue Procedure by Revenue Procedure 2003-48), (3) amend its certificate of incorporation (or other organizational documents), or take any other action, whether through a stockholder vote or otherwise, affecting the relative voting rights of SpinCo Capital Stock (including through the conversion of any class of SpinCo Capital Stock into another class of SpinCo Capital Stock), (4) merge or consolidate with any other Person (or cause or permit any Affiliate of SpinCo that was a party to an Internal Distribution to merge or consolidate with any other Person), or (5) take any other action or actions (including any action or transaction that would be reasonably likely to be inconsistent with any of the statements and representations made or set forth in the Tax Materials) which in the aggregate, when combined with any other direct or indirect changes in ownership of SpinCo Capital Stock pertinent for purposes of Section 355(e) of the Code, would be reasonably likely to have the effect of causing or permitting one or more Persons (whether or not acting in concert) to acquire directly or indirectly stock representing a Fifty-Percent or Greater Interest in SpinCo (or in any Affiliate of SpinCo that was a party to an Internal Distribution) or otherwise jeopardize the Tax-Free Status of the Transactions; and (iv) shall not, and shall not cause or permit any member of the SpinCo Group to, sell, transfer, or otherwise dispose of or agree to, sell, transfer or otherwise dispose of (including in any transaction treated for U.S. federal income tax purposes as a sale, transfer, or disposition) assets (including any shares of capital stock of a Subsidiary) that, in the aggregate, constitute more than twenty percent (20%) of the consolidated gross assets of SpinCo or the SpinCo Group. The foregoing sentence shall not apply to (1) sales, transfers, or dispositions of assets in the ordinary course of business, (2) any cash paid to acquire assets from an unrelated Person in an arm’s-length transaction, (3) any assets transferred to a Person that is disregarded as an entity separate from the transferor for U.S. federal income tax purposes, or (4) any mandatory or optional repayment (or prepayment) of any indebtedness of SpinCo or any member of the SpinCo Group. The percentages of gross assets or consolidated gross assets of SpinCo or the SpinCo Group, as the case may be, sold, transferred, or otherwise disposed of, shall be based on the fair market value of the gross assets of SpinCo and the members of the SpinCo Group as of the Distribution Date. For purposes of this Section 4.2(b)(iv) , a merger of SpinCo or one of its Subsidiaries with and into any Person that is not a wholly-owned Subsidiary of SpinCo shall constitute a disposition of all of the assets of SpinCo or such Subsidiary. 13 TABLE OF CONTENTS (c) Notwithstanding the restrictions imposed by Section 4.2(b) , SpinCo or a member of the SpinCo Group may take any of the actions or transactions described therein if SpinCo either (i) obtains an Unqualified Tax Opinion in form and substance satisfactory to RemainCo in its sole and absolute discretion, or (ii) obtains the prior written consent of RemainCo waiving the requirement that SpinCo obtain an Unqualified Tax Opinion, such waiver to be provided in RemainCo’s sole and absolute discretion. RemainCo’s evaluation of an Unqualified Tax Opinion may consider, among other factors, the appropriateness of any underlying assumptions, representations, and covenants made in connection with such opinion (and RemainCo may determine that no opinion would be acceptable to RemainCo). SpinCo shall bear all costs and expenses of securing any such Unqualified Tax Opinion and shall reimburse RemainCo for all reasonable out-of-pocket expenses that RemainCo or any of its Affiliates may incur in good faith in seeking to obtain or evaluate any such Unqualified Tax Opinion. Neither the delivery of an Unqualified Tax Opinion nor RemainCo’s waiver of SpinCo’s obligation to deliver an Unqualified Tax Opinion shall limit or modify SpinCo’s continuing indemnification obligation pursuant to Article V . Section 4.3 Interpretation of Article IV . Notwithstanding anything to the contrary in this Agreement, the Parties acknowledge and agree that the purpose of this Article IV is to ensure the Tax-Free Status of the Transactions and, accordingly, that the language hereof shall be interpreted in a manner that serves such purpose to the greatest extent possible. ARTICLE V INDEMNITY OBLIGATIONS Section 5.1 Indemnity Obligations . Notwithstanding anything to the contrary in this Agreement: (a) RemainCo shall indemnify and hold harmless SpinCo from and against, and will reimburse SpinCo for, (i) all liability for Taxes allocated to RemainCo pursuant to Article II , (ii) all Taxes and Tax-Related Losses arising out of, based upon, or relating or attributable to any breach of or inaccuracy in, or failure to perform, as applicable, any representation, covenant, or obligation of any member of the RemainCo Group pursuant to this Agreement, and (iii) the amount of any Refund received by any member of the RemainCo Group that is allocated to SpinCo pursuant to Section 2.4(a) . (b) Without regard to whether an Unqualified Tax Opinion may have been provided or whether any action is permitted or consented to hereunder and notwithstanding anything else to the contrary contained herein, SpinCo shall indemnify and hold harmless RemainCo from and against, and will reimburse RemainCo for, (i) all liability for Taxes allocated to SpinCo pursuant to Article II , (ii) all Taxes and Tax-Related Losses arising out of, based upon, or relating or attributable to any breach of or inaccuracy in, or failure to perform, as applicable, any representation, covenant, or obligation of any member of the SpinCo Group pursuant to this Agreement, (iii) the amount of any Refund received by any member of the SpinCo Group that is allocated to RemainCo pursuant to Section 2.4(a) , and (iv) any Taxes and Tax-Related Losses attributable to a SpinCo Disqualifying Action (regardless of whether the conditions set forth in Section 4.2(c) are satisfied). (c) To the extent that any Tax or Tax-Related Loss is subject to indemnity pursuant to both Sections 5.1(a)(ii) (on the one hand) and 5.1(b)(ii) or (iv) (on the other hand), responsibility for such Tax or Tax-Related Loss shall be shared by RemainCo and SpinCo according to relative fault as determined by RemainCo in its good faith discretion. (d) All Taxes or Tax-Related Losses resulting from the failure of the Transactions to qualify for the Tax-Free Status of the Transactions, other than those Taxes or Tax Related Losses for which for which RemainCo is responsible pursuant to Section 5.1(a)(ii) or for which SpinCo is responsible pursuant to Section 5.1(b)(ii) or (iv) (or which are shared by RemainCo and SpinCo pursuant to Section 5.1(c) ), shall be borne 30% by SpinCo and 70% by RemainCo. Section 5.2 Indemnification Payments . (a) Except as otherwise provided in this Agreement, if either Party (the “ Indemnitee ”) is required to pay to a Taxing Authority a Tax or to another Person a payment in respect of a Tax that the other Party (the “ Indemnifying Party ”) is liable for under this Agreement, including as a result of a Final Determination, 14 TABLE OF CONTENTS the Indemnitee shall notify the Indemnifying Party, in writing, of its obligation to pay such Tax and, in reasonably sufficient detail, its calculation of the amount due by such Indemnifying Party to the Indemnitee, including any Tax-Related Losses attributable thereto. The Indemnifying Party shall pay such amount, including any Tax-Related Losses attributable thereto, to the Indemnitee no later than the later of (i) five (5) Business Days prior to the date on which such payment is due to the applicable Taxing Authority, and (ii) fifteen (15) Business Days after the receipt of notice from the other Party. (b) If, as a result of any change or redetermination, any amount previously allocated to and borne by one Party pursuant to the provisions of Article II is thereafter allocated to the other Party, then, no later than fifteen (15) Business Days after such change or redetermination, such other Party shall pay to the first Party the amount previously borne by such Party which is allocated to such other Party as a result of such change or redetermination. Section 5.3 Payment Mechanics . (a) All payments under this Agreement shall be made by RemainCo directly to SpinCo and by SpinCo directly to RemainCo; provided , however , that if the Parties mutually agree with respect to any such indemnification payment, any member of the RemainCo Group, on the one hand, may make such indemnification payment to any member of the SpinCo Group, on the other hand, and vice versa. All indemnification payments shall be treated in the manner described in Section 5.4 . (b) In the case of any payment of Taxes made by a Responsible Party or Indemnitee pursuant to this Agreement for which such Responsible Party or Indemnitee, as the case may be, has received a payment from the other Party, such Responsible Party or Indemnitee shall provide to the other Party a copy of any official government receipt received with respect to the payment of such Taxes to the applicable Taxing Authority (or, if no such official governmental receipts are available, executed bank payment forms or other reasonable evidence of payment). Section 5.4 Treatment of Payments . (a) The Parties agree that any payment made between the Parties pursuant to this Agreement shall be treated for all U.S. federal income tax purposes (and other applicable Tax purposes) as a distribution or capital contribution, as appropriate, occurring immediately prior to the Distribution or as the payment of an assumed or retained liability, except as otherwise required by applicable Tax Law or a Final Determination. Notwithstanding the foregoing, RemainCo shall notify SpinCo if it determines that any payment made pursuant to this Agreement is to be treated, for any Tax purposes, as a payment made by one Party acting as an agent of one of such Party’s Subsidiaries to the other Party acting as an agent of one of such other Party’s Subsidiaries, and the Parties agree to treat any such payment accordingly. (b) Any Tax indemnity payment made by a Party under this Agreement (an “ Indemnity Payment ” shall be (i) reduced to take into account any Tax benefit actually realized by the Indemnitee, resulting from the incurrence of the liability in respect of which the Indemnity Payment is made, in the Tax year of such liability or in any taxable period ending on or prior to the close of the Tax year of such liability and (ii) increased to take into account any Tax cost actually incurred by the Indemnitee resulting from the receipt of the Indemnity Payment, including any Tax cost arising from such Indemnity Payment having resulted in income or gain to either Party and any Taxes imposed on additional amounts payable pursuant to this clause (ii). For purposes of calculating the amount of any Tax benefit or Tax cost, the applicable Indemnitee shall be deemed to be subject to the maximum applicable statutory Tax rate in the applicable jurisdiction in the taxable year in which such Tax benefit or Tax cost was realized and any Tax Attributes of such Indemnitee shall be disregarded. ARTICLE VI TAX CONTESTS Section 6.1 Notice . Each Party shall notify the other Party in writing within thirty (30) days after receipt by such Party or any member of its Group of a written communication from any Taxing Authority with respect to any pending or threatened audit, examination, claim, dispute, suit, action, proposed assessment, or other proceeding (a “ Tax Contest ”) concerning any Taxes for which the other Party may be 15 TABLE OF CONTENTS liable pursuant to this Agreement, and thereafter shall promptly forward or make available to such Party copies of notices and communications relating to such Tax Contest. A failure by an Indemnitee to give notice as provided in this Section 6.1 (or to promptly forward any such notices or communications) shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. Section 6.2 Separate Returns . In the case of any Tax Contest with respect to any Separate Return, the Party having the liability for the Tax pursuant to Article II shall have the sole responsibility and right to control the prosecution of such Tax Contest, including the exclusive right to communicate with agents of the applicable Taxing Authority and to control, resolve, settle, or agree to any deficiency, claim, or adjustment proposed, asserted, or assessed in connection with or as a result of such Tax Contest. Section 6.3 Joint Returns . In the case of any Tax Contest with respect to any Joint Return, RemainCo shall have the sole responsibility and right to control the prosecution of such Tax Contest, including the exclusive right to communicate with agents of the applicable Taxing Authority and to control, resolve, settle, or agree to any deficiency, claim, or adjustment proposed, asserted, or assessed in connection with or as a result of such Tax Contest. Section 6.4 Obligation of Continued Notice . During the pendency of any Tax Contest or threatened Tax Contest, each of the Parties shall provide prompt notice to the other Party of any written communication received by it or a member of its respective Group from a Taxing Authority regarding any Tax Contest for which it is indemnified by the other Party hereunder or for which it may be required to indemnify the other Party hereunder. Such notice shall attach copies of the pertinent portion of any written communication from a Taxing Authority and contain factual information (to the extent known) describing any asserted Tax liability in reasonable detail and shall be accompanied by copies of any notice and other documents received from any Taxing Authority in respect of any such matters. Such notice shall be provided in a reasonably timely fashion; provided , however , that in the event that timely notice is not provided, a Party shall be relieved of its obligation to indemnify the other Party only to the extent that such delay results in actual increased costs or actual prejudice to such other Party. Section 6.5 Settlement Rights . Unless waived by the Parties in writing, in connection with any potential adjustment in a Tax Contest as a result of which adjustment the Non-Controlling Party may reasonably be expected to become liable to make any indemnification payment to the Controlling Party under this Agreement (i) the Controlling Party shall keep the Non-Controlling Party informed in a timely manner of all actions taken or proposed to be taken by the Controlling Party with respect to such potential adjustment in such Tax Contest, (ii) the Controlling Party shall timely provide the Non-Controlling Party with copies of any correspondence or filings submitted to any Taxing Authority or judicial authority in connection with such potential adjustment in such Tax Contest, and (iii) the Controlling Party shall defend such Tax Contest diligently and in good faith. The failure of the Controlling Party to take any action specified in the preceding sentence with respect to the Non-Controlling Party shall not relieve the Non-Controlling Party of any liability or obligation which it may have to the Controlling Party under this Agreement, and in no event shall such failure relieve the Non-Controlling Party from any other liability or obligation which it may have to the Controlling Party. ARTICLE VII COOPERATION Section 7.1 General . (a) Each Party shall fully cooperate, and shall cause all members of such Party’s Group to fully cooperate, with all reasonable requests in writing from the other Party, or from an agent, representative, or advisor of such Party, in connection with the preparation and filing of any Tax Return, claims for Refunds, the conduct of any Tax Contest, and calculations of amounts required to be paid pursuant to this Agreement, in each case, related or attributable to or arising in connection with Taxes of either Party or any member of either Party’s Group covered by this Agreement and the establishment of any reserve required in connection with any financial reporting (a “ Tax Matter ”). Such cooperation shall include the provision of any information reasonably necessary or helpful in connection with a Tax Matter and shall include, without limitation and, except as provided in Section 7.1(c) , without charge: 16 TABLE OF CONTENTS (i) the provision of any Tax Returns of either Party or any member of either Party’s Group, books, records (including information regarding ownership and Tax basis of property), documentation, and other information relating to such Tax Returns, including accompanying schedules, related work papers, and documents relating to rulings or other determinations by Taxing Authorities; (ii) the execution of any document (including any power of attorney) in connection with any Tax Contest of either Party or any member of either Party’s Group, or the filing of a Tax Return or a Refund claim of either Party or any member of either Party’s Group; (iii) the use of the Party’s commercially reasonable efforts to obtain any documentation in connection with a Tax Matter; and (iv) the use of the Party’s commercially reasonable efforts to obtain any Tax Returns (including accompanying schedules, related work papers, and documents), documents, books, records, or other information in connection with the filing of any Tax Returns of either Party or any member of either Party’s Group. (b) Any costs and expenses incurred for services of any third party required to be engaged to assist with a request made pursuant to Section 7.1(a) shall be borne by the Party that made such request. To the extent RemainCo obtains the services of any third party to assist with such a request, RemainCo shall select such third party in its good faith discretion. (c) Nothing contained in this Agreement, including this Section 7.1 , shall be construed to permit SpinCo to access RemainCo Separate Returns. Section 7.2 Third-Party Costs and Expenses . To the extent that SpinCo makes a request pursuant to Section 7.1 that requires RemainCo to incur any costs and expenses for services of any third party engaged by RemainCo to assist with such request, SpinCo shall reimburse RemainCo for all such costs and expenses. To the extent RemainCo obtains the services of any third party to assist with such a request, RemainCo shall select such third party in its good faith discretion. Section 7.3 Consistent Treatment . Unless and until there has been a Final Determination to the contrary, each Party agrees not to take any position on any Tax Return, in connection with any Tax Contest, or otherwise that is inconsistent with (i) the treatment of payments between the RemainCo Group and the SpinCo Group as set forth in Section 5.4 , (ii) the Tax Materials, or (iii) the Tax-Free Status of the Transactions. ARTICLE VIII RETENTION OF RECORDS; ACCESS Section 8.1 Retention of Records . For so long as the contents thereof may become material in the administration of any matter under applicable Tax Law, but in any event until the later of (i) sixty (60) days after the expiration of any applicable statutes of limitation (including any waivers or extensions thereof), and (ii) seven (7) years after the Distribution Date, the Parties shall retain records, documents, accounting data, and other information (including computer data) necessary for the preparation and filing of all Tax Returns (collectively, “ Tax Records ”) in respect of Taxes of any member of either the RemainCo Group or the SpinCo Group for any Pre-Distribution Period or Post-Distribution Period or for any Tax Contests relating to such Tax Returns. At any time after the Distribution Date when the RemainCo Group proposes to destroy any Tax Records, RemainCo shall first notify SpinCo in writing, and the SpinCo Group shall be entitled to receive such records or documents proposed to be destroyed. At any time after the Distribution Date when the SpinCo Group proposes to destroy any Tax Records, SpinCo shall first notify RemainCo in writing, and the RemainCo Group shall be entitled to receive such records or documents proposed to be destroyed. The Parties will notify each other in writing of any waivers or extensions of the applicable statute of limitations that may affect the period for which the foregoing records or other documents must be retained. Section 8.2 Access to Tax Records . The Parties and their respective Affiliates shall make available to each other for inspection and copying, during normal business hours upon reasonable notice, all Tax Records (including any pertinent underlying data accessed or stored on any computer program or information 17 TABLE OF CONTENTS technology system) in their possession. Nothing contained in this Agreement, including this Section 8.2 , shall be construed to permit SpinCo to access RemainCo Separate Returns. The Party seeking access to the records of the other Party shall bear all third-party costs and expenses associated with such access. ARTICLE IX DISPUTE RESOLUTION Section 9.1 Dispute Resolution . In the event of any dispute between the Parties as to any matter covered by this Agreement, the Parties shall appoint a nationally recognized independent public accounting firm (the “ Accounting Firm ”) to resolve such dispute. In this regard, the Accounting Firm shall make determinations with respect to the disputed items based solely on representations made by RemainCo, SpinCo, and their respective representatives, and not by independent review, and shall function only as an expert and not as an arbitrator and shall be required to make a determination in favor of one Party only. The Parties shall require the Accounting Firm to resolve all disputes no later than thirty (30) days after the submission of such dispute to the Accounting Firm, but in no event later than the due date for the payment of Taxes or the filing of the applicable Tax Return, if applicable, and agree that all decisions by the Accounting Firm with respect thereto shall be final and conclusive and binding on the Parties. The Accounting Firm shall resolve all disputes in a manner consistent with this Agreement and, to the extent not inconsistent with this Agreement, in a manner consistent with the Past Practices of RemainCo and its Subsidiaries, except as otherwise required by applicable Law. The Parties shall require the Accounting Firm to render all determinations in writing and to set forth, in reasonable detail, the basis for such determination. The fees and expenses of the Accounting Firm shall be borne equally by the Parties. ARTICLE X MISCELLANEOUS PROVISIONS Section 10.1 Conflicting Agreements . In the event and to the extent that there shall be a conflict between the provisions of this Agreement and the provisions of the Separation Agreement or any Ancillary Agreement, this Agreement shall control with respect to the subject matter hereof. Section 10.2 Interest on Late Payments . With respect to any payment between the Parties pursuant to this Agreement not made by the due date set forth in this Agreement for such payment, the outstanding amount will accrue interest at a rate per annum equal to the rate in effect for underpayments under Section 6621 of the Code from such due date to and including the payment date. Section 10.3 No Fiduciary Relationship . The duties and obligations of the Parties, and their respective successors and permitted assigns, contained herein are the extent of the duties and obligations contemplated by this Agreement; nothing in this Agreement is intended to create a fiduciary relationship between the Parties hereto, or any of their successors and permitted assigns, or create any relationship or obligations other than those explicitly described. Section 10.4 Further Assurances . In addition to the actions specifically provided for elsewhere in this Agreement, each of the Parties shall use its reasonable best efforts, prior to, on and after the Effective Time, to take, or cause to be taken, all actions, and to do, or cause to be done, all things, reasonably necessary, proper or advisable under applicable Laws, regulations and agreements to consummate and make effective the transactions contemplated by this Agreement. Section 10.5 Survival . Notwithstanding any other provision of this Agreement to the contrary, all representations, covenants, and obligations contained in this Agreement, and Liability for breach of any obligations contained herein, shall survive the Separation and Distribution and shall remain in full force and effect. Section 10.6 Predecessors or Successors . Any reference to RemainCo, SpinCo, their respective Subsidiaries, or any other Person in this Agreement shall include any predecessors or successors (e.g., by merger or other reorganization, liquidation, conversion, or election under Treasury Regulations Section 301.7701-3), of RemainCo, SpinCo, such Subsidiary, or such Person, respectively. 18 TABLE OF CONTENTS Section 10.7 Changes in Tax Law . Any reference to a provision of the Code, Treasury Regulations, or any other Tax Law shall be deemed to refer to the relevant provisions of any successor statute, regulation, or law and shall refer to such provisions as in effect from time to time. Section 10.8 Miscellaneous . Article X of the Separation Agreement (other than Sections 10.9 (Assignment) and 10.22 (Public Announcements)) shall apply to this Agreement mutatis mutandis ; provided that in the event of any conflict between the provisions of Article X of the Separation Agreement and this Agreement, the provisions of this Agreement shall control. Section 10.9 Distribution Date . This Agreement shall become effective only upon the Distribution Date. * * * * * [ End of page left intentionally blank ] 19 TABLE OF CONTENTS IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the day and year first above written. FEDEX CORPORATION By: /s/ Timothy W. Wright Name: Timothy W. Wright Title: Corporate Vice President, Tax FEDEX FREIGHT HOLDING COMPANY, INC. By: /s/ C. Edward Klank III Name: C. Edward Klank III Title: President |
