SEPARATION AND DISTRIBUTION AGREEMENT BY AND BETWEEN HEWLETT PACKARDENTERPRISE COMPANY AND SEATTLE SPINCO, INC. September 7,2016 TABLE OF CONTENTS

EX-2.2 3 d251902dex22.htm EX-2.2 EX-2.2

Exhibit 2.2

EXECUTION VERSION

SEPARATION AND DISTRIBUTION AGREEMENT

BY AND BETWEEN

HEWLETT PACKARD ENTERPRISE COMPANY

AND

SEATTLE SPINCO, INC.

September 7, 2016

TABLE OF CONTENTS


			Page

ARTICLE I DEFINITIONS				2
	Section 1.1	Certain Definitions		2
	Section 1.2	Other Terms		10

ARTICLE II THE REORGANIZATION				12
	Section 2.1	Transfer of Assets and Assumption of Liabilities Prior to the Distribution		12
	Section 2.2	Allocation of Assets		15
	Section 2.3	Allocation of Liabilities		17
	Section 2.4	Transfer of Excluded Assets and Assumption of Excluded Liabilities Not Effected at or Prior to the Distribution Time		19
	Section 2.5	Transfer of Seattle Assets and Assumption of Seattle Liabilities Not Effected at or Prior to the Distribution Time		22
	Section 2.6	Novation of Seattle Liabilities; Indemnification		24
	Section 2.7	Novation of Liabilities Other than Seattle Liabilities; Indemnification		25
	Section 2.8	Termination of Intercompany Contracts; Settlement of Intercompany Payables and Receivables		26
	Section 2.9	Shared Assets; Shared Contracts		26
	Section 2.10	Certain Adjustment		28
	Section 2.11	Bank Accounts		31
	Section 2.12	Disclaimer of Representations and Warranties		32
	Section 2.13	Post-Distribution Communications		33
	Section 2.14	Cooperation		33
	Section 2.15	Specified Cash Items		33
	Section 2.16	Certain Contracts		34
	Section 2.17	IT Platform		34

ARTICLE III THE DISTRIBUTION				34
	Section 3.1	Actions at or Prior to the Distribution Time		34
	Section 3.2	Conditions Precedent to the Distribution		36
	Section 3.3	The Distribution		37
	Section 3.4	Authorization of Seattle Common Stock to Accomplish the Distribution		39

ARTICLE IV ACCESS TO INFORMATION				39
	Section 4.1	Access to Information		39
	Section 4.2	Ownership of Information		40
	Section 4.3	Compensation for Providing Information		41
	Section 4.4	Record Retention		41
	Section 4.5	Liability for Information Provided		42
	Section 4.6	Other Agreements Providing for Exchange of Information		42


	Section 4.7	Production of Witnesses and Records in Connection with an Action	42
	Section 4.8	Counsel; Privileges; Legal Materials	43

ARTICLE V RELEASES			45
	Section 5.1	Release of Pre-Distribution Claims	45

ARTICLE VI INDEMNIFICATION, GUARANTEES AND LITIGATION			48
	Section 6.1	General Indemnification by Seattle	48
	Section 6.2	General Indemnification by Houston	49
	Section 6.3	Transfer Documents Indemnification	50
	Section 6.4	Contribution	50
	Section 6.5	Indemnification Obligations Net of Insurance Proceeds and Other Amounts	50
	Section 6.6	Certain Matters Relating to Indemnification of Third-Party Claims	51
	Section 6.7	Additional Matters	52
	Section 6.8	Exclusive Remedy	52
	Section 6.9	Survival of Indemnities	53
	Section 6.10	Guarantees	53
	Section 6.11	Management of Actions	54
	Section 6.12	Settlement of Actions	56

ARTICLE VII OTHER AGREEMENTS			56
	Section 7.1	Further Assurances	56
	Section 7.2	Confidentiality	57
	Section 7.3	Insurance Matters	59
	Section 7.4	Separation Expenses	60
	Section 7.5	Transaction Documents	61
	Section 7.6	Interest on Payments	62
	Section 7.7	Permits	62
	Section 7.8	Wind-down Usage Terms	62

ARTICLE VIII DISPUTE RESOLUTION			62
	Section 8.1	General	62
	Section 8.2	Negotiation Between Executives	63
	Section 8.3	Mandatory Mediation	63
	Section 8.4	Binding Arbitration	63
	Section 8.5	Interim Equitable Relief	65
	Section 8.6	Confidentiality of Negotiation, Mediation and Arbitration	65
	Section 8.7	Limitation on Certain Damages	65
	Section 8.8	No Effect on Other Commitments	66

ARTICLE IX MISCELLANEOUS			66
	Section 9.1	Corporate Power; Facsimile Signatures	66
	Section 9.2	Governing Law; Submission to Jurisdiction; Waiver of Trial	67
	Section 9.3	Survival of Covenants	67


Section 9.4	Waivers of Default	67
Section 9.5	Notices	67
Section 9.6	Termination	69
Section 9.7	Severability	69
Section 9.8	Entire Agreement	70
Section 9.9	Assignment; No Third-Party Beneficiaries	70
Section 9.10	Public Announcements	70
Section 9.11	Specific Performance	70
Section 9.12	Amendment	71
Section 9.13	Rules of Construction	71
Section 9.14	Counterparts	71
Section 9.15	Performance	71

iii

EXHIBITS


A		Form of Transition Services Agreement
B		Form of Tax Matters Agreement
C		Form of Employee Matters Agreement
D		Form of Real Estate Matters Agreement
E		Form of Intellectual Property Matters Agreement
F		Commercial Agreement Term Sheet
G		Wind-down Usage Terms

SCHEDULES


Schedule 1.1(32)		IP Contracts
Schedule 1.1(42)		Seattle Balance Sheet
Schedule 1.1(44)(a)(i)		Seattle Customer, Distribution, Supply or Vendor Contracts
Schedule 1.1(44)(g)		Other Seattle Contracts
Schedule 2.1(a)		Plan of Reorganization
Schedule 2.2(a)(i)		Certain Seattle Assets
Schedule 2.2(a)(ii)		Capital Stock of Seattle Subsidiaries
Schedule 2.2(a)(ix)(A)		Equipment and Furniture at Seattle Sites Retained by Houston
Schedule 2.2(a)(ix)(B)		Equipment and Furniture at Houston Sites Transferred to Seattle
Schedule 2.2(b)(i)		Certain Excluded Assets
Schedule 2.2(b)(iii)(A)		Capital Stock of Certain Houston Subsidiaries
Schedule 2.2(b)(iii)(B)		Capital Stock of Certain Other Houston Entities
Schedule 2.2(b)(iv)		Houston Contracts
Schedule 2.3(a)(i)		Certain Seattle Liabilities
Schedule 2.3(b)(i)		Certain Excluded Liabilities
Schedule 2.9(a)		Shared Assets
Schedule 2.9(b)		Shared Contracts
Schedule 2.10(a)(i)		Accounting Principles
Schedule 2.15(a)		Pension Cash
Schedule 2.16		Expense Caps
Schedule 3.1(c)(i)		Minimum Cash Amount
Schedule 6.10(a)(ii)		Houston Guarantees to Be Released
Schedule 6.11(a)		Seattle Actions
Schedule 6.11(b)		Houston Actions
Schedule 6.11(d)		Mixed Actions
Schedule 7.1(a)		Specified Cooperation Matters
Schedule 8.4(a)(i)		Pre-approved Arbitrators

SEPARATION AND DISTRIBUTION AGREEMENT

This SEPARATION AND DISTRIBUTION AGREEMENT, dated as of September 7, 2016 (this “Agreement”), is by and between Hewlett Packard Enterprise Company, a Delaware corporation (“Houston”), and Seattle SpinCo, Inc., a Delaware corporation (“Seattle”). Certain terms used in this Agreement are defined in Section 1.1.

W I T N E S S E T H:

WHEREAS, Houston, acting through itself and its direct and indirect Subsidiaries, currently conducts the Seattle Business;

WHEREAS, Seattle is a newly formed, wholly owned Subsidiary of Houston;

WHEREAS, Houston intends to separate the Seattle Business from the Houston Business and to cause the Seattle Assets to be transferred to Seattle and other members of the Seattle Group and to cause the Seattle Liabilities to be assumed by Seattle and other members of the Seattle Group, upon the terms and subject to the conditions set forth in this Agreement;

WHEREAS, Houston will distribute to the holders of the outstanding shares of common stock, $0.01 par value, of Houston (the “Houston Common Stock”) as of the close of business on the Record Date all of the issued and outstanding shares of the Class A common stock, $0.01 par value, of Seattle (the “Seattle Common Stock”) (a) by means of a pro rata distribution and in accordance with a distribution ratio to be determined by the Board of Directors of Houston (the “One-Step Spin-Off”) or (b) by way of an offer to exchange shares of Seattle Common Stock for outstanding shares of Houston Common Stock (the “Exchange Offer”) (followed by a Clean-Up Spin-Off) (in each case, the “Distribution”);

WHEREAS, pursuant to the Agreement and Plan of Merger, dated as of the date hereof (the “Merger Agreement”), by and among Houston, Seattle, Micro Focus International plc, a public limited company organized under the laws of England and Wales (“Miami”), Seattle Holdings, Inc., a Delaware corporation and newly formed direct wholly owned Subsidiary of Miami, and Seattle MergerSub Inc., a Delaware corporation and newly formed direct wholly owned Subsidiary of Miami (“Merger Sub”), immediately following the Distribution, Merger Sub will merge with and into Seattle (the “Merger”) and all shares of Seattle Common Stock will be converted into American Depositary Shares representing ordinary shares of Miami, upon the terms and subject to the conditions set forth in the Merger Agreement;

WHEREAS, the Board of Directors of Houston and the Board of Directors of Seattle have approved the Reorganization, the Distribution and the Merger;

WHEREAS, for U.S. federal income tax purposes, (i) the Contribution (as defined herein) and the Distribution (together with the Subsidiary Stock Exchange), taken together, are intended to qualify as a reorganization within the meaning of Sections 355 and 368(a)(1)(D) of the Code; and (ii) this Agreement is intended to constitute, and is hereby adopted as, a “plan of reorganization” within the meaning of Section 368 of the Code; and

WHEREAS, it is appropriate and desirable to set forth the principal corporate transactions required to effect the Reorganization and the Distribution and certain other agreements that will govern certain matters relating to the Reorganization, the Distribution and the ongoing relationship of Houston, Seattle and their respective Subsidiaries.

NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound hereby, agree as follows:

ARTICLE I

DEFINITIONS

Section 1.1 Certain Definitions. For purposes of this Agreement, the following terms shall have the meanings specified in this Section 1.1:

(1) “Accounting Principles” means the judgments, accounting methodologies (including with respect to accruals and reserves), policies, principles, practices, procedures and conventions expressly set forth on Schedule 2.10(a)(i) and, solely to the extent not expressly set forth on Schedule 2.10(a)(i), the judgments, accounting methodologies (including with respect to accruals and reserves), policies, principles, practices, procedures and conventions used in the preparation of the Seattle Balance Sheet, to the extent consistent with GAAP or, if not, GAAP.

(2) “Action” means any demand, action, claim, dispute, suit, countersuit, arbitration, inquiry, enforcement action, order, consent agreement, settlement agreement, subpoena, proceeding or investigation of any nature (whether criminal, civil, legislative, administrative, regulatory, prosecutorial or otherwise) by or before any federal, state, local, foreign or international Governmental Authority or any arbitration or mediation tribunal.

(3) “Affiliate” means, 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 purpose of this definition, “control” (including with correlative meanings, “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. It is expressly agreed that, for purposes of this Agreement, the other Transaction Documents and the Merger Agreement, (a) no member of the Seattle Group shall be deemed to be an Affiliate of any member of the Houston Group, and no member of the Houston Group shall be deemed to be an Affiliate of any member of the Seattle Group, from and after the Distribution Time, and (b) in no event shall HP Inc., a Delaware corporation, be deemed an Affiliate of any member of the Houston Group from and after November 1, 2015.

(4) “Approvals or Notifications” means any consents, waivers, approvals, permits or authorizations to be obtained from, notices, registrations or reports to be submitted to, or other filings to be made with, any third Person, including any Governmental Authority.

(5) “Assets” means any and all assets, properties, claims and rights (including goodwill), wherever located (including in the possession of vendors or other third Persons or elsewhere), of every kind, character and description, whether real, personal or mixed, tangible, intangible or contingent, 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 the applicable Person, including the following:

(a) all accounting and other books, records and files whether in paper, microfilm, microfiche, computer tape or disc, magnetic tape, electronic or any other form;

(b) all apparatus, computers and other electronic data processing and communications equipment, electronic storage equipment, fixtures, machinery, marketing and transportation systems and related facilities, equipment, furniture, automobiles, trucks, vessels, motor vehicles and other transportation equipment, tools, test devices, prototypes and models and other tangible personal property;

(c) all inventories of materials, parts, raw materials, components, supplies, work-in-process and finished goods and products;

(d) all interests in real property of whatever nature, including easements, whether as owner, mortgagee or holder of a Security Interest in real property, lessor, sublessor, lessee, sublessee or otherwise;

(e)(i) all interests in any capital stock or other equity interests of any Subsidiary or any other Person, (ii) all bonds, notes, debentures or other securities issued by any Subsidiary or any other Person, (iii) all loans, advances or other extensions of credit or capital contributions to any Subsidiary or any other Person and (iv) all other investments in securities of any Person;

(f) all license agreements, leases of personal property, open purchase orders for raw materials, supplies, parts or services and other Contracts;

(g) all deposits, letters of credit and performance and surety bonds;

(h) all written (including in electronic form) or oral technical information, data, specifications, research and development information, engineering drawings and specifications, operating and maintenance manuals, and materials and analyses prepared by consultants and other third Persons;

(i) all Intellectual Property Rights and Technology;

(j) all cost information, sales and pricing data, customer prospect lists, supplier records, customer and supplier lists, customer and vendor data and drawings, correspondence and lists, product data and literature, artwork, design, development, manufacturing and business process files and data, formulations and specifications, quality records and reports and other books, records, studies, surveys, reports, plans and documents;

(k) all prepaid expenses, trade accounts and other accounts and notes receivable;

(l) all rights under Contracts, all claims or rights against any Person, all rights in connection with any bids or offers and all claims, choses in action or similar rights, whether accrued or contingent;

(m) all licenses, permits, approvals and authorizations which have been issued by any Governmental Authority or other third Person;

(n) all cash or cash equivalents, bank accounts, lock boxes and other deposit arrangements; and

(o) all interest rate, currency, commodity or other swap, collar, cap or other hedging or similar agreements or arrangements.

(6) “Business Day” has the meaning set forth in the Merger Agreement.

(7) “Code” means the Internal Revenue Code of 1986, as amended.

(8) “Commercial Agreement” means the OEM Agreement to be entered into by and among Miami, Houston and Seattle on or prior to the Distribution Date, substantially on the terms attached as Exhibit F.

(9) “Contract” means any agreement, understanding, contract, license, obligation, indenture, instrument, lease, promise, commitment or undertaking (whether written or oral and whether express or implied) that is legally binding.

(10) “Contribution” means the transfer of the Seattle Assets and Seattle Liabilities to Seattle pursuant to the Reorganization.

(11) “Disclosure Documents” means (a) any registration statement to be filed by Seattle with the SEC to effect the registration of shares of Seattle Common Stock in connection with the Distribution, and also includes any amendment or supplement thereto, information statement, prospectus, offering memorandum, offering circular, periodic report or similar disclosure document, whether or not filed with the SEC or any other Governmental Authority, and (b) if the Distribution is effected in whole or in part as an Exchange Offer, a Schedule TO and other filings pursuant to Rule 13e-4 under the Exchange Act; in each case, which describes the Reorganization or the Seattle Group or primarily relates to the transactions contemplated hereby.

(12) “Distribution Agent” means Wells Fargo Shareowner Services.

(13) “Distribution Date” means the date on which Houston distributes all of the issued and outstanding shares of Seattle Common Stock to the holders of Houston Common Stock.

(14) “Distribution Time” means the time at which the Distribution occurs on the Distribution Date, which shall be deemed to be 12:01 a.m., New York City time.

(15) “Effective Time” has the meaning set forth in the Merger Agreement.

(16) “Employee Matters Agreement” means the Employee Matters Agreement in the form attached hereto as Exhibit C, entered into by and among Miami, Houston and Seattle as of the date hereof.

(17) “Environmental Condition” means the presence of Hazardous Materials in the environment, including soil, groundwater, surface water, ambient air or indoor air.

(18) “Environmental Law” means any Law relating to (a) the protection of human health or the environment or natural resources; (b) the use (including manufacturing and processing), emission, handling, transportation, distribution, treatment, storage, removal, recycling, disposal, Release or discharge of Hazardous Materials; (c) the assessment, investigation, remediation, removal or mitigation of Hazardous Materials; (d) the exposure of any individual or real property to a Release of Hazardous Materials; (e) recordkeeping, notification, disclosure and reporting requirements with respect to Hazardous Materials; and (f) occupational health and safety (as it relates to exposure to Hazardous Materials).

(19) “Exchange Act” means the United States Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC thereunder, all as the same shall be in effect at the time that reference is made.

(20) “GAAP” means generally accepted accounting principles in the United States.

(21) “Governmental Authority” means any nation or government, any state, municipality or other political subdivision thereof, and any entity, body, agency, commission, department, board, bureau, court, tribunal or other instrumentality, whether federal, state, local, domestic, foreign, transnational or multinational, exercising executive, legislative, judicial, regulatory, administrative or other similar functions of, or pertaining to, government.

(22) “Group” means the Houston Group or the Seattle Group, as the context requires.

(23) “Hazardous Materials” means any chemical, product, by-product, co-product, material, substance, waste, radioactive and biological materials, petroleum and petroleum products or any fraction thereof, pollutant, emission, discharge, release or contaminant (whether solid, liquid or gas, noise, ion, vapor or electromagnetic and whether individually, or incorporated into a product, or a constituent of waste) that is regulated by or pursuant to, or that can result in Liability under, any Environmental Law.

(24) “Houston Business” means the businesses and operations conducted prior to the Distribution Time by any member of the Houston Group that are not included in the Seattle Business.

(25) “Houston Group” means Houston and each Person (other than any member of the Seattle Group) that is a direct or indirect Subsidiary of Houston immediately after the Distribution Time, which shall include those entities set forth on Schedule 2.2(b)(iii)(A), and each Person that becomes a Subsidiary of Houston after the Distribution Time (including as a result of transactions that occur following the Distribution Time in accordance with the Plan of Reorganization).

(26) “Houston Retained IP” means Intellectual Property Rights owned by Houston or any member of the Houston Group immediately prior to the Distribution Time, except for Transferred IP.

(27) “Information” means information, in written, oral, electronic or other tangible or intangible forms, stored in any medium, including studies, reports, records, books, accountant’s work papers, contracts, instruments, surveys, designs, specifications, drawings, blueprints, diagrams, models, prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes, marketing plans, customer names, communications by or to attorneys (including attorney-client privileged communications), memoranda and other materials prepared by attorneys and accountants or under their direction (including attorney work product), and other technical, financial, employee or business information or data.

(28) “Insurance Policies” means insurance policies and insurance Contracts of any kind, including primary, excess and umbrella policies, comprehensive general liability policies, director and officer liability, fiduciary liability, automobile, aircraft, property and casualty, workers’ compensation and employee dishonesty insurance policies, bonds and self-insurance and captive insurance company arrangements, together with the rights, benefits and privileges thereunder.

(29) “Insurance Proceeds” means those monies (a) received by an insured from an insurance carrier, (b) paid by an insurance carrier on behalf of the insured or (c) received (including by way of setoff) from any third Person in the nature of insurance, contribution or indemnification in respect of any Liability; in any such case net of any applicable premium adjustments (including reserves and retrospectively-rated premium adjustments) and net of any costs or expenses, including Taxes, incurred in connection with the receipt thereof.

(30) “Intellectual Property Matters Agreement” means the Intellectual Property Matters Agreement in substantially the form attached hereto as Exhibit E, entered into or to be entered into by and among Houston, Hewlett Packard Enterprise Development LP and Seattle on or immediately prior to the Distribution Date.

(31) “Intellectual Property Rights” has the meaning set forth in the Intellectual Property Matters Agreement.

(32) “IP Contracts” means all (i) licenses, sublicenses, covenants not to sue or assert, consent to use agreements, co-development agreements, and other agreements related to the creation, improvement, or development of any Transferred IP or Transferred Technology, and (ii) other Contracts (including any right to receive or obligation to pay royalties or any other consideration) relating to Intellectual Property Rights or Technology, in each case of (i) and (ii), to which any member of the Seattle Group or the Houston Group is party and that exclusively relate to the operation of the Seattle Business. The Contracts set forth on Schedule 1.1(32) shall be deemed to be IP Contracts.

(33) “Law” means any national, foreign, international, multinational, supranational, federal, state, provincial, local or similar law (including common law), statute, code, order, directive, guidance, ordinance, rule, regulation, treaty (including any income tax treaty), license, permit, authorization, approval, consent, decree, injunction, binding judicial or administrative interpretation or other requirement, in each case, enacted, promulgated, issued or entered by a Governmental Authority.

(34) “Liabilities” means any and all debts, guarantees, liabilities, costs, expenses, interest and obligations, whether accrued or fixed, absolute or contingent, matured or unmatured, reserved or unreserved, or determined or determinable, and whether or not recorded or reflected or required to be recorded or reflected on the books and records or financial statements of the applicable Person, including those arising under any Law, claim, demand, Action, whether asserted or unasserted, or order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Authority and those arising under any Contract, release or warranty, or any fines, damages or equitable relief which may be imposed, in each case, including all costs and expenses relating thereto.

(35) “Party” means Houston or Seattle, as appropriate, and “Parties” means Houston and Seattle.

(36) “Person” means any individual, corporation, partnership, firm, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company, Governmental Authority or other entity.

(37) “Pension Cash” means the aggregate amount of cash held or pre-funded by any member of the Seattle Group as of the Effective Time pursuant to and in accordance with Section 2.15(a).

(38) “Real Estate Matters Agreement” means the Real Estate Matters Agreement, in substantially the form attached hereto as Exhibit D entered into or to be entered into by and between Houston and Seattle on or prior to the Distribution Date.

(39) “Record Date” means the close of business on the date determined by the Board of Directors of Houston (or a committee thereof) as the record date for the Distribution, to the extent the Distribution is effected through a One-Step Spin-Off, or in connection with a Clean-Up Spin-Off.

(40) “Release” means any release, spill, emission, discharge, leaking, pumping, pouring, dumping, injection, deposit, disposal, dispersal, leaching or migration of Hazardous Materials into the environment (including ambient air, surface water, groundwater and surface or subsurface strata) or within any building or facility.

(41) “Reorganization” means the transfer of the Seattle Assets that are not already owned by members of the Seattle Group to members of the Seattle Group and the assumption of the Seattle Liabilities that are not already owed by members of the Seattle Group by members of the Seattle Group, and the transfer of Excluded Assets that are not already owned by members of the Houston Group to members of the Houston Group and the assumption of the Excluded Liabilities that are not already owed by members of the Houston Group by the Houston Group, all as more fully described in this Agreement and the other Transaction Documents and including the steps set forth in the Plan of Reorganization.

(42) “Seattle Balance Sheet” means the combined unaudited pro forma pre-tax balance sheet of the Seattle Business as of April 30, 2016, as set forth on Schedule 1.1(42).

(43) “Seattle Business” means the software business of Houston, which as of the date hereof is conducted by the “Software” reporting segment of Houston, as such software business has been conducted and will be conducted in accordance with the Merger Agreement prior to the Distribution Time.

(44) “Seattle Contracts” means the following Contracts to which Houston or any of its Affiliates is a party or by which Houston or any of its Affiliates or any of their respective Assets is bound, in each case, immediately prior to the Distribution Time, except for any such Contract or part thereof that is expressly contemplated to be retained by or transferred to Houston or any member of the Houston Group pursuant to any provision of this Agreement or any other Transaction Document; provided that, in the case of any of the following Contracts that relate to Technology or Intellectual Property Rights where the provisions relating to Technology or Intellectual Property Rights are not incidental to the overall purpose of the Contract, the “Seattle Contracts” will only include IP Contracts:

(a) (i) any customer, distribution, supply or vendor Contracts listed or described on Schedule 1.1(44)(a)(i), and (ii) any customer, distribution, supply or vendor Contracts that exclusively relate to the Seattle Business;

(b) any joint venture agreement or license agreement that exclusively relates to the Seattle Business;

(c) any confidentiality or non-disclosure agreements entered into by Houston or its Affiliates in connection with the sale or disposition of all or substantially all of the Seattle Business;

(d) any Contract or part thereof to the extent providing for any guarantee, indemnity, representation, warranty or other similar Liability of, by or in favor of any member of the Seattle Group or of any member of the Houston Group to the extent in respect of a Seattle Liability or the Seattle Business;

(e) any Contract or part thereof that is otherwise expressly contemplated pursuant to this Agreement (including Shared Contacts, subject to Section 2.9) or any of the other Transaction Documents to be assigned to Seattle or any member of the Seattle Group;

(f) any IP Contract; and

(g) any Contract listed or described on Schedule 1.1(44)(g) (or any applicable licenses, leases, addenda or similar arrangements thereunder as described on Schedule 1.1(44)(g)) and any other Contract that exclusively relates to the Seattle Business.

(45) “Seattle Group” means Seattle, those Persons set forth on Schedule 2.2(a)(ii), each Subsidiary of Seattle immediately after the Distribution Time and each other Person that becomes a Subsidiary of Seattle after the Distribution Time (including as a result of transactions that occur following the Distribution Time in accordance with the Plan of Reorganization).

(46) “Seattle Indebtedness” means, without duplication, in each case in accordance with the Accounting Principles the aggregate amount outstanding as of immediately prior to the Effective Time with respect to any of the following of any member of the Seattle Group: (a) obligations for borrowed money or in respect of loans or advances (including any principal, premium, accrued and unpaid interest, related expenses, prepayment penalties, commitment and other fees, sale or liquidity participation amounts, reimbursements, indemnities and all other amounts payable in connection therewith); (b) obligations evidenced by bonds, debentures, notes, or debt securities; (c) obligations under drawn letters of credit and bankers’ acceptances issued for the account of such Person; (d) all Liabilities arising out of interest rate and currency swap arrangements and any other arrangements designed to provide protection against fluctuations in interest or currency rates, to the extent payable if terminated; (e) any deferred purchase price Liabilities related to past acquisitions (including the maximum amount of any holdback amounts, earn-outs or similar items but not including accounts payable and other Liabilities incurred in the ordinary course of business); and (f) guaranties of any obligations of the types described in the preceding clauses (a) through (e), inclusive, of any other Person; in each case, excluding (x) Total Seattle Debt, (y) any amounts otherwise accounted for in the Closing Working Capital and (z) any deferred revenue of the Seattle Business.

(47) “SEC” means the United States Securities and Exchange Commission.

(48) “Security Interest” means any mortgage, security interest, pledge, lien, charge, claim, option, right to acquire, voting or other restriction, right-of-way, covenant, condition, easement, encroachment, restriction on transfer or other encumbrance of any nature whatsoever.

(49) “Service Provider” means, with respect to any Person, any current, former or future employee, officer, consultant, independent contractor or director of such Person.

(50) “Shared Assets” means the Assets identified on Schedule 2.9(a).

(51) “Shared Contracts” means all contracts, commitments and other agreements that relate both to the Seattle Business and the Houston Business (other than Intercompany Obligations), including the contracts, commitments and other agreements identified on Schedule 2.9(b).

(52) “Subsidiary” means, with respect to any Person, any corporation, limited liability company, joint venture or partnership of which such Person (a) beneficially owns, either directly or indirectly, more than fifty percent (50%) of (i) the total combined voting power of all classes of voting securities of such Person, (ii) the total combined equity interests or (iii) the capital or profit interests, in the case of a partnership, or (b) otherwise has the power to vote or direct the vote of, either directly or indirectly, sufficient securities to elect a majority of the board of directors or similar governing body.

(53) “Tax” has the meaning set forth in the Tax Matters Agreement.

(54) “Tax Matters Agreement” means the Tax Matters Agreement, in substantially the form attached hereto as Exhibit B entered into or to be entered into by and between Miami, Houston and Seattle on or prior to the Distribution Date.

(55) “Tax Return” has the meaning set forth in the Tax Matters Agreement.

(56) “Technology” has the meaning set forth in the Intellectual Property Matters Agreement.

(57) “Total Seattle Debt” means, collectively, any debt incurred by Seattle, Miami or any of their respective Subsidiaries to finance the Seattle Payment.

(58) “Transaction Documents” means this Agreement, the Transition Services Agreement, the Tax Matters Agreement, the Employee Matters Agreement, the Real Estate Matters Agreement, the Commercial Agreement, the Intellectual Property Matters Agreement, and the Transfer Documents, in each case including all annexes, exhibits, schedules, attachments and appendices thereto.

(59) “Transfer Documents” means the Pre-Distribution Transfer Documents, the Post-Distribution Houston Transfer Documents and the Post-Distribution Seattle Transfer Documents.

(60) “Transferred IP” has the meaning set forth in the Intellectual Property Matters Agreement.

(61) “Transferred Technology” means all Technology (a) embodying any Transferred IP, or (b) otherwise used or held for use exclusively in, developed exclusively for use in, or exclusively related to, the operation of the Seattle Business.

(62) “Transition Services Agreement” means the Transition Services Agreement in substantially the form attached hereto as Exhibit A entered into or to be entered into by and between Houston and Seattle on or immediately prior to the Distribution Date.

Section 1.2 Other Terms. For purposes of this Agreement, the following terms have the meanings set forth in the sections indicated:


Definition		Section
Adjustment Amounts		2.10(a)(iii)
Agreement		Preamble
Arbitration Act		8.1
Arbitration Demand Notice		8.4(a)
Clean-Up Spin-Off		3.3(c)
Closing Statement		2.10(b)(i)
Closing Working Capital		2.10(a)(i)
Closing Working Capital Adjustment Amount		2.10(a)(iii)
Common-Equivalent Houston Series A Preferred Stock		3.1(e)
Counsel		4.8(e)
CPR		8.3


CPR Arbitration Rules		8.4(a)(i)
Dispute		8.1
Dispute Notice		8.2
Disputed Items		2.10(c)(ii)
Distribution		Recitals
Exchange Offer		Recitals
Excluded Assets		2.2(b)
Excluded Liabilities		2.3(b)
Existing Houston Counsel		4.8(a)
Final Adjustment Amounts		2.10(d)(i)
Final Closing Working Capital Adjustment Amount		2.10(d)(i)
General Seattle Business Information		4.8(b)
Guarantee Release		6.10(b)
Historical Average Working Capital		2.10(a)(iii)
Houston		Preamble
Houston Accounts		2.11(a)
Houston Common Stock		Recitals
Houston Confidential Information		7.2(b)
Houston Controlled Actions		6.11(b)
Houston Counsel		4.8(a)
Houston Indemnification Obligations		6.2
Houston Indemnified Parties		6.1
Houston Released Persons		5.1(a)
Indemnified Party		6.5(a)
Indemnifying Party		6.5(a)
Indemnity Payment		6.5(a)
Intercompany Obligations		2.8(a)
linked		2.11(a)
Mediation Request		8.3
Merger		Recitals
Merger Agreement		Recitals
Merger Sub		Recitals
Miami		Recitals
Minimum Cash Amount		3.1(c)(i)
Mixed Action		6.11(d)
Notice of Objection		2.10(c)(i)
One-Step Spin-Off		Recitals
Plan of Reorganization		2.1(a)
Post-Closing Claims		7.3(b)
Post-Distribution Houston Transfer Documents		2.5(b)
Post-Distribution Seattle Transfer Documents		2.4(b)
Pre-Closing Occurrence-Based Policies		2.2(a)(vii)
Pre-Distribution Transfer Documents		2.1(c)
Procedure		8.3
Reimbursable Expenses		7.4(a)
Representatives		7.2(a)


Resolution Period		2.10(c)(ii)
Seattle		Preamble
Seattle Accounts		2.11(a)
Seattle Assets		2.2(a)
Seattle Cash		2.10(a)(ii)
Seattle Class B Common Stock		3.1(e)
Seattle Common Stock		Recitals
Seattle Confidential Information		7.2(a)
Seattle Controlled Actions		6.11(a)
Seattle Counsel		4.8(a)
Seattle Debt		3.1(b)
Seattle Indemnification Obligations		6.1
Seattle Indemnified Parties		6.2
Seattle Intercompany Payables		2.3(a)(v)
Seattle Intercompany Receivables		2.2(a)(x)
Seattle Liabilities		2.3(a)
Seattle Payment		3.1(c)(ii)
Seattle Released Persons		5.1(b)
Seattle-Bound Subsidiaries		2.2(a)(ii)
Separate Action		6.11(c)
Separation Expenses		7.4(a)
Solvency Opinion		3.2(c)
Specified Cash		2.10(a)(ii)
Subsidiary Stock Exchange		3.1(e)
Subsidiary Stock Recapitalization		3.1(e)
Third-Party Claim		6.6(a)
Unaffiliated Accounting Firm		2.10(c)(iii)
Working Capital		2.10(a)(i)

ARTICLE II

THE REORGANIZATION

Section 2.1 Transfer of Assets and Assumption of Liabilities Prior to the Distribution.

(a) In accordance with the plan and structure set forth on Schedule 2.1(a) (such plan and structure, as it may be revised in accordance with Section 2.1(d), being referred to herein as the “Plan of Reorganization”) and to the extent not previously effected pursuant to the steps of the Plan of Reorganization that have been completed prior to the date of this Agreement as promptly as practicable following the date of this Agreement:

(i) Seattle Assets. Houston shall, and shall cause its applicable Subsidiaries to, (A) assign, transfer, convey and deliver to Seattle or one or more of Seattle’s Subsidiaries designated by Seattle, and Seattle or such Subsidiaries shall accept from Houston and Houston’s applicable Subsidiaries, all of Houston’s and such Subsidiaries’ respective direct or indirect right, title and interest in and to all Seattle Assets (in the case of the Transferred IP, subject to, and in accordance with, the terms and conditions of the Intellectual Property Matters Agreement) and (B) use commercially reasonable efforts to obtain the release of any Security Interests in any Transferred IP prior to the Distribution Time;

(ii) Seattle Liabilities. Seattle and/or one or more of its Subsidiaries designated by Seattle shall accept, assume and agree faithfully to perform, discharge and fulfill the Seattle Liabilities in accordance with their respective terms. Seattle and such Subsidiaries shall be responsible for all Seattle Liabilities, regardless of when or where such Seattle Liabilities arose or arise, or the legal entity that incurred or holds the Seattle Liability (provided, however, that nothing contained herein shall preclude or inhibit Seattle from asserting against third parties any defenses available to the legal entity that incurred or holds such Seattle Liability), or whether the facts on which they are based occurred prior to, at or subsequent to the Distribution Time, regardless of where or against whom such Seattle Liabilities are asserted or determined or whether asserted or determined prior to the date of this Agreement;

(iii) Excluded Assets. Houston shall cause the applicable Subsidiaries of Seattle to assign, transfer, convey and deliver to Houston or one or more of its other Subsidiaries designated by Houston (other than Seattle or its Subsidiaries), and Houston or such other Subsidiaries shall accept from such applicable Subsidiaries, such applicable Subsidiaries’ respective direct or indirect right, title and interest in and to any Excluded Assets; and

(iv) Excluded Liabilities. Houston and/or its Subsidiaries designated by Houston (other than Seattle or its Subsidiaries) shall accept and assume from Seattle or one or more of its Subsidiaries and agree faithfully to perform, discharge and fulfill the Excluded Liabilities of such other Subsidiaries designated by Houston, and Houston and/or its applicable Subsidiaries shall be responsible for all Excluded Liabilities, regardless of when or where such Excluded Liabilities arose or arise, or the legal entity that incurred or holds the Excluded Liability (provided, however, that nothing contained herein shall preclude or inhibit Houston from asserting against third parties any defenses available to the legal entity that incurred or holds such Excluded Liability), or whether the facts on which they are based occurred prior to, at or subsequent to the Distribution Time, regardless of where or against whom such Excluded Liabilities are asserted or determined or whether asserted or determined prior to the date of this Agreement.

(b) In furtherance of the assignment, transfer, conveyance and delivery of the Seattle Assets and the assumption of the Seattle Liabilities in accordance with Section 2.1(a)(i) and Section 2.1(a)(ii) and the Intellectual Property Matters Agreement, on the date that such Seattle Assets are assigned, transferred, conveyed or delivered or such Seattle Liabilities are assumed, (i) Houston shall execute and deliver, and shall cause its Subsidiaries to execute and deliver, such bills of sale, quitclaim deeds, stock powers, certificates of title, assignments of contracts and other instruments of transfer, conveyance and assignment as and to the extent reasonably necessary to evidence the transfer, conveyance and assignment of all of Houston’s and its Subsidiaries’ (other than Seattle and its Subsidiaries) right, title and interest in and to such Seattle Assets and (ii) Seattle shall execute and deliver, and shall cause its Subsidiaries to execute and deliver, such assumptions of contracts and other instruments of assumption as and to the extent reasonably necessary to evidence the valid and effective assumption of the Seattle Liabilities by Seattle and its Subsidiaries.

(c) In furtherance of the assignment, transfer, conveyance and delivery of the Excluded Assets and the assumption of the Excluded Liabilities in accordance with Section 2.1(a)(iii) and Section 2.1(a)(iv), on the date that such Excluded Assets are assigned, transferred, conveyed or delivered or such Excluded Liabilities are assumed, (i) Seattle shall execute and deliver, and shall cause its Subsidiaries to execute and deliver, such bills of sale, quitclaim deeds, stock powers, certificates of title, assignments of contracts and other instruments of transfer, conveyance and assignment as and to the extent reasonably necessary to evidence the transfer, conveyance and assignment of all of Seattle’s and such Subsidiaries’ right, title and interest in and to such Excluded Assets and (ii) Houston shall execute and deliver, and shall cause its Subsidiaries to execute and deliver, such assumptions of contracts and other instruments of assumption as and to the extent reasonably necessary to evidence the valid and effective assumption of such Excluded Liabilities. All of the foregoing documents contemplated by Section 2.1(b) and this Section 2.1(c) shall be referred to collectively herein as the “Pre-Distribution Transfer Documents.”

(d) Without limiting any other provision hereof, in connection with the reorganization contemplated by Section 2.1(a), each of Houston and Seattle will take, and will cause each member of its respective Group to take, such actions as are reasonably necessary to consummate the transactions expressly contemplated by the Plan of Reorganization (whether prior to, at or after the Distribution Time). No change which adversely affects Seattle in a material manner may be made to the Plan of Reorganization prior to the termination of the Merger Agreement without the prior written consent of Miami (not to be unreasonably withheld, conditioned or delayed); provided, that if Miami does not respond to a request for consent under this Section 2.1(d) within three (3) Business Days of Miami’s receipt thereof, such consent shall be deemed provided hereunder.

(e) Seattle hereby waives compliance by each and every member of the Houston Group with the requirements and provisions of any “bulk-sale” or “bulk-transfer” Laws of any jurisdiction that may otherwise be applicable with respect to the transfer or sale of any or all of the Seattle Assets to any member of the Seattle Group.

(f) Houston hereby waives compliance by each and every member of the Seattle Group with the requirements and provisions of any “bulk-sale” or “bulk-transfer” Laws of any jurisdiction that may otherwise be applicable with respect to the transfer or sale of any or all of the Excluded Assets to any member of the Houston Group.

(g) The Parties acknowledge and agree that as between the Houston Group and the Seattle Group, on the one hand, and any third Person asserting a Liability against a member of the Houston Group or the Seattle Group, on the other hand, nothing in this Agreement shall alter or otherwise change the legal entity within the Houston Group or the Seattle Group that may be subject to such Liability.

(h) Without limiting anything set forth in this Section 2.1, with respect to the Transferred Technology, to the extent in the possession or under the control of any member of

the Houston Group and to the extent not contained in storage media that constitutes a Seattle Asset otherwise delivered to Seattle under this Agreement, Houston shall (and shall cause the other members of the Houston Group to), upon Seattle’s request, provide Seattle with all Technology and other tangible materials constituting, comprising, related to, or necessary to practice the Transferred IP (including, for the avoidance of doubt, all Transferred Technology and all Source Code (as defined in the Intellectual Property Matters Agreement) included therein).

Section 2.2 Allocation of Assets.

(a) For purposes of this Agreement, “Seattle Assets” shall mean (without duplication):

(i) the Assets listed or described on Schedule 2.2(a)(i);

(ii) the shares of capital stock of, or any other equity or ownership interests in, the Subsidiaries held, directly or indirectly, by Houston listed on Schedule 2.2(a)(ii) (the “Seattle-Bound Subsidiaries”);

(iii) the Seattle Contracts (in the case of Contracts related to Technology or Intellectual Property Rights where the provisions relating to Technology or Intellectual Property Rights are not incidental to the overall purpose of the Contract, only the IP Contracts);

(iv) the Assets reflected on the Seattle Balance Sheet or the accounting records supporting such balance sheet and any Assets acquired by or for the Seattle Business or any member of the Seattle Group or the Houston Group subsequent to the date of the Seattle Balance Sheet which, had they been so acquired on or before such date and owned as of such date, would have been reflected on the Seattle Balance Sheet or the accounting records supporting such balance sheet if prepared on a consistent basis, subject to any dispositions of such Assets subsequent to the date of the Seattle Balance Sheet as may be permitted under the Merger Agreement, but in all events excluding all cash and cash equivalents (except for Seattle Cash or as expressly otherwise provided in the Transaction Documents, which cash or cash equivalents shall be deemed Seattle Assets hereunder);

(v) the Seattle Cash;

(vi) the Transferred IP and Transferred Technology;

(vii) subject to Section 7.3 (including any limitations or obligations of any member of the Seattle Group thereunder) and to the terms of the applicable Insurance Policies, the rights of any member of the Seattle Group under any occurrence-based Insurance Policies of Houston or its Subsidiaries (as applicable) in place prior to the Distribution Date under which Seattle or any Seattle Subsidiary is insured (the “Pre-Closing Occurrence-Based Policies”), whether such Pre-Closing Occurrence-Based Policies are maintained with third party or captive insurers, but only to the extent such Pre-Closing Occurrence-Based Policies provide, without cost to Houston and its

Subsidiaries (except to the extent acting as insurer under the relevant Pre-Closing Occurrence-Based Policy), coverage to Seattle or such Subsidiary for any Seattle Liabilities; provided, however, that nothing in this clause shall be deemed to constitute (or to reflect) an assignment of such Insurance Policies, or any of them, to Seattle or any member of the Seattle Group;

(viii) (A) the offices, manufacturing facilities and other owned real property allocated to a member of the Seattle Group pursuant to the Real Estate Matters Agreement and (B) the leases governing the leased real property allocated to a member of the Seattle Group pursuant to the Real Estate Matters Agreement, in each case, subject to the terms and conditions of the Real Estate Matters Agreement;

(ix) office equipment, trade fixtures and furnishings located at (A) a physical site of which the ownership or a leasehold or subleasehold interest is being transferred to or retained by a member of the Seattle Group, and which is not subject to a lease or sublease back to a member of the Houston Group as of the Distribution Time, but excluding the items listed on Schedule 2.2(a)(ix)(A), and (B) a physical site of which the ownership or a leasehold or subleasehold interest is being transferred to or retained by a member of the Houston Group and listed on Schedule 2.2(a)(ix)(B) (in each case excluding any office equipment, trade fixtures and furnishings owned by Persons other than Houston and its Subsidiaries); provided that personal computers and other personal equipment shall be retained by the party who, following the Distribution Time, retains the services of the applicable Service Provider who, prior to the Distribution Time, used such personal computer;

(x) all intercompany receivables owed to a member of the Seattle Group, on the one hand, by a member of the Houston Group, on the other hand, that: (A) are in respect of goods or services sold by a member of the Seattle Group; and (B) are effective or outstanding as of the Distribution Time, after giving effect to any settlement and payment made prior to or as of the Distribution Time described in Section 2.8(b)(iv) (collectively, the “Seattle Intercompany Receivables”);

(xi) all other Assets that are expressly provided by this Agreement or any other Transaction Document as Assets to be transferred to Seattle or any other member of the Seattle Group; and

(xii) all Assets (other than Houston Retained IP or any other Excluded Asset) owned or held immediately prior to the Distribution Time by Houston or any of its Subsidiaries exclusively relating to or exclusively used in the Seattle Business; provided that no Asset shall be deemed to be a Seattle Asset solely as a result of this clause (xii) if such Asset is within the category or type of Asset expressly covered by the terms of another Transaction Document unless the Party claiming entitlement to such Asset can establish that the omission of the transfer or conveyance of such Asset was inadvertent, and no Asset shall be deemed to be a Seattle Asset solely as a result of this clause (xii) unless a claim with respect thereto is made by Seattle on or prior to the second (2nd) anniversary of the Distribution Date.

(b) For the purposes of this Agreement, “Excluded Assets” shall mean any and all Assets that are owned, leased or licensed, at or prior to the Distribution Time, by Houston or any of its Subsidiaries, that are not Seattle Assets, including (without duplication):

(i) the Assets listed or described on Schedule 2.2(b)(i);

(ii) all cash and cash equivalents (except for Seattle Cash or as expressly otherwise provided in the Transaction Documents);

(iii)(A) the shares of capital stock of, or any other equity or ownership interests in, the Subsidiaries held, directly or indirectly, by Houston that are not members of the Seattle Group, including the Subsidiaries listed on Schedule 2.2(b)(iii)(A), and (B) the shares of capital stock of, or any other equity interests in, the entities held by Houston that are not members of the Seattle Group, including the entities listed on Schedule 2.2(b)(iii)(B);

(iv) the Contracts listed or described on Schedule 2.2(b)(iv), any other Contracts that are not Seattle Contracts and, subject to Section 2.9, the Shared Contracts;

(v) all Houston Retained IP;

(vi)(A) the offices, manufacturing facilities and other owned real property allocated to a member of the Houston Group pursuant to the Real Estate Matters Agreement and (B) the leases governing the leased real property allocated to a member of the Houston Group pursuant to the Real Estate Matters Agreement in each case, subject to the terms and conditions of the Real Estate Matters Agreement; and

(vii) all other Assets that are expressly contemplated by this Agreement or any other Transaction Document as Assets to be retained by Houston or any other member of the Houston Group.

Section 2.3 Allocation of Liabilities.

(a) For the purposes of this Agreement, “Seattle Liabilities” shall mean (without duplication):

(i) the Liabilities listed or described on Schedule 2.3(a)(i);

(ii) the Liabilities to the extent relating to, arising out of or resulting from:

(A) the operation of the Seattle Business, as conducted at any time before (by Houston or any of its Affiliates, any member of the Seattle Group or any of their respective predecessors), at or after the Distribution Time (including (1) any Liability relating to, arising out of or resulting from any act or failure to act by any Person, whether or not such act or failure to act is or was within such Person’s authority, with respect to the Seattle Business and (2) any Liability under, arising from or related to any Contract to which Houston or any

of its Affiliates, any member of the Seattle Group or any of their respective predecessors is or was a party or by which any of their respective Assets is or was bound, in each case to the extent such Liability arises or arose from the Seattle Business as conducted at any time before, at or after the Distribution Time, regardless of when such Contract may have been entered into, terminated or expired);

(B) the operation of any business conducted by any member of the Seattle Group at any time after the Distribution Time (including any Liability relating to, arising out of or resulting from any act or failure to act by any Person, whether or not such act or failure to act is or was within such Person’s authority, with respect to such business);

(D) any Environmental Condition or any matter subject to or regulated by Environmental Law, in each case whether before, at or after the Distribution Time and in each case relating to, arising out of or resulting from (i) any properties (or the portion thereof if shared with the Houston Group) owned, leased or occupied by any member of the Seattle Group from and after the Distribution Time; (ii) the ownership, occupancy or use of the Seattle Assets; (iii) the presence on or Release of Hazardous Materials on or from any Seattle Assets; (iv) the conduct or operation of the Seattle Business; or (iv) the use, treatment, Release, handling, transportation or disposal of Hazardous Materials by the Seattle Business or by or on behalf of any member of the Seattle Group;

(iii) the Liabilities reflected as liabilities or obligations of Seattle or its Subsidiaries in the Seattle Balance Sheet or the accounting records supporting such balance sheet (including, for the avoidance of doubt, all deferred revenue reflected therein), and all Liabilities arising or assumed after the date of the Seattle Balance Sheet which, had they arisen or been assumed on or before such date and been retained as of such date, would have been reflected on the Seattle Balance Sheet or the accounting records supporting such balance sheet if prepared on a consistent basis (including, in any event, all Liabilities of Seattle under the Total Seattle Debt), subject to any discharge of such Liabilities subsequent to the date of the Seattle Balance Sheet;

(iv) the Liabilities arising out of or resulting from (A) the Total Seattle Debt, (B) capitalized and operating lease obligations related to the Seattle Business as of the Distribution Date and (C) the Seattle Indebtedness;

(v) all intercompany payables owed by a member of the Seattle Group, on the one hand, to a member of the Houston Group, on the other hand, that: (A) are in respect of goods or services sold by a member of the Houston Group to a member of the Seattle Group; and (B) are effective or outstanding as of the Distribution Time, after giving effect to any settlement and payment prior to or as of the Distribution Time described in Section 2.8(b)(iv), which intercompany payables shall be paid by Seattle or the applicable member of the Seattle Group in accordance with Section 2.8(b)(iv) (collectively, “Seattle Intercompany Payables”); and

(vi) all other Liabilities that are expressly provided by this Agreement or any other Transaction Document as Liabilities to be assumed by Seattle or any other member of the Seattle Group, and all agreements, obligations and Liabilities of Seattle or any other member of the Seattle Group under this Agreement or any of the other Transaction Documents.

(b) For the purposes of this Agreement, “Excluded Liabilities” shall mean (without duplication):

(i) the Liabilities listed or described on Schedule 2.3(b)(i);

(ii) the Liabilities of Houston or its Affiliates to the extent relating to, arising out of or resulting from any Excluded Assets or the Houston Business;

(iii) Liabilities, if any, arising out of or resulting from any amounts that would constitute indebtedness of any member of the Houston Group under GAAP; and

(iv) all other Liabilities that are expressly contemplated by this Agreement or any other Transaction Document as Liabilities to be retained or assumed by Houston or any other member of the Houston Group, and all agreements, obligations and other Liabilities of Houston or any member of the Houston Group under this Agreement or any of the other Transaction Documents.

Notwithstanding anything to the contrary contained elsewhere in this Agreement, any Liabilities of Houston or its Affiliates that are not Seattle Liabilities are Excluded Liabilities, and any Excluded Liabilities shall not be Seattle Liabilities.

Section 2.4 Transfer of Excluded Assets and Assumption of Excluded Liabilities Not Effected at or Prior to the Distribution Time.

(a) To the extent any Excluded Asset is transferred or assigned to, or any Excluded Liability is assumed by, a member of the Seattle Group at or prior to the Distribution Time, or is owned or held by a member of the Seattle Group after the Distribution Time, from and after the Distribution Time:

(i) Seattle shall, and shall cause its applicable Subsidiaries to, promptly assign, transfer, convey and deliver to Houston or certain of its Subsidiaries designated by Houston, and Houston or such Subsidiaries shall accept from Seattle and its applicable Subsidiaries, all of Seattle’s and such Subsidiaries’ respective right, title and interest in and to such Excluded Assets (in the case of the Houston Retained IP, subject to, and in accordance with, the terms and conditions of the Intellectual Property Matters Agreement); and

(ii) Houston and/or its Subsidiaries designated by Houston shall promptly accept, assume and agree faithfully to perform, discharge and fulfill all such Excluded Liabilities in accordance with their respective terms.

(b) In furtherance of the assignment, transfer, conveyance and delivery of Excluded Assets and the assumption of Excluded Liabilities provided for in Section 2.4(a)(i) and Section 2.4(a)(ii) and the other Transaction Documents and without any additional consideration therefor: (i) Seattle shall execute and deliver, and shall cause its Subsidiaries to execute and deliver, such bills of sale, quitclaim deeds, stock powers, certificates of title, assignments of contracts and other instruments of transfer, conveyance and assignment as and to the extent reasonably necessary to evidence the transfer, conveyance and assignment of all of Seattle’s and its Subsidiaries’ right, title and interest in and to the Excluded Assets to Houston and its Subsidiaries, and (ii) Houston shall execute and deliver, and shall cause its Subsidiaries to execute and deliver, such assumptions of contracts and other instruments of assumption as and to the extent reasonably necessary to evidence the valid and effective assumption of the Excluded Liabilities by Houston or its Subsidiaries. All of the foregoing documents contemplated by this Section 2.4(b) shall be referred to collectively herein as the “Post-Distribution Seattle Transfer Documents.”

(c) To the extent that the transfer or assignment of any Excluded Asset or the assumption of any Excluded Liability requires any Approvals or Notifications, the Parties shall use their commercially reasonable efforts to obtain or make such Approvals or Notifications as soon as reasonably practicable; provided, however, that except to the extent expressly provided in any of the other Transaction Documents, neither Houston nor Seattle shall be obligated to contribute capital or pay any consideration in any form (including providing any letter of credit, guaranty or other financial accommodation) to any Person in order to obtain or make such Approvals or Notifications; provided, further, that the obligation to obtain or make such Approvals or Notifications shall terminate on the date that is twenty-four (24) months after the Distribution.

(d) If and to the extent that the valid, complete and perfected transfer or assignment to the Houston Group of any Excluded Assets or the assumption by the Houston Group of any Excluded Liabilities would be a violation of applicable Law or require any Approval or Notification that has not been made or obtained at or prior to the Distribution Time, then, unless the Parties shall mutually otherwise determine, the transfer or assignment to the Houston Group of such Excluded Assets or the assumption by the Houston Group of such Excluded Liabilities, as the case may be, shall be automatically deemed deferred and any such purported transfer, assignment or assumption shall be null and void until such time as all legal impediments are removed or such Approvals or Notifications have been obtained or made. Notwithstanding the foregoing, any such Excluded Assets or Excluded Liabilities shall continue to constitute Excluded Assets and Excluded Liabilities for all other purposes of this Agreement.

(e) If any transfer or assignment of any Excluded Asset or any assumption of any Excluded Liability intended to be transferred, assigned or assumed under this Agreement or other Transaction Documents is not consummated at or prior to the Distribution Time, whether as a result of the provisions of Section 2.4(d) or for any other reason, then the Parties shall cooperate to effect such transfers as promptly following the Distribution Time as practicable and,

prior to the effectiveness of such transfer of Assets or assumption of Liabilities, the member of the Seattle Group retaining such Excluded Asset or such Excluded Liability, as the case may be, shall thereafter hold such Excluded Asset in trust for the use and benefit of the member of the Houston Group entitled thereto (at the expense of the member of the Houston Group entitled thereto) and retain such Excluded Liability for the account of the member of the Houston Group and otherwise enter into arrangements, including subcontracting, sublicensing, subleasing, back-to-back agreement, or other similar arrangement, to convey the economic rights and obligations relating to such Excluded Assets or Excluded Liability to the Houston Group. In addition, the member of the Seattle Group retaining such Excluded Asset or such Excluded Liability shall, insofar as reasonably possible and to the extent permitted by applicable Law, treat such Excluded Asset or Excluded Liability in the ordinary course of business in accordance with past practice and take such other actions as may be reasonably requested by the member of the Houston Group to whom such Excluded Asset is to be transferred or assigned, or which will assume such Excluded Liability, as the case may be, in order to place such member of the Houston Group in the same position as if such Excluded Asset or Excluded Liability had been transferred, assigned or assumed as contemplated hereby and so that all the benefits and burdens relating to such Excluded Asset or Excluded Liability, as the case may be, including use, risk of loss, potential for gain and dominion, control and command over such Excluded Asset or Excluded Liability, as the case may be, are to inure from and after the Distribution Time to the Houston Group. Except to the extent otherwise required by applicable Law, each of Houston and Seattle shall, and shall cause its Affiliates to, (i) for all U.S. federal (and applicable state, local and foreign) income tax purposes, treat any Excluded Asset and any Excluded Liability transferred, assigned or assumed after the Distribution Time pursuant to this Section 2.4(e) as having been so transferred, assigned or assumed prior to the Distribution Time pursuant to the Reorganization and (ii) file all Tax Returns in a manner consistent with such treatment and not take any Tax position inconsistent therewith.

(f) If and when the Approvals or Notifications, the absence of which caused the deferral of transfer or assignment of any Excluded Asset or the deferral of assumption of any Excluded Liability pursuant to Section 2.4(d), are obtained or made, and, if and when any other legal impediments for the transfer or assignment of any Excluded Assets or the assumption of any Excluded Liabilities have been removed, the transfer or assignment of the applicable Excluded Asset or the assumption of the applicable Excluded Liability, as the case may be, shall be effected in accordance with the terms of this Agreement and/or the applicable other Transaction Document.

(g) Any member of the Seattle Group retaining an Excluded Asset or Excluded Liability due to the deferral of the transfer or assignment of such Excluded Asset or the deferral of the assumption of such Excluded Liability, as the case may be, shall not be obligated, in connection with the foregoing, to expend any money unless the necessary funds are advanced (or otherwise made available or agreed in advance to be reimbursed) by Houston or the member of the Houston Group entitled to the Excluded Asset or Excluded Liability, as the case may be, other than reasonable out-of-pocket expenses, attorneys’ fees and recording or similar fees, all of which shall be promptly reimbursed by Houston or the member of the Houston Group entitled to such Excluded Asset or Excluded Liability.

Section 2.5 Transfer of Seattle Assets and Assumption of Seattle Liabilities Not Effected at or Prior to the Distribution Time.

(a) To the extent any Seattle Asset is transferred or assigned to, or any Seattle Liability is assumed by, a member of the Houston Group at or prior to the Distribution Time, or is owned or held by a member of the Houston Group after the Distribution Time, from and after the Distribution Time:

(i) Houston shall, and shall cause its applicable Subsidiaries to, promptly assign, transfer, convey and deliver to Seattle or certain of its Subsidiaries designated by Seattle, and Seattle or such Subsidiaries shall accept from Houston and its applicable Subsidiaries, all of Houston’s and such Subsidiaries’ respective right, title and interest in and to such Seattle Assets (in the case of the Transferred IP, subject to, and in accordance with, the terms and conditions of the Intellectual Property Matters Agreement); and

(ii) Seattle and/or its Subsidiaries designated by Seattle shall promptly accept, assume and agree faithfully to perform, discharge and fulfill all such Seattle Liabilities in accordance with their respective terms.

(b) In furtherance of the assignment, transfer, conveyance and delivery of Seattle Assets and the assumption of Seattle Liabilities provided for Section 2.5(a)(i) and Section 2.5(a)(ii) and the other Transaction Documents and without any additional consideration therefor: (i) Houston shall execute and deliver, and shall cause its Subsidiaries to execute and deliver, such bills of sale, quitclaim deeds, stock powers, certificates of title, assignments of contracts and other instruments of transfer, conveyance and assignment as and to the extent reasonably necessary to evidence the transfer, conveyance and assignment of all of Houston’s and its Subsidiaries’ right, title and interest in and to the Seattle Assets to Seattle and its Subsidiaries, and (ii) Seattle shall execute and deliver, and shall cause its Subsidiaries to execute and deliver, such assumptions of contracts and other instruments of assumption as and to the extent reasonably necessary to evidence the valid and effective assumption of the Seattle Liabilities by Seattle or its Subsidiaries. All of the foregoing documents contemplated by this Section 2.5(b) shall be referred to collectively herein as the “Post-Distribution Houston Transfer Documents.”

(c) To the extent that the transfer or assignment of any Seattle Asset or the assumption of any Seattle Liability requires any Approvals or Notifications, the Parties shall use their commercially reasonable efforts to obtain or make such Approvals or Notifications as soon as reasonably practicable; provided, however, that except to the extent expressly provided in any of the other Transaction Documents, neither Houston nor Seattle shall be obligated to contribute capital or pay any consideration in any form (including providing any letter of credit, guaranty or other financial accommodation) to any Person in order to obtain or make such Approvals or Notifications; provided, further, that the obligation to obtain or make such Approvals or Notifications shall terminate on the date that is twenty-four (24) months after the Distribution.

(d) If and to the extent that the valid, complete and perfected transfer or assignment to the Seattle Group of any Seattle Assets or assumption by the Seattle Group of any

Seattle Liabilities would be a violation of applicable Law or require any Approval or Notification that has not been made or obtained at or prior to the Distribution Time then, unless the Parties shall mutually otherwise determine, the transfer or assignment to the Seattle Group of such Seattle Assets or the assumption by the Seattle Group of such Seattle Liabilities, as the case may be, shall be automatically deemed deferred and any such purported transfer, assignment or assumption shall be null and void until such time as all legal impediments are removed or such Approvals or Notifications have been obtained or made. Notwithstanding the foregoing, any such Seattle Assets or Seattle Liabilities shall continue to constitute Seattle Assets and Seattle Liabilities for all other purposes of this Agreement.

(e) If any transfer or assignment of any Seattle Asset or any assumption of any Seattle Liability intended to be transferred, assigned or assumed under this Agreement or the other Transaction Documents is not consummated at or prior to the Distribution Time, whether as a result of the provisions of Section 2.5(d) or for any other reason, then the Parties shall cooperate to effect such transfers as promptly following the Distribution Time as practicable and, prior to the effectiveness of such transfer of Assets or assumption of Liabilities, the member of the Houston Group retaining such Seattle Asset or such Seattle Liability, as the case may be, shall thereafter hold such Seattle Asset in trust for the use and benefit of the member of the Seattle Group entitled thereto (at the expense of the member of the Seattle Group entitled thereto) and retain such Seattle Liability for the account of the member of the Seattle Group and otherwise enter into arrangements, including subcontracting, sublicensing, subleasing, back-to-back agreement, or other similar arrangement, to convey the economic rights and obligations relating to such Seattle Assets or Seattle Liability to the Seattle Group. In addition, the member of the Houston Group retaining such Seattle Asset or such Seattle Liability shall, insofar as reasonably possible and to the extent permitted by applicable Law, treat such Seattle Asset or Seattle Liability in the ordinary course of business in accordance with past practice and take such other actions as may be reasonably requested by the member of the Seattle Group to whom such Seattle Asset is to be transferred or assigned, or which will assume such Seattle Liability, as the case may be, in order to place such member of the Seattle Group in the same position as if such Seattle Asset or Seattle Liability had been transferred, assigned or assumed as contemplated hereby and so that all the benefits and burdens relating to such Seattle Asset or Seattle Liability, as the case may be, including use, risk of loss, potential for gain and dominion, control and command over such Seattle Asset or Seattle Liability, as the case may be, are to inure from and after the Distribution Time to the Seattle Group. Except to the extent otherwise required by applicable Law, each of Houston and Seattle shall, and shall cause its Affiliates to, (i) for all U.S. federal (and applicable state, local and foreign) income tax purposes, treat any Seattle Asset and any Seattle Liability transferred, assigned or assumed after the Distribution Time pursuant to this Section 2.5(e) as having been so transferred, assigned or assumed prior to the Distribution Time pursuant to the Reorganization and (ii) file all Tax Returns in a manner consistent with such treatment and not take any Tax position inconsistent therewith.

(f) If and when the Approvals or Notifications, the absence of which caused the deferral of transfer or assignment of any Seattle Asset or the deferral of assumption of any Seattle Liability pursuant to Section 2.5(d), are obtained or made, and, if and when any other legal impediments for the transfer or assignment of any Seattle Asset or the assumption of any Seattle Liability have been removed, the transfer or assignment of the applicable Seattle Asset or the assumption of the applicable Seattle Liability, as the case may be, shall be effected in accordance with the terms of this Agreement and/or the applicable other Transaction Document.

(g) Any member of the Houston Group retaining a Seattle Asset or Seattle Liability due to the deferral of the transfer or assignment of such Seattle Asset or the deferral of the assumption of such Seattle Liability, as the case may be, shall not be obligated, in connection with the foregoing, to expend any money unless the necessary funds are advanced (or otherwise made available or agreed in advance to be reimbursed) by Seattle or the member of the Seattle Group entitled to the Seattle Asset or Seattle Liability, as the case may be, other than reasonable out-of-pocket expenses, attorneys’ fees and recording or similar fees, all of which shall be promptly reimbursed by Seattle or the member of the Seattle Group entitled to such Seattle Asset or Seattle Liability.

Section 2.6 Novation of Seattle Liabilities; Indemnification.

(a) Each of Houston and Seattle, at the request of the other, shall use its commercially reasonable efforts to obtain, or to cause to be obtained, as soon as reasonably practicable, any consent, substitution, approval or amendment required to novate or assign all obligations under agreements (including any agreement with the U.S. federal government), leases, licenses and other obligations or Liabilities of any nature whatsoever that constitute Seattle Liabilities, or to obtain in writing the unconditional release of all parties to such arrangements other than any member of the Seattle Group, or the substitution of a member of the Seattle Group if no member of the Seattle Group is then a party thereto, so that, in any such case, the members of the Seattle Group will be solely responsible for such Liabilities; provided, however, that except as otherwise expressly provided in any of the other Transaction Documents, neither Houston nor Seattle shall be obligated to contribute any capital or pay any consideration in any form (including providing any letter of credit, guaranty or other financial accommodation) to any third Person from whom any such consent, substitution, approval, amendment or release is requested.

(b) If Houston or Seattle is unable to obtain, or to cause to be obtained, any such required consent, substitution, approval, amendment or release, the applicable member of the Houston Group shall continue to be bound by such agreement, lease, license or other obligation or Liability and, unless not permitted by the terms thereof or by Law, Seattle shall or shall cause a member of the Seattle Group to, as agent or subcontractor for such member of the Houston Group, as the case may be, pay, perform and discharge fully all the obligations or other Liabilities of such member of the Houston Group that constitute Seattle Liabilities from and after the Distribution Time. Seattle shall indemnify each Houston Indemnified Party, and hold each of them harmless, against any Liabilities (other than Excluded Liabilities) arising in connection therewith; provided that Seattle shall have no obligation to indemnify any Houston Indemnified Party that has engaged in any knowing violation of Law, fraud or willful misconduct in connection therewith. Houston shall cause each member of the Houston Group without further consideration to promptly pay and remit, or cause to be paid or remitted, to Seattle or to another member of the Seattle Group specified by Seattle, all money, rights and other consideration received by it or any member of the Houston Group in respect of such performance (unless any such consideration is an Excluded Asset). If and when any such consent, substitution, approval, amendment or release shall be obtained or the obligations under such agreement, lease, license or

other obligations or Liabilities shall otherwise become assignable or able to be novated, Houston, without payment of further consideration, shall promptly assign, or cause to be assigned, all its obligations and other Liabilities thereunder or any obligations of any member of the Houston Group thereunder to Seattle or another member of the Seattle Group specified by Seattle, and Seattle, without the payment of any further consideration, shall, or shall cause such other member of the Seattle Group to, assume such obligations.

Section 2.7 Novation of Liabilities Other than Seattle Liabilities; Indemnification.

(a) Each of Houston and Seattle, at the request of the other, shall use its commercially reasonable efforts to obtain, or to cause to be obtained, as soon as reasonably practicable, any consent, substitution, approval or amendment required to novate or assign all obligations under agreements (including any agreement with the U.S. federal government), leases, licenses and other obligations or Liabilities for which one or more members of the Seattle Group are liable and that do not constitute Seattle Liabilities, or to obtain in writing the unconditional release of all parties to such arrangements other than any member of the Houston Group, or the substitution of a member of the Houston Group if no member of the Houston Group is then a party thereto, so that, in any such case, the members of the Houston Group will be solely responsible for such Liabilities; provided, however, that except as otherwise expressly provided in any of the other Transaction Documents, neither Houston nor Seattle shall be obligated to contribute any capital or pay any consideration in any form (including providing any letter of credit, guaranty or other financial accommodation) to any third Person from whom any such consent, substitution, approval, amendment or release is requested.

(b) If Houston or Seattle is unable to obtain, or to cause to be obtained, any such required consent, substitution, approval, amendment or release, the applicable member of the Seattle Group shall continue to be bound by such agreement, lease, license or other obligation or Liability and, unless not permitted by the terms thereof or by Law, Houston shall or shall cause a member of the Houston Group to, as agent or subcontractor for such member of the Seattle Group, as the case may be, pay, perform and discharge fully all the obligations or other Liabilities of such member of the Seattle Group that do not constitute Seattle Liabilities from and after the Distribution Time. Houston shall indemnify each Seattle Indemnified Party and hold each of them harmless against any Liabilities (other than Seattle Liabilities) arising in connection therewith; provided that Houston shall have no obligation to indemnify any Seattle Indemnified Party that has engaged in any knowing violation of Law, fraud or willful misconduct after the Distribution Time in connection therewith. Seattle shall cause each member of the Seattle Group without further consideration to promptly pay and remit, or cause to be paid or remitted, to Houston or to another member of the Houston Group specified by Houston, all money, rights and other consideration received by it or any member of the Seattle Group in respect of such performance (unless any such consideration is a Seattle Asset). If and when any such consent, substitution, approval, amendment or release shall be obtained or the obligations under such agreement, lease, license or other obligations or Liabilities shall otherwise become assignable or able to be novated, Seattle, without payment of further consideration, shall promptly assign, or cause to be assigned, all its obligations and other Liabilities thereunder or any obligations of any member of the Seattle Group thereunder to Houston or another member of the Houston Group specified by Houston, and Houston, without the payment of any further consideration shall, or shall cause such other member of the Houston Group to, assume such obligations.

Section 2.8 Termination of Intercompany Contracts; Settlement of Intercompany Payables and Receivables.

(a) Except as set forth in Section 2.8(b), in furtherance of the releases and other provisions of Section 5.1, Seattle and each member of the Seattle Group, on the one hand, and Houston and each member of the Houston Group, on the other hand, hereby terminate, effective as of the Distribution Time and in accordance with applicable Law, any and all Contracts and intercompany Liabilities (subject to Section 2.8(b)(iv) below), whether or not in writing, between or among Seattle and/or any member of the Seattle Group, on the one hand, and Houston and/or any member of the Houston Group, on the other hand, that are effective or outstanding as of immediately prior to the Distribution Time (collectively, the “Intercompany Obligations”). No such terminated Contract (including any provision thereof that purports to survive termination) or intercompany Liability shall be of any further force or effect from and after the Distribution Time. Each Party shall, at the reasonable request of any other Party, take, or cause to be taken, such other actions as may be necessary to effect the foregoing.

(b) The provisions of Section 2.8(a) shall not apply to any of the following Contracts (or to any of the provisions thereof):

(i) this Agreement, the other Transaction Documents and the Merger Agreement (and each other Contract expressly contemplated by this Agreement, any other Transaction Document or the Merger Agreement to be entered into or continued by the Parties or any of the members of their respective Groups after the Distribution Time);

(ii) any Contracts to which any Person, other than the Parties and their respective wholly owned Subsidiaries, is a party (it being understood that (A) directors’ qualifying shares or similar interests will be disregarded for purposes of determining whether a Subsidiary is wholly owned and (B) to the extent that the rights and obligations of the Parties and the members of their respective Groups under any such Contracts constitute Seattle Assets or Seattle Liabilities, they shall be assigned pursuant to Section 2.1);

(iii) any Shared Contracts; and

(iv) any Seattle Intercompany Receivables and Seattle Intercompany Payables shall be settled and paid as of the Distribution Time or as promptly as practicable thereafter (and in any event within 30 days) by the member owing such amount (except for any such intercompany payables or receivables arising pursuant to a Transaction Document, which shall instead be settled in accordance with the terms of such Transaction Document).

Section 2.9 Shared Assets; Shared Contracts.

(a) The Parties shall use their commercially reasonable efforts to separate the Shared Assets into separate Assets so that the Seattle Business will remain entitled to the rights and benefits, and shall be subject to the Liabilities, with respect to or arising from each Shared Asset to the extent related to the Seattle Business, and Houston will retain the rights and benefits, and shall be subject to the Liabilities, with respect to or arising from each Shared Asset to the

extent related to the Houston Business. If any third party that is entitled to consent to the separation of the Shared Asset has not provided such consent or if the separation of a Shared Asset has not been completed as of the Distribution Date for any other reason, then the Parties shall use their commercially reasonable efforts to develop and implement arrangements (including subcontracting, sublicensing, subleasing or back-to-back agreement) to pass along to the Seattle Group the benefit and the Liabilities of the portion of any such Shared Asset related to the Seattle Business and to pass along to the Houston Group the benefit and the Liabilities of the portion of the Shared Asset related to the Houston Business, as the case may be. If and when any such consent is obtained, the Shared Asset will be separated in accordance with this Section 2.9. The obligations set forth in this Section 2.9 shall terminate on the date that is twenty-four (24) months after the Distribution Date. Seattle and Houston shall share equally any costs related to separating the Shared Asset.

(b) The Parties shall use their commercially reasonable efforts to separate the Shared Contracts into separate contracts so that the Seattle Business will remain entitled to the rights and benefits, and shall be subject to the Liabilities, with respect to or arising from each Shared Contract to the extent related to the Seattle Business, and Houston will retain the rights and benefits, and shall be subject to the Liabilities, with respect or arising from to each Shared Contract to the extent related to the Houston Business. If a counterparty to any Shared Contract that is entitled under the terms of the Shared Contract to consent to the separation of the Shared Contract has not provided such consent or if the separation of a Shared Contract has not been completed as of the Distribution Date for any other reason, then the Parties shall use their commercially reasonable efforts to develop and implement arrangements (including subcontracting, sublicensing, subleasing or back-to-back agreement) to pass along to the Seattle Group the benefit and the Liabilities of the portion of any such Shared Contract related to the Seattle Business and to pass along to the Houston Group the benefit and the Liabilities of the portion of the Shared Contract related to the Houston Business, as the case may be. If and when any such consent is obtained, the Shared Contract will be separated in accordance with this Section 2.9. With respect to each Shared Contract, the obligations set forth in this Section 2.9 shall terminate upon the earlier of (x) the termination or expiration of each such Shared Contract in accordance with its terms and (y) the date that is twenty-four (24) months after the Distribution Date. Seattle and Houston shall share equally any costs related to separating the Shared Contracts.

(c) Without limiting the foregoing, pending the separation of each Shared Asset or Shared Contract, the Parties shall (and shall cause their respective Affiliates to) use commercially reasonable efforts to maintain good relations with any obligees or other counterparties in connection with such Shared Asset or Shared Contract, keep such Shared Asset in good condition (ordinary course wear and tear excepted) and, in the case of Shared Contracts, comply in all material respects with the terms thereof and refrain from voluntarily terminating such Shared Contract.

(d) Except to the extent otherwise required by applicable Law, each of Houston and Seattle shall, and shall cause its Affiliates to, (i) for all U.S. federal (and applicable state, local and foreign) income tax purposes, treat the portion of each Shared Asset and each Shared Contract the rights and benefits of which inure to it or a member of its Group as Assets owned by, and/or Liabilities of, as applicable, it or the members of its Group, as applicable, as of no later than immediately prior to the Effective Time, and (ii) file all Tax Returns in a manner consistent with such treatment and not take any Tax position inconsistent therewith.

Section 2.10 Certain Adjustment.

(a) Certain Definitions.

(i) “Closing Working Capital” means, as of immediately prior to the Effective Time, (A) all Seattle Assets constituting “current” or other assets, in each case, as set forth in the applicable line items to be determined in accordance with Schedule 2.10(a)(i), but excluding any Seattle Cash, minus (B) all Seattle Liabilities constituting “current” or other liabilities, in each case, as set forth in the applicable line items to be determined in accordance with Schedule 2.10(a)(i), in each of the foregoing cases, prepared in accordance with Schedule 2.10(a)(i) and otherwise calculated in accordance with the Accounting Principles ((A) minus (B), the “Working Capital”), as such line items shall be finally determined in accordance with Section 2.10(a)(iv).

(ii) “Seattle Cash” means the aggregate amount of cash and cash equivalents in accounts held by or in the name of a member of the Seattle Group as of immediately prior to the Effective Time, other than (A) Pension Cash, (B) Insurance Proceeds received after the date hereof that were generated by Assets that, had the event giving rise to such Insurance Proceeds not occurred, would have been Seattle Assets and (C) any cash and cash equivalents received as proceeds of any asset divestiture by the Seattle Business outside the ordinary course of business after the date hereof and not otherwise contemplated by any of the Transaction Documents or the Merger Agreement (cash covered by clauses (B) and (C), together with Pension Cash, the “Specified Cash”); provided, however, that any such cash or cash equivalents that constitute restricted cash as determined in accordance with GAAP shall be valued at 70% of the amount of such restricted cash for purposes of calculating Closing Working Capital hereunder.

(iii) “Closing Working Capital Adjustment Amount” means the amount, which may be positive or negative, equal to (A) Closing Working Capital, minus (B) the average Working Capital over the four most recently completed fiscal quarters as of the Effective Time (the “Historical Average Working Capital”), plus (C) the Seattle Cash, minus (D) Seattle Indebtedness (the Closing Working Capital, the Historical Average Working Capital, the Seattle Cash and the Seattle Indebtedness, collectively, the “Adjustment Amounts”)

(iv) The Parties and Miami will cooperate in good faith to determine the appropriate account line items to be included in the Closing Statement no later than December 31, 2016 based on the principles set forth in Schedule 2.10(a)(i).

(b) Closing Statement.

(i) Promptly following the Effective Time, but in no event later than 90 days after the Effective Time, Houston shall prepare and deliver to Seattle a written statement for its review, prepared in accordance with Schedule 2.10(a)(i) (the “Closing Statement”), setting forth Houston’s good-faith calculations of each of the Adjustment Amounts and the Closing Working Capital Adjustment Amount, together with reasonable supporting detail.

(ii) Each Party shall make available to the other Party and, if applicable, to the Unaffiliated Accounting Firm, all books, records, documents, personnel and work papers (subject to, in the case of independent accountant work papers, the other Party or the Unaffiliated Accounting Firm, as applicable, entering into a customary release agreement with respect thereto) in the possession of such Party and reasonably requested by such other Party in connection with the preparation and review of the Closing Statement, the determination of the Disputed Items, the preparation of the Notice of Objection and the other matters contemplated by this Section 2.10.

(iii) Seattle agrees that, following the Closing through the date that the Final Adjustment Amounts and the Final Closing Working Capital Adjustment Amount are determined in accordance with this Section 2.10, Seattle will not (and will cause its Affiliates not to) take any action with respect to any accounting books, records, policies or procedures on which the Closing Statement is based that are inconsistent with the ordinary course past practices of the Seattle Business (or of Houston or any of its Affiliates with respect to the Seattle Business) prior to the Closing or that would impede or delay the final determination of the Final Adjustment Amounts and the Final Closing Working Capital Adjustment Amount.

(i) In the event Seattle disputes the correctness of any of the Adjustment Amounts or the Closing Working Capital Adjustment Amount as set forth in the Closing Statement, Seattle shall deliver to Houston a reasonably detailed written statement describing each objection (with reference to the applicable account description) and specifying the amount that Seattle reasonably believes is the correct amount for each disputed item (such statement, the “Notice of Objection”) within 60 days after receipt of the Closing Statement, and shall set forth, in writing and in reasonable detail, the reasons for Seattle’s objections.

(ii) If Seattle timely delivers a Notice of Objection in accordance with Section 2.10(c)(i), only those matters specified in such Notice of Objection shall be deemed to be in dispute (the “Disputed Items”), and all other matters included in the Closing Statement, shall be final, conclusive and binding upon the Parties. If Seattle does not deliver a Notice of Objection before the conclusion of the 60-day period referred to in Section 2.10(c)(i), the Closing Statement shall be final, conclusive and binding upon the Parties and Seattle and Miami shall be deemed to have agreed with all items and amounts contained in the Closing Statement. Houston and Seattle shall endeavor in good faith to resolve any Disputed Items within 30 days after Houston’s receipt of the Notice of Objection (the “Resolution Period”).

(iii) If Houston and Seattle are unable to resolve any Disputed Item during the Resolution Period, Houston and Seattle jointly shall, as soon as practicable and in any event within 25 days after the expiration of the Resolution Period, engage an

internationally recognized independent accounting firm, which firm shall not be the then regular auditors of Houston, Seattle or Miami (the firm so engaged, the “Unaffiliated Accounting Firm”), to resolve the Disputed Items (in a manner consistent with this Section 2.10). Promptly after joint engagement of the Unaffiliated Accounting Firm, Houston and Seattle shall provide the Unaffiliated Accounting Firm with a copy of this Agreement, the Closing Statement and the Notice of Objection. Each of Houston and Seattle shall deliver to the Unaffiliated Accounting Firm and to the other Party simultaneously a written submission of its final position with respect to each of the Disputed Items (which position may not be outside of the range between the respective amounts set forth in the Closing Statement and the Notice of Objection) within 15 days of the engagement of such Unaffiliated Accounting Firm. Each of Houston and Seattle shall thereafter be entitled to submit a rebuttal to the other’s submission, which rebuttals shall be delivered to the Unaffiliated Accounting Firm and to the other Party simultaneously within 10 days of the delivery of the Parties’ initial submissions to the Unaffiliated Accounting Firm and to each other. Neither Party may make (nor permit any of its Affiliates or Representatives to make) any additional submission to the Unaffiliated Accounting Firm or otherwise communicate with the Unaffiliated Accounting Firm. In no event shall either Party (i) communicate (or permit any of its Affiliates or Representatives to communicate) with the Unaffiliated Accounting Firm without providing the other Party a reasonable opportunity to participate in such communication or (ii) make (or permit any of its Affiliates or Representatives to make) a written submission to the Unaffiliated Accounting Firm unless a copy of such submission is simultaneously provided to the other Party. The Unaffiliated Accounting Firm shall have 30 days following submission of the Parties’ rebuttals to review the documents provided to it pursuant to this Section 2.10 and to deliver its reasoned written determination with respect to each of the Disputed Items submitted to it for resolution, as well as its determination of each of the Adjustment Amounts that was a Disputed Item and the Closing Working Capital Adjustment Amount. The Unaffiliated Accounting Firm shall resolve Disputed Items submitted to it based solely on the information provided to the Unaffiliated Accounting Firm by the Parties pursuant to the terms of this Agreement and not by independent review. The Unaffiliated Accounting Firm’s authority shall be limited to resolving disputes with respect to whether the individual Disputed Items were prepared in accordance with Schedule 2.10(a)(i) and otherwise in accordance with the Accounting Principles. In resolving each Disputed Item, the Unaffiliated Accounting Firm shall choose either the value assigned by Houston to such item or the value assigned by Seattle to such item, based on the Unaffiliated Accounting Firm’s assessment of which value is most consistent with Schedule 2.10(a)(i) and the Accounting Principles, and may not assign a value for any item other than a value proposed by Houston or Seattle in its respective final submission to the Unaffiliated Accounting Firm. The determination of the Unaffiliated Accounting Firm in respect of the correctness of each Disputed Matter shall be final, conclusive and binding on Houston and Seattle and not subject to appeal by either of the Parties, and judgment thereof may be entered or enforced in any court of competent jurisdiction.

(iv) The fees and expenses, if any, of the Unaffiliated Accounting Firm incurred in connection with this Agreement shall be allocated between the Parties based upon the ratio which the aggregate amount of the Disputed Items awarded to Seattle bears

to the aggregate amount of the Disputed Items contested by Seattle. For example, if Seattle claims that the Closing Working Capital Adjustment Amount is $1,000 greater (in Seattle’s favor) than the Closing Working Capital Adjustment Amount determined by Houston, and if the Unaffiliated Accounting Firm ultimately resolves the Disputed Items by awarding to Seattle $300 of the $1,000 contested, then the fees, costs and expenses of the Unaffiliated Accounting Firm will be allocated 30% (i.e., $300 ÷ $1,000) to Houston and 70% (i.e., $700 ÷ $1,000) to Seattle.

(d) Final Adjustment.

(i) The Adjustment Amounts and the Closing Working Capital Adjustment Amount, as finally determined pursuant to this Section 2.10 (whether by failure of Seattle to deliver a Notice of Objection, by agreement of Houston and Seattle or by determination of the Unaffiliated Accounting Firm), are referred to herein as the “Final Adjustment Amounts” and the “Final Closing Working Capital Adjustment Amount,” respectively.

(e) Not later than five Business Days after the determination of the Final Adjustment Amounts and the Final Closing Working Capital Adjustment Amount, a payment by wire transfer in respect thereof shall be made as follows:

(i) If the Final Closing Working Capital Adjustment Amount is a positive number, then the amount of such excess shall be paid to Houston by Seattle; and

(ii) If the Final Closing Working Capital Adjustment Amount is a negative number, then the absolute value of such difference shall be paid to Seattle by Houston.

Any payment pursuant to this Section 2.10(e) shall be treated as an adjustment to the Seattle Payment for all U.S. federal (and applicable state, local and foreign) income tax purposes and shall be made in immediately available funds in United States dollars by wire transfer to a bank account designated in writing by the Party entitled to receive the payment.

Section 2.11 Bank Accounts.

(a) Houston and Seattle each agrees to take, or cause the respective members of their respective Groups to take, prior to the Distribution Time (or as soon as possible thereafter), all actions necessary to amend all Contracts governing each bank and brokerage account owned by Seattle or any other member of the Seattle Group (collectively, the “Seattle Accounts”), so that such Seattle Accounts, if currently linked (whether by automatic withdrawal, automatic deposit or any other authorization to transfer funds from or to, hereinafter “linked”) to any bank or brokerage account owned by Houston or any other member of the Houston Group (collectively, the “Houston Accounts”) are de-linked from such Houston Accounts.

(b) Houston and Seattle each agrees to take, or cause the respective members of their respective Groups to take, prior to the Distribution Time (or as soon as possible thereafter), all actions necessary to amend all Contracts governing the Houston Accounts so that such Houston Accounts, if currently linked to any Seattle Account, are de-linked from such Seattle Accounts.

(c) With respect to any outstanding checks issued by Houston, Seattle or any of their respective Subsidiaries prior to the Distribution Time, such outstanding checks shall be honored from and after the Distribution Time by the Person or Group owning the account on which the check is drawn, without limiting the ultimate allocation of Liability for such amounts under this Agreement or any other Transaction Document.

(d) As between Houston and Seattle (and the members of their respective Groups), except to the extent prohibited by applicable Law, all payments and reimbursements received after the Distribution Time by either Party (or member of its Group) to which the other Party (or member of its Group) is entitled under this Agreement shall be held by such receiving Party in trust for the use and benefit of the Party entitled thereto and, within sixty (60) days of receipt by such receiving Party of any such payment or reimbursement, such receiving Party shall pay over, or shall cause the applicable member of its Group to pay over to the other Party or the applicable member of the other Party’s Group, the amount of such payment or reimbursement without right of setoff.

Section 2.12 Disclaimer of Representations and Warranties. EACH OF HOUSTON (ON BEHALF OF ITSELF AND EACH MEMBER OF THE HOUSTON GROUP) AND SEATTLE (ON BEHALF OF ITSELF AND EACH MEMBER OF THE SEATTLE GROUP) UNDERSTANDS AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT, THE MERGER AGREEMENT OR ANY OTHER AGREEMENT CONTEMPLATED HEREBY OR THEREBY, NO PARTY TO THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR THE MERGER AGREEMENT IS REPRESENTING OR WARRANTING TO ANY OTHER PARTY HERETO OR THERETO IN ANY WAY AS TO THE ASSETS, BUSINESSES OR LIABILITIES TRANSFERRED OR ASSUMED AS CONTEMPLATED HEREBY OR THEREBY; AS TO ANY APPROVALS OR NOTIFICATIONS REQUIRED IN CONNECTION HEREWITH OR THEREWITH; AS TO THE VALUE OR FREEDOM FROM ANY SECURITY INTERESTS OF, OR ANY OTHER MATTER CONCERNING, ANY ASSETS OF SUCH PARTY; AS TO THE ABSENCE OF ANY DEFENSES OR RIGHT OF SETOFF OR FREEDOM FROM COUNTERCLAIM WITH RESPECT TO ANY ACTION OR OTHER ASSET, INCLUDING ANY ACCOUNTS RECEIVABLE, OF ANY PARTY; OR AS TO THE LEGAL SUFFICIENCY OF ANY ASSIGNMENT, DOCUMENT, CERTIFICATE OR INSTRUMENT DELIVERED UNDER THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR THE MERGER AGREEMENT TO CONVEY TITLE TO ANY ASSET OR THING OF VALUE UPON THE EXECUTION, DELIVERY AND FILING HEREOF OR THEREOF. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT, THE MERGER AGREEMENT OR ANY OTHER AGREEMENT CONTEMPLATED HEREBY OR THEREBY, ALL SUCH ASSETS ARE BEING TRANSFERRED ON AN “AS IS,” “WHERE IS” BASIS (AND, IN THE CASE OF ANY REAL PROPERTY, BY MEANS OF A QUITCLAIM OR SIMILAR FORM DEED OR CONVEYANCE), AND THE RESPECTIVE TRANSFEREES SHALL BEAR THE ECONOMIC AND LEGAL RISKS THAT (I) ANY CONVEYANCE SHALL PROVE TO BE INSUFFICIENT TO VEST IN THE TRANSFEREE GOOD OR MARKETABLE TITLE, FREE AND CLEAR OF ANY SECURITY INTEREST, AND (II) ANY NECESSARY APPROVALS OR NOTIFICATIONS ARE NOT OBTAINED OR MADE OR THAT ANY REQUIREMENTS OF LAWS OR JUDGMENTS ARE NOT COMPLIED WITH.

Section 2.13 Post-Distribution Communications. After the Distribution Time, each Party or any member of its Group may receive mail, packages and other communications properly belonging to the other Party or any member of its Group. At all times after the Distribution Time, each Party and the members of its Group are hereby authorized to receive and open all mail, packages and other communications received by such Party or member that belongs to the other Party or any members of its Group, and to the extent that such mail, packages or other communications do not relate to the business of the receiving Party or member, the receiving Party or member shall promptly deliver such mail, packages or other communications (or, in case the same also relates to the business of the receiving Party or member, copies thereof) to the other Party as provided for in Section 9.5. The provisions of this Section 2.13 are not intended to, and shall not, be deemed to, constitute an authorization by any Party to permit the other to accept service of process on its behalf, and no Party is or shall be deemed to be the agent of any other Party for service of process purposes.

Section 2.14 Cooperation. Notwithstanding any provision of this Agreement or the Merger Agreement, (a) Houston shall keep Miami reasonably informed and furnish Miami with information relating to the determination of the Assets that are proposed to be transferred to, and Liabilities that are proposed to be assumed by, the Seattle Group under any Transaction Document on a reasonably current basis, (b) to the extent any Transaction Documents or exhibits or schedules thereto are to be completed following the date hereof, Houston and Seattle shall consult with Miami in good faith regarding the terms and conditions to be included in such documents, give Miami a reasonable opportunity to comment on any additions or modifications to such documents, take such comments into account in finalizing such documents and shall not finalize such documents without the prior written consent of Miami (such consent not to be unreasonably withheld, conditioned or delayed), and (c) with respect to any Intellectual Property Rights or IP Contracts that are not, as of the Distribution Date, included in the Transferred IP or Seattle Contracts, respectively, Houston shall consider in good faith any proposals from Miami to include those Intellectual Property Rights or IP Contracts that Miami reasonably believes are primarily (but not exclusively) used in, held for use or related to the Seattle Business and, if Houston agrees, take all actions necessary or advisable to transfer such Intellectual Property Rights or IP Contracts to Seattle in accordance with the terms of this Agreement; provided, however, that without limiting Houston’s obligations under this Agreement or the Intellectual Property Matters Agreement, Houston’s determination of whether or not an Intellectual Property Right or IP Contract should be transferred to Seattle pursuant to this clause (c) shall be final.

Section 2.15 Specified Cash Items. Notwithstanding any provision of this Agreement or the Merger Agreement, as of the Effective Time, (a) Houston shall cause the Seattle Group to have immediately available cash with respect to Seattle’s defined benefits plan liabilities (or shall have pre-funded such liabilities in whole or in part on or after September 1, 2016 and prior to the Effective Time) in the aggregate amount set forth on Schedule 2.15(a); provided that (i) the amount of such cash so held or pre-funded in any jurisdiction set forth on Schedule 2.15(a) shall not exceed the amount for such jurisdiction as set forth on Schedule 2.15(a) and (ii) prior to effecting any such pre-funding, Houston and Miami shall consult in good faith regarding such

pre-funding in the relevant jurisdiction, and such pre-funding will be subject to Miami’s prior written consent, not to be unreasonably withheld, conditioned or delayed; and (b) Houston shall cause the Seattle Group to have immediately available cash or cash equivalents in an aggregate amount equal to the Specified Cash (other than Pension Cash) as of immediately prior to the Effective Time; provided, however, that any such cash or cash equivalents that constitute restricted cash as determined in accordance with GAAP shall be valued at 70% of the amount of such restricted cash for purposes of this clause (b).

Section 2.16 Certain Contracts. Notwithstanding anything to the contrary set forth in this Agreement or Section 7.6 of the Merger Agreement, (a) Houston shall use its commercially reasonable efforts to assist Seattle to, as promptly as practicable following the date hereof, provide to Miami a complete and accurate list of all Seattle Contracts and Shared Contracts, in each case, pursuant to which any Intellectual Property Rights are licensed or granted to Houston or any of its Affiliates from a third party, where such Intellectual Property Rights are incorporated or embedded in, or otherwise required for the manufacture, use, importation, exportation, or Sale or Service (each, as defined in the Intellectual Property Matters Agreement) of, any product or service referenced in clauses (a) or (b) of the definition of Seattle Licensed Products in the Intellectual Property Matters Agreement and (b) with respect to such Intellectual Property Rights, Houston shall use its reasonable best efforts to obtain licenses or sub-licenses to (for the benefit of the Seattle Business) or otherwise replace such Intellectual Property Rights from the date of this Agreement through the date that is twenty-four (24) months after the date of this Agreement, at Houston’s expense (including payment of fees or other costs), but subject in each case to expense caps set forth on Schedule 2.16.

Section 2.17 IT Platform. Houston shall use its commercially reasonable efforts to deliver to Seattle, by the Distribution Date, standalone information technology systems (including information technology applications and infrastructure assets) that (in combination with Services (as defined in the Transition Services Agreement) provided to Seattle under the Transition Services Agreement) in and of themselves will not prevent Seattle from complying in all material respects with IFRS (as defined in the Merger Agreement). If Houston shall not have delivered such standalone information technology systems to Seattle by the Distribution Date, Houston and Seattle shall discuss in good faith which Party will be responsible for the completion and costs of such standalone information technology systems after the Distribution Date.

ARTICLE III

THE DISTRIBUTION

Section 3.1 Actions at or Prior to the Distribution Time. Prior to the Distribution Time and subject to the terms and conditions set forth herein, the following shall occur:

(a) Securities Law Matters.

(i) Seattle shall cooperate with Houston to accomplish the Distribution, including in connection with the preparation of all documents and the making of all filings required in connection with the Distribution. Houston shall be

permitted to reasonably direct and control the efforts of the Parties in connection with the Distribution, and Seattle shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all other things reasonably necessary to facilitate the Distribution as reasonably directed by Houston in good faith and in accordance with the applicable terms and subject to the conditions of this Agreement and the other Transaction Documents.

(ii) Seattle shall file the Disclosure Documents and any amendments or supplements thereto as may be necessary or advisable in order to cause the Disclosure Documents to become and remain effective as required by the SEC or federal, state or other applicable securities Laws. Houston and Seattle shall prepare and mail or otherwise make available, prior to any Distribution Date, to the holders of Houston Common Stock, such information concerning Seattle, Miami, their respective businesses, operations and management, the Distribution and such other matters as Houston shall reasonably determine and as may be required by Law. Houston and Seattle will prepare, and Seattle will, to the extent required by applicable Law, file with the SEC, any such documentation and any requisite no-action letters which Houston determines are necessary or desirable to effectuate the Distribution, and Houston and Seattle shall use their respective reasonable best efforts to obtain all necessary approvals from the SEC with respect thereto as soon as practicable. Houston and Seattle shall take all such actions as may be necessary or appropriate under the securities or “blue sky” Laws of states or other political subdivisions of the United States and shall use commercially reasonable efforts to comply with all applicable foreign securities Laws in connection with the transactions contemplated by this Agreement and the other Transaction Documents.

(b) Financing. On or before the Distribution Date, subject to the terms and conditions of Section 7.7 of the Merger Agreement, Seattle shall enter into a definitive agreement or agreements providing for indebtedness in an aggregate principal amount equal to $2,600,000,000, which indebtedness shall consist of borrowings on the terms and conditions contemplated by the Seattle Commitment Letter (as defined in the Merger Agreement) (collectively, the “Seattle Debt”). Between the date of this Agreement and the Distribution Time, subject to the terms and conditions of Section 7.7 of the Merger Agreement, Seattle shall incur the Seattle Debt and receive the proceeds thereof in order to fund the Seattle Payment.

(i) Without limiting the requirements of Section 2.8 but subject to Section 2.15, prior to the Distribution Time, Houston may, and may cause the members of the Houston Group and the Seattle Group to, take such actions as Houston deems advisable to minimize or reduce the amount of cash and cash equivalents remaining in any accounts held by or in the name of a member of the Seattle Group as of the Distribution Time; provided, however, that Houston shall cause the aggregate amount of cash and cash equivalents in accounts held by or in the name of a member of the Seattle Group as of the Effective Time (other than Specified Cash) to be no less than the amount set forth on Schedule 3.1(c)(i) (the “Minimum Cash Amount”); provided further, however, that any such cash or cash equivalents that constitute restricted cash as determined in accordance with GAAP shall be valued at 70% of the amount of such restricted cash for purposes of calculating the Minimum Cash Amount hereunder.

(ii) Prior to the Distribution, in consideration of the transfer of the Seattle Assets contemplated by the Reorganization, (A) Seattle shall issue to Houston additional shares of Seattle Common Stock such that the number of shares of Seattle Common Stock then outstanding shall be equal to the number of shares of Seattle Common Stock necessary to effect the Distribution and (B) Seattle shall pay to Houston cash in an aggregate amount equal to $2,500,000,000.00, subject to reduction in accordance with Section 3.1(c) of the Merger Agreement (the “Seattle Payment”), in immediately available funds to one or more accounts designated by Houston.

(d) Distribution Agent. Houston shall enter into a distribution agent agreement with the Distribution Agent or otherwise provide instructions to the Distribution Agent regarding the Distribution.

(e) Seattle-Bound Subsidiary Stock Exchange. Immediately prior to the Record Date and in connection with the Reorganization, each of the Seattle-Bound Subsidiaries, in exchange for each share of Houston Common Stock then held by such Seattle-Bound Subsidiary (the “Subsidiary Stock Recapitalization”), shall receive from Houston one share of preferred stock of Houston (the “Common-Equivalent Houston Series A Preferred Stock”). Houston shall redeem each share of Common-Equivalent Houston Series A Preferred Stock at the Distribution Time for a number of Class B shares of common stock, par value $0.01 per share, of Seattle (the “Seattle Class B Common Stock”) having a value (based on the (i) Exchange Ratio (as defined in the Merger Agreement) multiplied by (ii) the average of the high and low trading price on the London Stock Exchange plc of Miami Common Stock (as defined in the Merger Agreement) on the trading day immediately preceding the Distribution Date) equal to the value of one share of Houston Common Stock (based on the average of the high and low “regular way” trading price of Houston Common Stock on the trading day immediately preceding the Distribution Date) (the “Subsidiary Stock Exchange”). For U.S. federal income tax purposes, (i) the Subsidiary Stock Recapitalization is intended to be treated as a recapitalization within the meaning of Section 368(a) of the Code and (ii) the Subsidiary Stock Exchange is intended to be treated as part of the same distribution (within the meaning of Section 355(a) of the Code) as the Distribution.

(f) Satisfying Conditions to the Distribution. Houston and Seattle shall cooperate to cause the conditions to the Distribution set forth in Section 3.2 to be satisfied and to effect the Distribution at the Distribution Time upon such satisfaction (or waiver). In addition, and without limiting the generality of the foregoing, Houston shall use its reasonable best efforts to obtain a Solvency Opinion.

Section 3.2 Conditions Precedent to the Distribution. In no event shall the Distribution occur unless each of the following conditions shall have been satisfied or waived by Houston, in whole or in part, in its sole discretion (other than the condition set forth in Section 3.2(a), which prior to the termination of the Merger Agreement may not be waived without Miami’s written consent, which consent shall not be unreasonably withheld, conditioned or delayed):

(a) the Reorganization shall have been completed substantially in accordance with the Plan of Reorganization (other than those steps that are expressly contemplated to occur at or after the Distribution);

(b) the consummation or satisfaction of the actions set forth in Section 3.1(c)(ii) and Section 3.1(e);

(c) an independent appraisal firm shall have delivered an opinion to the Board of Directors of Houston as to the solvency of Houston after giving effect to the Seattle Payment and the consummation of the Distribution (the “Solvency Opinion”); and such Solvency Opinion shall be reasonably acceptable to Houston in form and substance in Houston’s sole discretion; and such Solvency Opinion shall not have been withdrawn or rescinded or modified in any respect adverse to Houston; and

(d) the satisfaction or waiver of the conditions set forth in Article 8 of the Merger Agreement, including: (i) the satisfaction, or waiver by Houston and Miami, of the conditions set forth in Section 8.1 the Merger Agreement; (ii) the satisfaction, or waiver by Houston, of the conditions set forth in Section 8.2 of the Merger Agreement; and (iii) the satisfaction, or waiver by Miami, of the conditions set forth in Section 8.3 of the Merger Agreement, in each case other than those conditions that, by their nature, are to be satisfied contemporaneously with the Distribution or the Merger.

Each of the foregoing conditions is for the sole benefit of Houston and shall not give rise to or create any duty on the part of Houston or its Board of Directors to waive or not to waive any such condition in this Agreement or the Merger Agreement, or in any way limit Houston’s rights of termination set forth in this Agreement or the Merger Agreement, provided, however, that the foregoing shall not limit the Parties’ rights under Section 7.6 of the Merger Agreement.

Section 3.3 The Distribution.

(a) Houston may elect, in its sole discretion, to effect the Distribution in the form of (i) a One-Step Spin-Off; or (ii) an Exchange Offer (including any Clean-Up Spin-Off), provided that (A) the economic value of the Merger to each of Houston and Miami is preserved (B) the Exchange Offer (including any Clean-Up Spin-Off) does not create any material and adverse Tax consequences to Miami and (C) the Exchange Offer (including any Clean-Up Spin-Off) does not materially delay the consummation of the Distribution and the Merger.

(b) If Houston elects to effect the Distribution in the form of a One-Step Spin-Off, then the Board of Directors of Houston, in accordance with applicable Law, shall establish (or designate Persons to establish) a Record Date and the Distribution Date, and Houston shall establish appropriate procedures in connection with, and to effectuate in accordance with applicable Law, the Distribution. All shares of Seattle Common Stock held by Houston on the Distribution Date shall be distributed to the holders of record of Houston Common Stock in the manner determined by Houston and in accordance with Section 3.3(f). To the extent the Distribution is effected as a One-Step Spin-Off, subject to the terms thereof, in accordance with Section 3.3(f), each holder of Houston Common Stock on the Record Date shall be entitled to receive for each share of Houston Common Stock held by such holder on the Record Date a

number of shares of Seattle Common Stock equal to (i) the total number of shares of Seattle Common Stock held by Houston on the Distribution Date, multiplied by (ii) a fraction, the numerator of which is the number of shares of Houston Common Stock held by such holder on the Record Date and the denominator of which is the total number of shares of Houston Common Stock outstanding on the Record Date.

(c) If Houston elects to effect the Distribution as an Exchange Offer, Houston shall determine the terms of such Exchange Offer, including the number of shares of Seattle Common Stock that will be offered for each validly tendered share of Houston Common Stock, the period during which such Exchange Offer shall remain open and any extensions thereto, the procedures for the tender and exchange of shares and all other terms and conditions of such Exchange Offer, which terms and conditions shall comply with the terms of the Merger Agreement and all securities Law requirements applicable to such Exchange Offer. In the event that Houston’s stockholders subscribe for less than all of the Seattle Common Stock in the Exchange Offer, all shares of Seattle Common Stock held by Houston that are not exchanged pursuant to the Exchange Offer will be distributed as a dividend to Houston stockholders on a pro rata basis on the Distribution Date and immediately following the consummation of the Exchange Offer (the “Clean-Up Spin-Off”), so that Houston will be treated for U.S. federal income tax purposes as having distributed all of the shares of Seattle Common Stock to the Houston stockholders. To the extent the Distribution is effected as an Exchange Offer, subject to the terms thereof, in accordance with Section 3.3(f), each Houston stockholder may elect in the Exchange Offer to exchange a number of shares of Houston Common Stock held by such Houston stockholder for shares of Seattle Common Stock. The terms and conditions of any Clean-Up Spin-Off will be as determined by Houston, subject to the provisions of Section 3.3(b), mutatis mutandis.

(d) None of the Parties, nor any of their Affiliates hereto shall be liable to any Person in respect of any shares of Seattle Common Stock (or dividends or distributions with respect thereto) that are properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.

(e) Houston, Seattle, or the Distribution Agent, as applicable, shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement such amounts as are required to be deducted and withheld with respect to the making of such payments under the Code or any provision of local or foreign Tax Law. Any withheld amounts will be treated for all purposes of this Agreement as having been paid to the Persons otherwise entitled thereto.

(f) Upon the consummation of the One-Step Spin-Off or the Exchange Offer, Houston shall deliver to the Distribution Agent, a global certificate representing the Seattle Common Stock being distributed in the One-Step Spin-Off or exchanged in the Exchange Offer, as the case may be, for the account of the Houston stockholders that are entitled thereto. Upon a Clean-Up Spin-Off, if any, Houston shall deliver to the Distribution Agent an additional global certificate representing the Seattle Common Stock being distributed in the Clean-Up Spin-Off for the account of the Houston stockholders that are entitled thereto. The Distribution Agent shall hold such certificate or certificates, as the case may be, for the account of the Houston stockholders pending the Merger, as provided in Section 3.2 of the Merger Agreement.

Immediately after the Distribution Time and prior to the date and time at which the Merger becomes effective, the shares of Seattle Common Stock shall not be transferable and the transfer agent for the Seattle Common Stock shall not transfer any shares of Seattle Common Stock. The Distribution shall be deemed to be effective upon written authorization from Houston to the Distribution Agent to proceed.

Section 3.4 Authorization of Seattle Common Stock to Accomplish the Distribution. Prior to the Distribution, Houston and Seattle shall take all necessary action required to file a Certificate of Amendment to the Certificate of Incorporation of Seattle with the Secretary of State of the State of Delaware, to increase the number of authorized shares of Seattle Common Stock and Seattle Class B Common Stock so that the Seattle Common Stock and the Seattle Class B Common Stock then issued and outstanding shall, without any action on the part of the holder thereof, be subdivided and converted into that number of fully paid and non-assessable shares of Seattle Common Stock and Seattle Class B Common Stock issued and outstanding equal to the number of shares of Seattle Common Stock and Seattle Class B Common Stock necessary to effect the Distribution and the Subsidiary Stock Exchange, respectively.

ARTICLE IV

ACCESS TO INFORMATION

Section 4.1 Access to Information.

(a) Until the fifth (5th) anniversary of the Distribution Date (or such longer period as such access by a Party is required under applicable Law), subject to Section 7.2 and any other applicable confidentiality obligations, each of Houston and Seattle, on behalf of its respective Group, agrees to provide, or cause to be provided, to the other Group and its Representatives, as soon as reasonably practicable after written request therefor, any Information in the possession or under the control of such respective Group which the requesting Party reasonably needs to (i) comply with reporting, disclosure, filing or other requirements imposed on the requesting Party (including under applicable securities Laws) by a Governmental Authority having jurisdiction over the requesting Party, (ii) carry out its human resources functions or to establish, assume or administer its benefit plans or payroll functions, (iii) satisfy accounting or other similar requirements or (iv) comply with its obligations under this Agreement, the Merger Agreement or any other Transaction Document (including with respect to the completion of the Reorganization after the date of this Agreement); provided that in the case of Information reasonably requested by a Party to satisfy its financial and statutory audit requirements, the access contemplated by this Section 4.1(a) shall extend until the tenth (10th) anniversary of the Distribution Date; provided, further, that in the event that any Party determines that any such provision of Information could be commercially detrimental, violate any Law or agreement or waive any attorney-client privilege, the Parties shall take all reasonable measures to permit the compliance with such obligations in a manner that avoids any such detriment or consequence.

(b) Until the fifth (5th) anniversary of the Distribution Date (or such longer period as such access by Seattle is required under applicable Law), subject to Section 7.2 and any other applicable confidentiality obligations, (i) Seattle and its Representatives shall have access

during regular business hours (as in effect from time to time) to the documents and objects of historical significance that relate to the Seattle Business that are located in archives retained or maintained by any member of the Houston Group and (ii) Seattle may obtain copies (but not originals unless it is a Seattle Asset) of documents for bona fide business purposes and may obtain objects for exhibition purposes for commercially reasonable periods of time if required for such bona fide business purposes; provided that Seattle shall cause any such objects to be returned promptly in the same condition in which they were delivered to Seattle, and Seattle shall comply with any rules, procedures or other requirements, and shall be subject to any restrictions, that are then applicable to Houston. Nothing herein shall be deemed to restrict the access of any member of the Houston Group to any such documents or objects or to impose any liability on any member of the Houston Group if any such documents or objects are not maintained or preserved by Houston.

(c) Until the fifth (5th) anniversary of the Distribution Date (or such longer period as such access by Houston is required under applicable Law), subject to Section 7.2 and any other applicable confidentiality obligations, (i) Houston and its Representatives shall have access during regular business hours (as in effect from time to time) to the documents and objects of historical significance that relate to the Houston Business that are located in archives retained or maintained by any member of the Seattle Group and (ii) Houston may obtain copies (but not originals unless it is not a Seattle Asset) of documents for bona fide business purposes and may obtain objects for exhibition purposes for commercially reasonable periods of time if required for such bona fide business purposes; provided that Houston shall cause any such objects to be returned promptly in the same condition in which they were delivered to Houston and Houston shall comply with any rules, procedures or other requirements, and shall be subject to any restrictions that are then applicable to Seattle. Nothing herein shall be deemed to restrict the access of any member of the Seattle Group to any such documents or objects or to impose any liability on any member of the Seattle Group if any such documents or objects are not maintained or preserved by Seattle.

(d) Without limiting the generality of the foregoing, until the second (2nd) Houston fiscal year-end occurring after the Distribution Date, each of Houston and Seattle shall use its commercially reasonable efforts to cooperate with the other Party’s Information requests to enable (i) the other Party to meet its timetable for dissemination of its earnings releases, financial statements and management’s assessment of the effectiveness of its disclosure controls and procedures and its internal control over financial reporting in accordance with Items 307 and 308, respectively, of Regulation S-K and (ii) the other Party’s accountants to timely complete their review of the quarterly financial statements and audit of the annual financial statements of the other Party, including, to the extent applicable to such Party, its auditor’s audit of its internal control over financial reporting and management’s assessment thereof in accordance with Section 404 of the Sarbanes-Oxley Act of 2002 and the SEC’s and Public Company Accounting Oversight Board’s rules and auditing standards thereunder.

Section 4.2 Ownership of Information. Any Information owned by one Group that is provided to a requesting Party pursuant to Section 4.1 shall be deemed to remain the property of the providing Party, except where such Information is an Asset of the requesting Party pursuant to the provisions of this Agreement or any other Transaction Document. Unless specifically set forth herein, nothing contained in this Agreement shall be construed as granting or conferring rights of license or otherwise in any Information requested or provided pursuant to Section 4.1.

Section 4.3 Compensation for Providing Information. The Party requesting Information pursuant to Section 4.1 agrees to reimburse the other Party for the reasonable out-of-pocket costs and expenses, if any, of creating, gathering and copying such Information (including any costs and expenses incurred in any review of Information for purposes of protecting the privileged Information of the providing Party or in connection with the restoration of backup tapes for purposes of providing the requested Information), to the extent that such costs are incurred in connection with such other Party’s provision of Information in response to the requesting Party. The Party requesting Information pursuant to Section 4.1 agrees to pay the applicable then-prevailing fee for any archive research services performed by the other Party.

Section 4.4 Record Retention.

(a) To facilitate the possible exchange of Information pursuant to this Article IV and other provisions of this Agreement, from and after the Distribution Time, the Parties agree to use their commercially reasonable efforts to retain all Information in their respective possession or control in accordance with the document retention policies or ordinary course practices of Houston in effect as of the Distribution Time (including any Information that is subject to a “Litigation Hold” issued by either Party prior to the Distribution Time) or such other document retention policies as may be reasonably adopted by the applicable Party from and after the Distribution Time (provided that such other document retention policies at least provide for the retention of documents until the expiration of any applicable statute of limitations and as otherwise required by applicable Law).

(b) Notwithstanding anything to the contrary herein, no Party will destroy, or permit any of its Subsidiaries to destroy, any Information contemplated by Section 4.1(a) without first offering to deliver such Information to the other Party, at the other Party’s cost and expense; provided that (i) in the case of any Information relating to a pending or threatened Action that is known to a member of the Group in possession of such Information, the Parties shall comply with the requirements of the applicable “Litigation Hold” (provided that with respect to any pending or threatened Action arising after the Distribution Time, the requirements of this clause (i) shall apply only to the extent that the member of the Houston Group or the Seattle Group that is in possession of such Information has been notified in writing pursuant to a “Litigation Hold” of such pending or threatened Action); and (ii) in no event shall a Party destroy, or permit any of its Subsidiaries to destroy, any Information required to be retained by applicable Law.

(c) In the event of either Party’s or any of its Subsidiaries’ inadvertent failure to comply with its applicable document retention policies as required under this Section 4.4, such Party shall be liable to the other Party solely for the amount of any monetary fines or penalties imposed or levied against such other Party by a Governmental Authority (which fines or penalties shall not include any Liabilities asserted in connection with the claims underlying the applicable Action, other than fines or penalties resulting from any claim of spoliation) as a result of such other Party’s inability to produce Information caused by such inadvertent failure and, notwithstanding Section 6.1, Section 6.2 and Section 6.3, shall not be liable to such other Party for any other Liabilities in connection therewith. Notwithstanding the foregoing, no Party shall have any Liability to any other Party if any Information is destroyed, provided that such Party has used its reasonable best efforts to comply with Section 4.4(a) and Section 4.4(b).

Section 4.5 Liability for Information Provided. No Party shall have any Liability to any other Party in the event that any Information exchanged or provided pursuant to this Agreement is found to be inaccurate, in the absence of willful misconduct by the Party providing such Information.

Section 4.6 Other Agreements Providing for Exchange of Information.

(a) The rights and obligations granted under this Article IV are subject to any specific limitations, qualifications or additional provisions on the sharing, exchange, retention or confidential treatment of Information set forth in the Merger Agreement or any other Transaction Document.

(b) When any Information provided by one Group to the other is no longer needed for the purposes contemplated by this Agreement, the Merger Agreement or any other Transaction Document (including any Information that is not relevant to the receiving Party’s request for such Information) or is no longer required to be retained by applicable Law, the receiving Party will promptly, upon the request of the providing Party, either (i) return to the providing Party all Information in a tangible form (including all copies thereof and all notes, extracts or summaries based thereon) or (ii) certify to the providing Party that it has destroyed such Information (and all copies thereof and all notes, extracts or summaries based thereon).

Section 4.7 Production of Witnesses and Records in Connection with an Action.

(a) Notwithstanding anything to the contrary in Section 4.1, from and after the Distribution Time, except in the case of an adversarial Action by one Party against another Party, each Party shall use its reasonable efforts to make available to each other Party, upon written request, the former, current and future directors, officers, employees and other Representatives of the members of its respective Group as witnesses, and any books, records or other Information within its control or which it otherwise has the ability to make available, to the extent that any such Person (giving consideration to business demands of such directors, officers, employees and other Representatives) or books, records or other Information may reasonably be required in connection with any Action in which the requesting Party may from time to time be involved, regardless of whether such Action is a matter with respect to which indemnification may be sought under this Agreement. The requesting Party shall bear all out-of-pocket costs and expenses in connection therewith.

(b) The obligation of the Parties to provide witnesses pursuant to this Section 4.7 is intended to be interpreted in a manner so as to facilitate cooperation and shall include the obligation to provide as witnesses officers without regard to whether the witness or the employer of the witness could assert a possible business conflict, except in the case of an adversarial Action by one Party against another Party.

(c) In connection with any matter contemplated by this Section 4.7, the Parties will enter into a mutually acceptable joint defense agreement so as to maintain to the extent practicable any applicable attorney-client privilege, work product immunity or other applicable privileges or immunities of any member of any Group.

(d) For the avoidance of doubt, the provisions of this Section 4.7 are in furtherance of the provisions of Section 4.1 and shall not be deemed to limit the Parties’ rights and obligations under Section 4.1.

Section 4.8 Counsel; Privileges; Legal Materials.

(a) In-house lawyers employed by Houston and its Affiliates prior to the Distribution Time (“Existing Houston Counsel”) have provided legal services to and jointly represented Houston and its Affiliates, including members of the Houston Group and the Seattle Group. From and after the Distribution Time, certain Existing Houston Counsel will remain employees of one or more members of the Houston Group and provide legal services to and represent only the Houston Group (“Houston Counsel”), and certain Existing Houston Counsel will become employees of one or more members of the Seattle Group and provide legal services to and represent only the Seattle Group (“Seattle Counsel”). From and after the Distribution Time, (i) Houston Counsel will represent only the Houston Group; (ii) Seattle Counsel will represent only the Seattle Group; and (iii) Seattle Counsel and Houston Counsel will, subject to rules of professional responsibility respecting obligations to former clients, owe a duty of loyalty and other professional obligations only to their respective clients. The Parties have previously been jointly represented by the Existing Houston Counsel in various legal matters of common interest. This joint representation included in its scope all matters prior to the Distribution Time in which a Party or another member of its Group was represented by any of the Existing Houston Counsel.

(b) The Parties acknowledge and agree that all attorney-client privilege, attorney work-product protection and expectation of client confidentiality with respect to any Information concerning general business matters related to the Seattle Business and members of the Seattle Group prior to the Distribution (excluding any Information concerning any proposed sale, spin-off or other disposition of the Seattle Business or any other transaction contemplated by this Agreement, the Merger Agreement or any other Transaction Document or in lieu of any of the foregoing) (collectively, “General Seattle Business Information”) shall be subject to a joint privilege and protection between the members of the Houston Group, on the one hand, and the members of the Seattle Group, on the other hand. Houston and the members of the Seattle Group shall have equal right and obligation to assert such joint privilege and protection, and no such joint privilege or protection may be waived by (i) Houston without the prior written consent of Seattle or (ii) any member of the Seattle Group without the prior written consent of Houston; provided, however, that any such privileged communications or attorney-work product, whether arising prior to or after the Distribution Date, with respect to any matter for which a Party has an indemnification obligation hereunder, shall be subject to the sole control of such Party, which shall be solely entitled to control the assertion or waiver of the privilege or protection.

(c) The Parties acknowledge and agree that all attorney-client privilege, attorney work-product protection and expectation of client confidentiality with respect to (i) any Information concerning any proposed sale, spin-off or other disposition of the Seattle Business or any other transaction contemplated by this Agreement, the Merger Agreement or any other

Transaction Document or in lieu of any of the foregoing, and (ii) any Information other than General Seattle Business Information, shall in each case be retained and controlled only by Houston and may be waived only by Houston. Seattle acknowledges and agrees, on behalf of itself and each member of the Seattle Group, that (i) the foregoing attorney-client privilege, attorney work-product protection and expectation of client confidentiality shall not be controlled, owned, used, waived or claimed by any member of the Seattle Group at any time after the Distribution Time; and (ii) in the event of a dispute between any member of the Seattle Group and a third party or any other circumstance in which a third party requests or demands that any member of the Seattle Group produce privileged materials or attorney work-product of any member of the Houston Group (including the privileged communications and attorney work-product covered by this Section 4.8), Seattle shall cause such member of the Seattle Group to assert such privilege or protection on behalf of the applicable member of the Houston Group to prevent disclosure of privileged communications or attorney work-product to such third party.

(d) The Parties agree that the Reorganization and Distribution shall not waive or affect any applicable privileges, including the attorney-client privilege, the attorney work product doctrine, the common interest privilege and the joint-client/joint representation privilege. No Party may waive any privilege that could be asserted under any applicable Law and in which the other Party has joint privilege, without the prior written consent of the other Party. If any dispute arises between Houston and Seattle, or any members of their respective Groups, regarding whether joint privilege should be waived, each Party (i) shall negotiate with the other Party in good faith and (ii) shall endeavor to minimize any prejudice to the rights of the other Party. For the avoidance of doubt, each Party shall be permitted to withhold its consent to the waiver of a privilege for the purpose of protecting its own legitimate interests.

(e) Notwithstanding Section 4.8(b), the Parties acknowledge and agree that, as between the Houston Group and the Seattle Group (as constituted as of immediately before the Distribution) Wachtell, Lipton, Rosen & Katz, Skadden, Arps, Slate, Meagher & Flom LLP (together, “Counsel”) and Existing Houston Counsel represented, for times prior to the Distribution, only Houston and not any member of the Seattle Group. Notwithstanding Section 4.8(b), the Parties acknowledge and agree that (i) any advice given by or communications with Counsel prior to the Distribution shall not be subject to any joint privilege and shall be owned solely by Houston, (ii) any advice given by or communications with Houston counsel (to the extent (A) it relates to any proposed sale, spin-off or other disposition of the Seattle Business or any other transaction contemplated by this Agreement, the Merger Agreement or any other Transaction Document or (B) it concerns matters (other than general business matters) related to the Seattle Business and members of the Seattle Group prior to the Distribution) shall not be subject to any joint privilege and shall be owned solely by Houston, and (iii) no member of the Seattle Group (as of immediately before the Distribution) has the status of a client of Counsel as a result of advice given by or communications with Counsel prior to the Distribution, for conflict of interest or any other purposes. Houston and Seattle (for itself and on behalf of each member of the Seattle Group and, after the Effective Time, Miami and each Subsidiary of Miami) hereby agree that, in the event that any dispute, or any other matter in which the interests of Houston, its Affiliates and its direct and indirect equityholders, on the one hand, and the Seattle Group or, after the Effective Time, the Miami Group, on the other hand, are adverse, arises after the Effective Time between the Seattle Group or, after the Effective Time, the Miami Group, on the one hand, and Houston, its Affiliates and its direct and indirect equityholders, on the other hand, Wachtell, Lipton, Rosen & Katz and Skadden, Arps, Slate, Meagher & Flom LLP may represent Houston, its Affiliates and its direct and indirect equityholders in such dispute, even though the interests of Houston, its Affiliates and its direct and indirect

equityholders may be directly adverse to one or more members of the Seattle Group or, after the Effective Time, the Miami Group, unless Wachtell, Lipton, Rosen & Katz or Skadden, Arps, Slate, Meagher & Flom LLP (as applicable) formerly represented one or more of members of the Seattle Group in any matter substantially related to such dispute.

(f) In furtherance of the Parties’ agreement under this Section 4.8, Houston and Seattle shall, and shall cause applicable members of their respective Group to, maintain their respective separate and joint privileges, including by executing joint defense and common interest agreements where necessary or useful for this purpose.

(g) The transfer of all Information pursuant to this Agreement is made in reliance on the agreement of Houston and Seattle set forth in this Section 4.8 and in Section 7.2 to maintain the confidentiality of privileged Information and to assert and maintain all applicable privileges. The Parties agree that their respective rights to any access to Information, witnesses and other Persons, the furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement and the transfer of privileged Information between the Parties and members of their respective Groups pursuant to this Agreement, shall not be deemed a waiver of any privilege that has been or may be asserted under this Agreement or otherwise.

ARTICLE V

RELEASES

Section 5.1 Release of Pre-Distribution Claims.

(a) Except (i) as provided in Section 5.1(c), (ii) as may be otherwise expressly provided in this Agreement, any other Transaction Document or the Merger Agreement and (iii) for any matter for which any Party is entitled to indemnification or contribution pursuant to Article VI, effective as of the Distribution Time, Seattle does hereby, for itself and each other member of the Seattle Group, their respective Affiliates, successors and assigns, and all Persons who at any time prior to the Distribution Time have been directors, officers, agents or employees of any member of the Seattle Group (in each case, in their respective capacities as such), remise, release and forever discharge Houston and the other members of the Houston Group, their respective Affiliates, successors and assigns, and all Persons who at any time prior to the Distribution Time have been stockholders, members, partners, directors, managers, officers, agents or employees of any member of the Houston Group (in each case, in their respective capacities as such), and their respective heirs, executors, administrators, successors and assigns (collectively, the “Houston Released Persons”), from any and all Liabilities whatsoever, whether at Law or in equity (including any right of contribution), whether arising under any Contract, by operation of Law or otherwise, to the extent existing or arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed at or prior to the Distribution Time, including in connection with the transactions and all other activities to implement the Reorganization, the Distribution,

the Merger and any of the other transactions contemplated by this Agreement, the other Transaction Documents or the Merger Agreement. Without limitation, the foregoing release includes a release of any rights and benefits with respect to such Liabilities that Seattle and each member of the Seattle Group, and their respective Affiliates, successors and assigns, now has or in the future may have conferred upon them by virtue of any statute or common law principle which provides that a general release does not extend to claims which a party does not know or suspect to exist in its favor at the time of executing the release, if knowledge of such claims would have materially affected such party’s settlement with the obligor. In this connection, Seattle hereby acknowledges that it is aware that factual matters now unknown to it may have given or may hereafter give rise to Liabilities that are presently unknown, unanticipated and unsuspected, and it further agrees that this release has been negotiated and agreed upon in light of that awareness and it nevertheless hereby intends to release the Houston Released Persons from the Liabilities described in the first sentence of this Section 5.1(a).

(b) Except (i) as provided in Section 5.1(c), (ii) as may be otherwise expressly provided in this Agreement, any other Transaction Document or the Merger Agreement and (iii) for any matter for which any Party is entitled to indemnification or contribution pursuant to Article VI, effective as of the Distribution Time, Houston does hereby, for itself and each other member of the Houston Group, their respective Affiliates, successors and assigns, and all Persons who at any time prior to the Distribution Time have been stockholders, members, partners, directors, managers, officers, agents or employees of any member of the Houston Group (in each case, in their respective capacities as such), remise, release and forever discharge Seattle, the respective members of the Seattle Group, their respective Affiliates, successors and assigns, and all Persons who at any time prior to the Distribution Time have been directors, officers, agents or employees of any member of the Seattle Group (in each case, in their respective capacities as such), and their respective heirs, executors, administrators, successors and assigns (collectively, the “Seattle Released Persons”), from any and all Liabilities whatsoever, whether at Law or in equity (including any right of contribution), whether arising under any Contract, by operation of Law or otherwise, to the extent existing or arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed at or prior to the Distribution Time, including in connection with the transactions and all other activities to implement the Reorganization, the Distribution and any of the other transactions contemplated by this Agreement, the other Transaction Documents or the Merger Agreement. Without limitation, the foregoing release includes a release of any rights and benefits with respect to such Liabilities that Houston and each member of the Houston Group, and their respective Affiliates, successors and assigns, now has or in the future may have conferred upon them by virtue of any statute or common law principle which provides that a general release does not extend to claims which a party does not know or suspect to exist in its favor at the time of executing the release, if knowledge of such claims would have materially affected such party’s settlement with the obligor. In this connection, Houston hereby acknowledges that it is aware that factual matters now unknown to it may have given or may hereafter give rise to Liabilities that are presently unknown, unanticipated and unsuspected, and it further agrees that this release has been negotiated and agreed upon in light of that awareness and it nevertheless hereby intends to release the Seattle Released Persons from the Liabilities described in the first sentence of this Section 5.1(b).

(c) Nothing contained in Section 5.1(a) or Section 5.1(b) shall impair or otherwise impact any right of any Party, and as applicable, any member of such Party’s Group, to enforce this Agreement, any other Transaction Document, the Merger Agreement or any Contracts that are specified in Section 2.8(b), in each case in accordance with its terms. Nothing contained in Section 5.1(a) or Section 5.1(b) shall release any Person from:

(i) any Liability provided in or resulting from (A) any Transaction Document, (B) the Merger Agreement or (C) any Contract among any members of the Houston Group or the Seattle Group that is specified in Section 2.8(b) as not terminating as of the Distribution Time or any other Liability specified in Section 2.8(b) as not terminating as of the Distribution Time;

(ii) any Liability, contingent or otherwise, assumed, transferred, assigned or allocated to the Group of which such Person is a member in accordance with, or any other Liability of any member of any Group under, this Agreement, any other Transaction Document or the Merger Agreement;

(iii) any Liability for the sale, lease, construction or receipt of goods, property or services purchased, obtained or used in the ordinary course of business by a member of one Group from a member of the other Group prior to the Distribution Time;

(iv) any Liability for unpaid amounts for products or services or refunds owing on products or services due on a value-received basis for work done by a member of one Group at the request or on behalf of a member of the other Group;

(v) any Liability provided in or resulting from any Contract that is entered into after the Distribution Time between any Party (and/or a member of such Party’s Group), on the one hand, and the other Party (and/or a member of the other Party’s Group), on the other hand;

(vi) any Liability that the Parties may have with respect to indemnification or contribution pursuant to this Agreement or otherwise for claims brought against the Parties by third Persons, which Liability shall be governed by the provisions of Article VI and, if applicable, the appropriate provisions of the other Transaction Documents or the Merger Agreement; or

(vii) any Liability the release of which would result in the release of any Person other than the Persons released pursuant to Section 5.1(a) and Section 5.1(b).

In addition, nothing contained in Section 5.1(a) shall release: (A) Houston from indemnifying any director, officer or employee of the Seattle Group who was a director, officer or employee of Houston or any of its Affiliates at or prior to the Distribution Time, to the extent such director, officer or employee is or becomes a named defendant in any Action with respect to which he or she was entitled to such indemnification from a member of the Houston Group pursuant to then-existing obligations, it being understood that if the underlying obligation giving rise to such Action is a Seattle Liability, Seattle shall indemnify Houston for such Liability (including Houston’s costs to indemnify the director, officer or employee) in accordance with the provisions set forth in Article VI; and (B) Seattle from indemnifying any director, officer or employee of

the Houston Group who was a director, officer or employee of Houston or any of its Affiliates at or prior to the Distribution Time, to the extent such director, officer or employee is or becomes a named defendant in any Action with respect to which he or she was entitled to such indemnification from a member of the Seattle Group pursuant to then-existing obligations, it being understood that if the underlying obligation giving rise to such Action is an Excluded Liability, Houston shall indemnify Seattle for such Liability (including Seattle’s costs to indemnify the director, officer or employee) in accordance with the provisions set forth in Article VI.

(d) Seattle shall not make, and shall not permit any member of the Seattle Group to make, any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or any indemnification, against Houston or any member of the Houston Group, or any other Person released pursuant to Section 5.1(a), with respect to any Liabilities released pursuant to Section 5.1(a). Houston shall not make, and shall not permit any member of the Houston Group to make, any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or any indemnification, against Seattle or any member of the Seattle Group, or any other Person released pursuant to Section 5.1(b), with respect to any Liabilities released pursuant to Section 5.1(b).

(e) It is the intent of each of Houston and Seattle, by virtue of the provisions of this Section 5.1, to provide for a full and complete release and discharge of all Liabilities existing or arising from all acts and events occurring or failing to occur or alleged to have occurred or to have failed to occur and all conditions existing or alleged to have existed prior to the Distribution Time, between or among Seattle or any member of the Seattle Group, on the one hand, and Houston or any member of the Houston Group, on the other hand, except as expressly set forth in Section 5.1(c). From and after the Distribution Time, each Party shall cause each member of its respective Group to execute and deliver releases reflecting such provisions at the request of the other Party.

ARTICLE VI

INDEMNIFICATION, GUARANTEES AND LITIGATION

Section 6.1 General Indemnification by Seattle. Subject to Section 6.3, Seattle shall indemnify, defend and hold harmless each member of the Houston Group, each of Houston’s Affiliates and each of their respective directors, officers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Houston Indemnified Parties”), from and against any and all Liabilities of the Houston Indemnified Parties relating to, arising out of or resulting from any of the following items (without duplication) (collectively, the “Seattle Indemnification Obligations”):

(a) any Seattle Liability;

(b) the failure of Seattle or any other member of the Seattle Group or any other Person to pay, perform or otherwise promptly discharge any Seattle Liabilities, whether prior to, at or after the Effective Time;

(c) except to the extent it relates to an Excluded Liability, any guarantee, indemnification obligation, surety bond or other credit support agreement, arrangement, commitment or understanding to the extent discharged and performed by any member of the Houston Group for the benefit of any member of the Seattle Group that survives the Distribution Time (other than as a result of breach thereof by any member of the Seattle Group prior to the Effective Time or breach thereof by any member of the Houston Group); and

(d) any breach by any member of the Seattle Group of this Agreement or any of the other Transaction Documents (other than Transaction Documents that expressly contain indemnification provisions, which shall be subject to the indemnification provisions contained therein) after the Effective Time;

provided that in no event shall Seattle have any obligation to indemnify, defend and hold harmless a member of the Houston Group under this Section 6.1 in respect of a Seattle Indemnification Obligation described in Section 6.3 and for which another member of the Seattle Group has an obligation to indemnify, defend and hold harmless a member of the Houston Group pursuant to Section 6.3, and nothing in this Agreement shall be interpreted as giving rise to any such obligation.

Section 6.2 General Indemnification by Houston. Subject to Section 6.3, Houston shall indemnify, defend and hold harmless each member of the Seattle Group, each of Seattle’s Affiliates and each of their respective directors, officers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Seattle Indemnified Parties”), from and against any and all Liabilities of the Seattle Indemnified Parties relating to, arising out of or resulting from any of the following items (without duplication) (collectively, the “Houston Indemnification Obligations”):

(a) any Excluded Liability;

(b) the failure of Houston, any other member of the Houston Group, any member of the Seattle Group or any other Person to pay, perform or otherwise promptly discharge any Excluded Liabilities, whether prior to, at or after the Distribution Time;

(c) except to the extent it relates to a Seattle Liability, any guarantee, indemnification obligation, surety bond or other credit support agreement, arrangement, commitment or understanding to the extent discharged and performed by any member of the Seattle Group for the benefit of any member of the Houston Group that survives the Distribution Time (other than as a result of breach thereof by any member of the Seattle Group after the Effective Time); and

(d) any breach by any member of (i) the Seattle Group prior to the Effective Time or (ii) the Houston Group of this Agreement or any of the other Transaction Documents (other than Transaction Documents that expressly contain indemnification provisions, which shall be subject to the indemnification provisions contained therein);

provided that in no event shall Houston have any obligation to indemnify, defend and hold harmless a member of the Seattle Group under this Section 6.2 in respect of a Houston Indemnification Obligation described in Section 6.3 and for which another member of the Houston Group has an obligation to indemnify, defend and hold harmless a member of the Seattle Group pursuant to Section 6.3, and nothing in this Agreement shall be interpreted as giving rise to any such obligation.

Section 6.3 Transfer Documents Indemnification.

(a) A member of the Seattle Group (other than Seattle) shall directly indemnify, defend and hold harmless a member of the Houston Group or Houston’s Affiliates for any Seattle Indemnification Obligations to the extent expressly set forth in a Transfer Document, provided that such Transfer Document is in a form approved by Miami (which approval shall not be unreasonably withheld, conditioned or delayed).

(b) A member of the Houston Group (other than Houston) shall directly indemnify, defend and hold harmless a member of the Seattle Group or Miami’s Affiliates for any Houston Indemnification Obligations to the extent expressly set forth in a Transfer Document, provided that such Transfer Document is in a form approved by Houston (which approval shall not be unreasonably withheld, conditioned or delayed).

Section 6.4 Contribution. If the indemnification otherwise provided for in Section 6.1, Section 6.2 or Section 6.3 with respect to Liabilities incurred under any securities Laws, is as a matter of applicable Law unavailable to or insufficient to hold harmless an Indemnified Party in respect of such Liabilities for which they would otherwise be indemnified hereunder, then the Indemnifying Party shall contribute to the amount paid or payable by the Indemnified Party in respect of such non-indemnified Liabilities in proportion to the relative fault and benefit of the Indemnifying Party and the Indemnified Party.

Section 6.5 Indemnification Obligations Net of Insurance Proceeds and Other Amounts.

(a) Any Liability subject to indemnification or contribution pursuant to this Article VI will be net of Insurance Proceeds that actually reduce the amount of the Liability. Accordingly, the amount which any Party (an “Indemnifying Party”) is required to pay to any Person entitled to indemnification or contribution under this Article VI (an “Indemnified Party”) will be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnified Party in respect of the related Liability. If an Indemnified Party receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Liability and subsequently receives Insurance Proceeds in respect of such Liability, then the Indemnified Party will pay to the Indemnifying Party an amount equal to such Insurance Proceeds but not exceeding the amount of the Indemnity Payment paid by the Indemnifying Party in respect of such Liability.

(b) An insurer who would otherwise be obligated to pay any claim shall not be relieved of the responsibility with respect thereto or have any subrogation rights with respect thereto solely by virtue of the indemnification provisions of this Agreement. The Indemnified Party shall use its commercially reasonable efforts to seek to collect or recover any third-party Insurance Proceeds to which the Indemnified Party is entitled in connection with any Liability for which the Indemnified Party seeks indemnification pursuant to this Article VI; provided that the Indemnified Party’s ability or inability to collect or recover any such Insurance Proceeds shall not limit the Indemnifying Party’s obligations under this Agreement.

(c) Subject to Section 6.7(c), any indemnity payment under this Article VI shall be increased to take into account any actual Tax cost incurred by the Indemnified Party arising from the receipt or accrual of such indemnity payment and shall be decreased to take into account any actual reduction in Taxes otherwise payable by the Indemnified Party arising from the incurrence of such indemnified Liability.

(d) Notwithstanding anything herein to the contrary, Houston shall not be required to indemnify any Seattle Indemnified Party for any Liability pursuant to Section 6.2 if and to the extent such Liability was reflected in the calculation of the Final Closing Working Capital Adjustment Amount.

Section 6.6 Certain Matters Relating to Indemnification of Third-Party Claims.

(a) Notice of Third-Party Claim. If an Indemnified Party receives written notice that a Person (including any Governmental Authority) that is not a member of the Houston Group or the Seattle Group has asserted any claim or commenced any Action (collectively, a “Third-Party Claim”) that may implicate an Indemnifying Party’s obligation to indemnify pursuant to Section 6.1, Section 6.2 or Section 6.3, or any other Section of this Agreement or any other Transaction Document, the Indemnified Party shall provide the Indemnifying Party written notice thereof as promptly as practicable (and no later than twenty (20) days) after becoming aware of the Third-Party Claim. Such notice shall describe the Third-Party Claim in reasonable detail and include copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third-Party Claim. Notwithstanding the foregoing, the failure of an Indemnified Party to provide notice in accordance with this Section 6.6(a) shall not relieve an Indemnifying Party of its indemnification obligations under this Agreement, except to the extent to which the Indemnifying Party is actually prejudiced by the Indemnified Party’s failure to provide notice in accordance with this Section 6.6(a).

(b) Subrogation. To the extent an indemnification or contribution payment is made by or on behalf of any Indemnifying Party to any Indemnified Party in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnified Party as to any right, defense or claim which such Indemnified Party may have relating to such Third-Party Claim. Subject to Section 6.11, such Indemnified Party shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right, defense or claim.

(c) Settlement. The Indemnifying Party shall not be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third-Party Claims unless (A) such settlement shall not encumber any of the assets of any Indemnified Party or contain any restriction or condition that would apply to such Indemnified Party or to the conduct of that Person’s business (other than the payment of money), (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Party or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Party. No settlement or entry of judgment in respect of any Third-Party Claim shall be consented to by any Indemnified Party without the express written consent of the Indemnifying Party.

Section 6.7 Additional Matters.

(a) Indemnification or contribution payments in respect of any Liabilities for which an Indemnified Party is entitled to indemnification or contribution under this Article VI shall be paid by the Indemnifying Party to the Indemnified Party as such Liabilities are incurred upon demand by the Indemnified Party, including reasonably satisfactory documentation setting forth the basis for the amount of such payment (including where reasonably practicable an itemization of costs and expenses, attorney invoices and supporting documentation from other vendors in the form reviewed by the Indemnified Party, and any applicable orders, judgments or settlement agreements). The indemnity and contribution agreements contained in this Article VI shall remain operative and in full force and effect, regardless of (i) any investigation made by or on behalf of any Indemnified Party or (ii) the knowledge by the Indemnified Party of Liabilities for which it might be entitled to indemnification or contribution under this Agreement.

(b) Any claim for indemnification under this Article VI other than in respect of a Third-Party Claim shall be asserted by written notice given by the Indemnified Party to the Indemnifying Party, provided that the failure to so notify an Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent the Indemnifying Party has been actually prejudiced by such failure. Such Indemnifying Party shall have a period of thirty (30) days after the receipt of such notice to respond thereto. If such Indemnifying Party does not respond within such thirty (30)-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility for such indemnification obligation. If such Indemnifying Party does not respond within such thirty (30)-day period or rejects such claim in whole or in part, such Indemnified Party shall be free to pursue such remedies as may be available to such Indemnified Party pursuant to this Agreement and the other Transaction Documents, as applicable, without prejudice to its continuing rights to pursue indemnification or contribution under this Agreement.

(c) For U.S. federal (and applicable state, local and foreign) income tax purposes, each of Houston and Seattle agrees to treat, and to cause its Affiliates to treat, (i) any payment required by this Agreement (other than payments of interest) as either a contribution by Houston to Seattle or a distribution by Seattle to Houston, as the case may be, occurring immediately prior to the Distribution or as a payment of an assumed or retained Liability; and (ii) any payment of interest as taxable or deductible, as the case may be, to the Party entitled under this Agreement to retain such payment or required under this Agreement to make such payment, in each case, except to the extent otherwise required by applicable Law or a “determination” within the meaning of Section 1313(a) of the Code (or any similar provision of state, local or foreign Law).

Section 6.8 Exclusive Remedy. The indemnification provisions of this Article VI shall be the sole and exclusive remedy of an Indemnified Party for any monetary or compensatory damages or losses for any breach of any representation, warranty, covenant or other claim arising out of or relating to this Agreement or any other Transaction Document (other than Transaction Documents that expressly provide otherwise) or the transactions

contemplated hereby or thereby. In furtherance of the foregoing, each of the Parties hereby waives, for itself and its respective Affiliates, successors and assigns, to the fullest extent permitted under applicable Law, any and all rights, claims or remedies such Person may have against the other Party and its Affiliates, successors and assigns for any monetary or compensatory damages or losses for any breach of any representation, warranty, covenant or other claim arising out of or relating to this Agreement or any other Transaction Document (other than Transaction Documents that expressly contain indemnification provisions, which shall be subject to the indemnification provisions contained therein) or the transactions contemplated hereby or thereby, other than the right to seek indemnity pursuant to this Article VI. For the avoidance of doubt, the foregoing does not affect (a) either Party’s right to seek specific performance under this Agreement as provided in Section 9.11 or to seek resolution of disputes regarding indemnification hereunder as provided in Article VIII and (b) either Party’s right to exercise all of their rights and seek all damages available to them under Law in the event of claims or causes of action arising from fraud or willful misconduct, and (c) any Transaction Document that expressly contains indemnification provisions, which shall be subject to the indemnification provisions contained therein and not this Article VI.

Section 6.9 Survival of Indemnities. The rights and obligations of each of Houston and Seattle and their respective Indemnified Parties under this Article VI shall survive the sale or other transfer by any Party of any Assets or businesses or the assignment by it of any Liabilities.

Section 6.10 Guarantees.

(a) (i) Houston shall (with the reasonable cooperation of the applicable member(s) of the Seattle Group) use its reasonable efforts to have any member(s) of the Seattle Group removed as guarantor of or obligor for and released from any Excluded Liability, and (ii) Seattle shall (with the reasonable cooperation of the applicable member(s) of the Houston Group) use its reasonable efforts to have any member(s) of the Houston Group removed as guarantor of or obligor for and released from any Seattle Liability, including in respect of those guarantees set forth on Schedule 6.10(a)(ii) to the extent that they relate to Seattle Liabilities.

(b) To the extent required to obtain a removal or release from a guarantee described in Section 6.10(a) (a “Guarantee Release”):

(i) of any member of the Houston Group, Seattle or an appropriate member of the Seattle Group shall use commercially reasonable efforts to obtain from the respective beneficiary, in form and substance reasonably satisfactory to Houston, on or prior to the Distribution Time (and, to the extent any guarantee remains outstanding after the Distribution Time, for up to twelve (12) months after the Distribution Time), valid and binding written unconditional releases of Houston and its Affiliates (other than the members of the Seattle Group), as applicable, from any Liability, whether arising before, on or after the Distribution Date, under any guarantee in effect immediately prior to the Distribution Time, which shall be effective as of the Distribution Time, including by providing, as reasonably determined by Seattle, substitute guarantees, furnishing letters of credit, instituting escrow arrangements, posting surety or performance bonds or making other arrangements as the counterparty may reasonably request. Seattle shall coordinate with Houston with respect to its initial contact with such beneficiaries, afford Houston a reasonable opportunity to participate in discussions with such beneficiaries prior to engaging therein, and keep Houston reasonably informed of any discussions with such beneficiaries in which Houston does not participate

(ii) of any member of the Seattle Group, Houston or an appropriate member of the Houston Group shall use commercially reasonable efforts to obtain from the respective beneficiary, in form and substance reasonably satisfactory to Seattle, on or prior to the Distribution Time (and, to the extent any guarantee remains outstanding after the Distribution Time, for up to twelve (12) months after the Distribution Time), valid and binding written unconditional releases of Seattle and its Affiliates (other than the members of the Houston Group), as applicable, from any Liability, whether arising before, on or after the Distribution Date, under any guarantee in effect immediately prior to the Distribution Time, which shall be effective as of the Distribution Time, including by providing, as reasonably determined by Houston, substitute guarantees, furnishing letters of credit, instituting escrow arrangements, posting surety or performance bonds or making other arrangements as the counterparty may reasonably request. Houston shall coordinate with Seattle with respect to its initial contact with such beneficiaries, afford Seattle a reasonable opportunity to participate in discussions with such beneficiaries prior to engaging therein, and keep Seattle reasonably informed of any discussions with such beneficiaries in which Seattle does not participate.

(c) If Houston or Seattle is unable to obtain, or to cause to be obtained, any Guarantee Release, (i) the relevant member of the Houston Group or Seattle Group, as applicable, that has assumed the Liability with respect to such guarantee shall indemnify and hold harmless the guarantor or obligor for any Liability arising from or relating thereto in accordance with the provisions of this Article VI and shall, or shall cause one of its Subsidiaries to, as agent or subcontractor for such guarantor or obligor, pay, perform and discharge fully all the obligations or other Liabilities of such guarantor or obligor thereunder, in each case other than as a result of the breach by the guarantor of its obligations and (ii) with respect to such guarantee, each of Houston and Seattle, on behalf of themselves and the members of their respective Groups, agree not to renew or extend the term of, increase its obligations under or transfer to a third Person, any loan, guarantee, lease, contract or other obligation for which the other Party or any member of the other Party’s Group is or may be liable under such guarantee unless all obligations of the other Party and the other members of the other Party’s Group with respect thereto are thereupon terminated by documentation reasonably satisfactory in form and substance to the other Party.

Section 6.11 Management of Actions. This Section 6.11 shall govern the direction of pending and future Actions in which members of the Seattle Group or the Houston Group are named as parties, but shall not alter the allocation of Liabilities set forth in Article II unless expressly set forth in this Section 6.11.

(a) Management of Seattle Controlled Actions. From and after the Distribution Time, the Seattle Group shall direct the defense or prosecution of any (i) Actions set forth on Schedule 6.11(a) and (ii) any other Actions that constitute only Seattle Liabilities or Seattle Assets (“Seattle Controlled Actions”). If an Action that constitutes solely a Seattle Liability or a Seattle Asset is commenced after the Distribution Time naming a member of the

Houston Group as a party thereto, then Seattle shall use its commercially reasonable efforts to cause such member of the Houston Group to be removed as a party to such Action. No Party shall add the other Party to any Action pending as of or after the Distribution Time without the prior written consent of the other Party.

(b) Management of Houston Controlled Actions. From and after the Distribution Time, the Houston Group shall direct the defense or prosecution of any (i) Actions set forth on Schedule 6.11(b) and (ii) any other Actions that constitute only Excluded Liabilities or Excluded Assets (“Houston Controlled Actions”). If an Action that constitutes solely an Excluded Liability or an Excluded Asset is commenced after the Distribution Time naming a member of the Seattle Group as a party thereto, then Houston shall use its commercially reasonable efforts to cause such member of the Seattle Group to be removed as a party to such Action. No Party shall add the other Party to any Action pending as of or after the Distribution Time without the prior written consent of the other Party.

(c) Management of Actions Naming Both Seattle and Houston. From and after the Distribution Time, in the event that one or more member(s) of the Seattle Group and one or more member(s) of the Houston Group is named in an Action that is neither a Seattle Controlled Action nor a Houston Controlled Action (a “Separate Action”), each of Seattle and Houston shall be entitled to assume their own defense and select counsel of their own choosing to defend their respective interests in such Separate Action. Seattle and Houston shall consult in good faith with each other regarding the management of the defense of each Separate Action.

(d) Management of Mixed Actions. From and after the Distribution Time, (i) any Action set forth on Schedule 6.11(d) and (ii) any Action that constitutes both a Seattle Liability or a Seattle Asset, on the one hand, and an Excluded Liability or an Excluded Asset, on the other hand and that do not constitute a Seattle Controlled Action, Houston Controlled Action or a Separate Action (clauses (i) and (ii), “Mixed Action”) shall be managed by the Party with the greater financial exposure with respect thereto (taking into account the provisions of this Article VI), as determined in good faith by the Parties; provided that any outside counsel employed by a Party managing the Action with respect thereto shall be subject to the approval of other Party (such approval not to be unreasonably withheld, conditioned or delayed); provided, further, that if the Action involves the pursuit of any criminal sanctions or penalties or seeks equitable or injunctive relief against any Party or Subsidiary of a Party, that Party shall be entitled to control the defense of the claim against such Party. The Parties shall reasonably cooperate and consult with each other, and to the extent necessary or advisable, maintain a joint defense in a manner that would preserve for both Parties and their respective Affiliates any attorney-client privilege, joint defense or other privilege with respect to Mixed Actions. The Party managing such Mixed Action shall on a quarterly basis, or if a material development occurs as soon as reasonably practicable thereafter, inform the other Party of the status of and developments relating to any Mixed Action and provide copies of any material document, notices or other materials related to such Mixed Action; provided that the failure to provide any such information shall not be a basis for liability of a Party managing such Mixed Action except and solely to the extent the other Party shall have been actually prejudiced thereby. Notwithstanding anything to the contrary herein, the Parties may jointly retain counsel (in which case the cost of counsel shall be shared equally by the Parties) or retain separate counsel (in which case each Party will bear the cost of its separate counsel) with respect to any Mixed

Action; provided that the Parties shall share discovery and other joint litigation costs in proportion to their respective expected financial exposure (in the case of Actions that constitute both a Seattle Liability and an Excluded Liability) or respective expected financial recovery (in the case of Actions that constitute both a Seattle Asset and an Excluded Asset). In any Mixed Action, each of Houston and Seattle may pursue separate defenses, claims, counterclaims or settlements to those claims relating to the Houston Business or the Seattle Business, respectively; provided that each Party shall in good faith make all reasonable efforts to avoid adverse effects on the other Party. Notwithstanding anything to the contrary herein, (A) if a judgment is obtained with respect to a Mixed Action, the Parties shall endeavor in good faith to allocate the Liabilities in respect of such judgment between them based on the proportion of such Liabilities attributable to the Houston Business and the Seattle Business; and (B) if a recovery is obtained with respect to a Mixed Action, the Parties shall endeavor in good faith to allocate the Assets in respect of such recovery between them based on their respective injuries. A Party that is not named as a defendant in a Mixed Action may elect to become a party to such Mixed Action, and the Party named in such Mixed Action shall reasonably cooperate to have such first Party named in such Mixed Action.

(e) Delegation of Rights of Recovery. To the maximum extent permitted by applicable Law, the rights to recovery of each Party’s Subsidiaries in respect of any past, present or future Action are hereby delegated to such Party. It is the intent of the Parties that the foregoing delegation shall satisfy any Law requiring such delegation to be effected pursuant to a power of attorney or similar instrument. The Parties and their respective Subsidiaries shall execute such further instruments or documents as may be necessary to effect such delegation.

Section 6.12 Settlement of Actions. No Party managing an Action pursuant to Section 6.11 shall settle or compromise such Action (other than Houston with respect to Houston Controlled Actions and Seattle with respect to Seattle Controlled Actions) without the prior written consent of the other Party (not to be unreasonably withheld, conditioned or delayed), except that if the Party managing the Action is indemnifying the other Party, such managing Party may nevertheless settle such Action without such consent so long as such settlement or compromise does not (x) result in any non-monetary remedy or relief being imposed upon any member of the other Party’s Group and (y) contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the other Party’s Group or any of its Affiliates.

ARTICLE VII

OTHER AGREEMENTS

Section 7.1 Further Assurances.

(a) In addition to the actions provided for elsewhere in this Agreement, each of the Parties will cooperate with each other and shall (and will cause their respective Subsidiaries to), prior to, at and for twelve (12) months after the Distribution Time, use commercially reasonable efforts to take, or to cause to be taken, all actions, and to do, or to cause to be done, all things, reasonably necessary on its part under applicable Law or Contractual obligations to consummate and make effective the transactions contemplated by this Agreement and the other Transaction Documents, including the matters set forth on Schedule 7.1(a).

(b) Without limiting the foregoing, prior to, at and for twelve (12) months after the Distribution Time, each Party shall cooperate with the other Party, without any further consideration but from and after the Distribution Time at the expense of the requesting Party, to execute and deliver, or shall cause to be executed and delivered, all instruments, including instruments of conveyance, assignment and transfer, and use commercially reasonable efforts to obtain or make any Approvals or Notifications from or with any Governmental Authority or any other Person under any permit, license, Contract or other instrument, and to take all such other actions as such Party may reasonably be requested to take by any other Party, consistent with the terms of this Agreement and the other Transaction Documents, in order to effectuate the provisions and purposes of this Agreement and the other Transaction Documents and the transfers of the Seattle Assets and the assignment and assumption of the Seattle Liabilities and the other transactions contemplated hereby and thereby. Without limiting the foregoing, each Party will, at the reasonable request and expense of the other Party, take such other actions as may be reasonably necessary to vest in such other Party good and marketable title to the Assets allocated to such other Party under this Agreement or any of the other Transaction Documents, if and to the extent it is practicable to do so.

(c) At or prior to the Distribution Time, Houston and Seattle in their respective capacities as direct and indirect stockholders of their respective Subsidiaries, shall each ratify any actions that are reasonably necessary or desirable to be taken by their respective Subsidiaries, as the case may be, to effectuate the transactions contemplated by this Agreement or any other Transaction Document.

(d) Houston will inform and consult, or procure that its Subsidiaries inform and consult, the relevant employee representative bodies that are required to be informed and/or consulted as a result of or in connection with the transactions contemplated by this Agreement in accordance with applicable Law, and where relevant and necessary the applicable members of the Houston Group or Seattle Group will use commercially reasonable efforts to enter into collective labor agreements in connection with the transactions contemplated by this Agreement.

Section 7.2 Confidentiality.

(a) From and after the Distribution Time, subject to Section 7.2(c) and except as contemplated by this Agreement, any other Transaction Document or the Merger Agreement, Houston shall not, and shall cause its Affiliates and their respective officers, directors, employees, agents and representatives, including attorneys, advisors and other representatives of any Person providing financing (collectively, “Representatives”), not to, directly or indirectly, disclose to any Person, other than Representatives of Houston or its Affiliates who reasonably need to know such information in providing services to any member of the Houston Group, or use or otherwise exploit for its own benefit or for the benefit of any third Person, any Seattle Confidential Information. If any disclosures are made in connection with providing services to any member of the Houston Group under this Agreement, any other Transaction Document or the Merger Agreement, then the Seattle Confidential Information so disclosed shall be used only as required to perform the services. Houston shall use the same degree of care to prevent the

unauthorized use or disclosure of the Seattle Confidential Information by any of its Representatives as it currently uses for its own confidential information, but in no event less than a reasonable standard of care. For purposes of this Section 7.2(a), any Information to the extent relating to the Seattle Business (including any confidential information included in the Seattle Assets or Seattle Contracts) furnished to or otherwise in the possession of any member of the Houston Group as a result of or in connection with the Reorganization or Distribution or the performance of any Transaction Document or the Merger Agreement, irrespective of the form of communication, and all notes, analyses, compilations, forecasts, data, translations, studies, memoranda or other documents prepared by Houston, any member of the Houston Group or their respective officers, directors and Affiliates, to the extent they contain or otherwise reflect such Information, is hereinafter referred to as “Seattle Confidential Information.” Seattle Confidential Information does not include, and there shall be no obligation under this Agreement with respect to, Information that (i) is or becomes generally available to the public, other than as a result of a disclosure by any member of the Houston Group not otherwise permissible under this Agreement, (ii) Houston can demonstrate was or became available to Houston after the Distribution Time from a source other than Seattle or its Affiliates, provided that such source was not known by Houston to be bound by a contractual, legal or fiduciary obligation of confidentiality to Seattle or any member of the Seattle Group with respect to such Information, or (iii) is developed independently by a member of the Houston Group without use or reference to the Seattle Confidential Information.

(b) From and after the Distribution Time, subject to Section 7.2(c) and except as contemplated by this Agreement, any other Transaction Document or the Merger Agreement, Seattle shall not, and shall cause its Affiliates and their respective Representatives not to, directly or indirectly, disclose to any Person, other than Representatives of Seattle or its Affiliates who reasonably need to know such information in providing services to any member of the Seattle Group, or use or otherwise exploit for its own benefit or for the benefit of any third Person, any Houston Confidential Information. If any disclosures are made in connection with providing services to any member of the Seattle Group under this Agreement, any other Transaction Document or the Merger Agreement, then the Houston Confidential Information so disclosed shall be used only as required to perform the services. Seattle shall use the same degree of care to prevent the unauthorized use or disclosure of the Houston Confidential Information by any of its Representatives as it currently uses for its own confidential information, but in no event less than a reasonable standard of care. For purposes of this Section 7.2(b), any Information to the extent relating to the Houston Business furnished to or otherwise in the possession of any member of the Seattle Group as a result of or in connection with the Reorganization or Distribution or the performance of any Transaction Document or the Merger Agreement, irrespective of the form of communication, and all notes, analyses, compilations, forecasts, data, translations, studies, memoranda or other documents prepared by Seattle, any member of the Seattle Group or their respective officers, directors and Affiliates, to the extent they contain or otherwise reflect such Information, is hereinafter referred to as “Houston Confidential Information.” Houston Confidential Information does not include, and there shall be no obligation under this Agreement with respect to, Information that (i) is or becomes generally available to the public, other than as a result of a disclosure by any member of the Seattle Group not otherwise permissible under this Agreement, (ii) Seattle can demonstrate was or became available to Seattle after the Distribution Time from a source other than Houston or its Affiliates; provided that such source was not known by Seattle to be bound by a contractual, legal or fiduciary obligation of confidentiality to Houston or any member of the Houston Group with respect to such Information, or (iii) is developed independently by a member of the Seattle Group without use or reference to the Houston Confidential Information.

(c) If a member of the Houston Group, on the one hand, or a member of the Seattle Group, on the other hand, is requested or required (by oral question, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) by any Governmental Authority or applicable Law to disclose or provide any Seattle Confidential Information or Houston Confidential Information (other than with respect to any such Information furnished pursuant to the provisions of Article IV), as applicable, the Person receiving such request or demand shall use commercially reasonable efforts to provide the other Party with written notice of such request or demand as promptly as practicable so that such other Party shall have an opportunity to seek an appropriate protective order. The Party receiving such request or demand shall take, and cause its Representatives to take, at the requesting Party’s expense, all other reasonable steps necessary to obtain confidential treatment by the recipient. Subject to the foregoing, the Party that received such request or demand may thereafter disclose or provide any Seattle Confidential Information or Houston Confidential Information, as the case may be, to the extent required by such Governmental Authority or applicable Law (as so advised by counsel).

(d) At or prior to the Effective Time, Houston shall assign, or cause to be assigned, to a member of the Seattle Group any rights under non-disclosure and confidentiality agreements to which any member of the Houston Group (which is not a member of the Seattle Group) is a party to the extent restricting the use or disclosure of information of the Seattle Business (including any such agreement entered into in connection with the possible sale of the Seattle Business with any potential purchaser thereof); provided that in the event that such assignment cannot be completed or such agreement also restricts the use or disclosure of information of the Houston Business, Houston shall not be required to assign or cause such assignment, but shall enforce, or shall cause to be enforced, such agreements for the benefit of the Seattle Business as reasonably requested by Seattle at Seattle’s sole cost and expense.

Section 7.3 Insurance Matters.

(a) From and after the Distribution Time, the Seattle Group and the Seattle Business shall cease to be insured by Houston’s Insurance Policies. For the avoidance of doubt, Houston shall retain all rights to control its Insurance Policies, including the right to exhaust, settle, release, commute, buy back or otherwise resolve disputes with respect to any of its Insurance Policies notwithstanding whether any such Insurance Policies apply to any Liabilities of any member of the Seattle Group. Seattle shall be responsible for securing all Insurance Policies that it considers appropriate for the Seattle Business and the operation thereof by the Seattle Group and for promptly providing evidence thereof, as may be required, to third parties under any Contract. Seattle agrees to arrange for its own Insurance Policies with respect to the Seattle Business and the Seattle Group covering all periods. Seattle agrees, on behalf of itself and each member of the Seattle Group, from and after the Distribution Time, not to seek through any means to benefit from and not to assert any right, claim or interest in, to or under, any Insurance Policies of any member of the Houston Group, except as permitted under Section 7.3(b).

(b) For any claim asserted against Seattle or any Seattle Subsidiary after the Distribution Time arising out of an occurrence taking place prior to the Distribution Effective Time (“Post-Closing Claims”), Seattle and each Seattle Subsidiary may access coverage under the Pre-Closing Occurrence-Based Policies to the extent such insurance coverage exists and provides coverage, without cost to Houston and its Subsidiaries (except to the extent acting as insurer under the relevant Pre-Closing Occurrence-Based Policy), for such Post-Closing Claim. Houston and its Subsidiaries (as applicable) shall reasonably cooperate with Seattle and the Seattle Subsidiaries in connection with the tendering of such claims; provided, however, that: (i) Seattle or the Seattle Subsidiaries shall promptly notify Houston of all such Post-Closing Claims; (ii) Seattle shall be responsible for the satisfaction or payment of any applicable retention, deductible or retrospective premium with respect to any Post-Closing Claim and shall reimburse to Houston and its Subsidiaries all reasonable out-of-pocket costs and expenses incurred in connection with such claims. In the event that a Post-Closing Claim relates to the same occurrence for which Houston or its Subsidiaries is seeking coverage under Pre-Closing Occurrence-Based Policies, and the limits under an applicable Pre-Closing Occurrence-Based Policy are not sufficient to fund all covered claims of Seattle or any Seattle Subsidiary (as applicable) and Houston or its Subsidiaries (as applicable), amounts due under such a Pre-Closing Occurrence-Based Policy shall be paid to the respective Persons in proportion to the amounts that otherwise would be due were the limits of liability infinite.

(c) For the avoidance of doubt, (i) any Liabilities involving or related to Post-Closing Claims that are in excess of insurance coverage therefor (net of any retention amounts, recovery costs, retrospective premium, increases in premium and related deductible payable in connection therewith) under applicable Insurance Policies shall not be by virtue of this Section 7.3 the responsibility of Houston or any of its Subsidiaries, and (ii) any amounts paid by an insurer and/or received by any member of the Seattle Group pursuant to this Section 7.3 shall not constitute indemnifiable Liabilities under Article VI, and no member of the Seattle Group shall have any right to indemnification under Article VI with respect to any such amounts.

(d) In no event will a Party have any Liability whatsoever to any member of the other Party’s Group if any Insurance Policy is terminated or otherwise ceases to be in effect for any reason, is unavailable or inadequate to cover any Liability of any member of either Party’s Group for any reason whatsoever or is not renewed or extended. Furthermore, each Party, on behalf of its Group, releases each member of the other Party’s Group with respect to any Liabilities whatsoever as a result of the Insurance Policies and insurance practices of the other Party’s Group as in effect at any time prior to the Distribution Time, including as a result of (i) the level or scope of any insurance, (ii) the creditworthiness of any insurance carrier, (iii) the terms and conditions of any Insurance Policy or (iv) the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim.

Section 7.4 Separation Expenses. Except as otherwise expressly set forth herein, in any other Transaction Document or in the Merger Agreement:

(a) Houston shall pay for all out-of-pocket fees, costs and expenses of Houston, Seattle and any of their Subsidiaries incurred in connection with the Reorganization, the Distribution and the other transactions contemplated by this Agreement and the other Transaction Documents (the “Separation Expenses”) that are incurred prior to the Effective Time, other than the Separation Expenses Miami agrees in writing should be reimbursed by Seattle to Houston (“Reimbursable Expenses”);

(b) Within thirty (30) days after the Distribution Time, Seattle shall pay for all Reimbursable Expenses; and

(c) Each of Houston and Seattle shall pay for all Separation Expenses that are incurred by such Party at or after the Distribution Time.

Section 7.5 Transaction Documents.

(a) Effective on or prior to the Distribution Time, each of Houston and Seattle will, or will cause the applicable members of its Group to, execute and deliver the Transition Services Agreement, the Tax Matters Agreement, the Employee Matters Agreement, the Real Estate Matters Agreement, the Commercial Agreement and the Intellectual Property Matters Agreement. In the event that the provisions of any of the other Transaction Documents conflict with the provisions of this Agreement, the provisions of such other agreement or agreements shall govern with respect to the subject matter addressed thereby to the extent of such conflict. Specifically, the Parties intend that, to the extent set forth in such other Transaction Document and unless otherwise provided therein, (i) the representations, warranties, covenants or agreements between the Parties with respect to Taxes or other Tax matters (including indemnification for Taxes and control of any Tax Contest (as defined in the Tax Matters Agreement)) shall be governed exclusively by the Tax Matters Agreement (provided that, for the avoidance of doubt, the covenants and agreements contained in this Agreement to the extent expressly addressing Taxes or other Tax matters, including Section 2.4(e), Section 2.5(e), Section 2.9(c), Section 2.10(h), (i) and (j), Section 3.1(e), Section 3.3(e), Section 6.5(c) and Section 6.7(c), shall apply in accordance with their terms and nothing in this clause (i) shall be interpreted as affecting the applicability of, or the rights and obligations set forth in, such provisions), (ii) the representations, warranties, covenants or agreements (including agreements as to the allocation of Assets and Liabilities, to the extent addressed therein) between the Parties with respect to employment matters or matters relating to compensation and benefits shall be governed exclusively by the Employee Matters Agreement, (iii) the representations, warranties, covenants or agreements between the Parties with respect to real property matters shall be governed exclusively by the Real Estate Matters Agreement, (iv) the representations, warranties, covenants or agreements between the Parties with respect to the subject matters contemplated by the Commercial Agreement shall be governed exclusively by the Commercial Agreement, and (v) the representations, warranties, covenants or agreements between the Parties with respect to the subject matters contemplated by the Intellectual Property Matters Agreement shall be governed exclusively by the Intellectual Property Matters Agreement; provided that, in each case, the representations, warranties, covenants or agreements referred to in this sentence shall refer to the representations, warranties, covenants or agreements set forth in the applicable Transaction Document.

(b) Prior to the Distribution Time, with respect to any Transaction Document that has not yet been executed, but for which the form of such Transaction Document attached hereto expressly contemplates covenants or other agreements that on their face would be operative prior to the Distribution Time if such Transaction Document had been executed by the

parties thereto as of the date hereof, then notwithstanding the fact that such Transaction Document has not yet been executed by the parties thereto, the Parties agree on behalf of themselves and their respective Affiliates that all such provisions are incorporated herein by reference, mutatis mutandis, and shall be operative prior to the Distribution Time as if such Transaction Document had been executed with respect to such provisions prior to the relevant time.

Section 7.6 Interest on Payments. Except as expressly provided to the contrary in this Agreement or in any other Transaction Document, any amount not paid when due pursuant to this Agreement shall accrue interest at 3% per annum, or, if less, the maximum interest rate allowable under applicable Law in the applicable jurisdiction, compounded quarterly. Notwithstanding the foregoing, at no time shall any Party be obligated pursuant to the foregoing sentence to pay interest at a rate exceeding the maximum interest rate allowable under applicable Law in any applicable jurisdiction. If, by the terms of such foregoing sentence, any Party would otherwise be obligated at any time to pay interest at a rate in excess of the such maximum interest rate in such applicable jurisdiction, the interest payable shall be recomputed and reduced to such maximum interest rate, and the portion of all prior interest payments exceeding such maximum rate shall be applied to payment of the underlying principal amount.

Section 7.7 Permits. The Houston Group shall cooperate with the Seattle Group and take actions that are reasonably necessary to finalize or effectuate the transfer of a permit to the Seattle Group that is designated as a Seattle Asset and that is not already transferred to a member of the Seattle Group as of the Distribution Time. The Seattle Group shall cooperate with the Houston Group and take actions that are reasonably necessary to finalize or effectuate the transfer of a permit to the Houston Group that is designated as an Excluded Asset and that is not already transferred to a member of the Houston Group as of the Distribution Time. The Houston Group and the Seattle Group agree to cooperate with each other regarding the allocation of responsibilities for permits at shared real properties. If any permit cannot be transferred and during the pendency of transferring any permit, the Parties shall use their commercially reasonable efforts to develop and implement arrangements to pass along to the Seattle Group the ability to continue to operate the Seattle Business as presently conducted under the terms of any such permit.

Section 7.8 Wind-down Usage Terms. The provisions of the Wind-down Usage Terms attached hereto as Exhibit G are hereby incorporated herein by this reference.

ARTICLE VIII

DISPUTE RESOLUTION

Section 8.1 General. Except as expressly provided in this Article VIII or in any other Transaction Document, the procedures set forth in this Article VIII shall apply to any dispute, controversy or claim, whether sounding in contract, tort or otherwise, arising out of or relating to this Agreement or any other Transaction Document or the transactions contemplated hereby or thereby (but, for the avoidance of doubt, not including the Merger Agreement or the Merger), between or among any members of the Houston Group, on the one hand, and any members of the Seattle Group, on the other hand (a “Dispute”). Each Party agrees on behalf of itself and the

members of its Group that the procedures set forth in this Article VIII shall be the sole and exclusive remedy (including to enforce a Party’s rights to specific performance and injunctive or other equitable relief pursuant to Section 9.11) in connection with any such Dispute and irrevocably waives any right to commence any Action in or before any Governmental Authority, except as expressly provided in this Article VIII or in any other Transaction Document and except to the extent provided under the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (the “Arbitration Act”), in the case of judicial review of arbitration results or awards. For the avoidance of doubt, any indemnification, limitations on remedies, and limitations on liabilities expressly set forth in the Merger Agreement or any Transaction Document shall be governed by such express provisions and not by this Article VIII. EACH PARTY ON BEHALF OF ITSELF AND EACH MEMBER OF ITS GROUP IRREVOCABLY WAIVES ANY RIGHT TO ANY TRIAL IN A COURT THAT WOULD OTHERWISE HAVE JURISDICTION OVER ANY DISPUTE.

Section 8.2 Negotiation Between Executives. Either Party seeking resolution of any Dispute shall first provide written notice thereof to the other Party (a “Dispute Notice”). Following delivery of such Dispute Notice, the Parties shall attempt in good faith to negotiate a resolution of the Dispute. The negotiations shall be conducted by appropriate executives who have authority to settle the Dispute. All reasonable requests for information made by one Party to the other will be honored. If the Parties are unable for any reason to resolve a Dispute within thirty (30) days after the delivery of the Dispute Notice or if a Party reasonably concludes that the other Party is not willing to negotiate in good faith as contemplated by this Section 8.2, either Party may submit the Dispute to mediation in accordance with Section 8.3.

Section 8.3 Mandatory Mediation. Any Dispute not resolved pursuant to Section 8.2 shall, at the written request of any Party (a “Mediation Request”), be submitted to mandatory mediation in accordance with the International Institute for Conflict Prevention & Resolution (“CPR”) Mediation Procedure (the “Procedure”) then in effect, except as otherwise set forth in this Article VIII. The mediation shall be held in New York, New York or in such other place as the Parties may mutually agree. The Parties shall have twenty (20) days from receipt by a Party of a Mediation Request to agree on a mediator. If no mediator has been agreed upon by the Parties within twenty (20) days of receipt by a Party of a Mediation Request, then any Party may request (on written notice to the other Party), that CPR appoint a mediator in accordance with the Procedure. If the Dispute has not been resolved within the earlier of sixty (60) days of the appointment of a mediator or ninety (90) days after receipt by a Party of a Mediation Request, or within such longer period as the Parties may agree to in writing, either Party may submit the Dispute to binding arbitration in accordance with Section 8.4; provided, however, that if one Party fails to participate in the mediation, the other Party may commence arbitration in accordance with Section 8.4 prior to the expiration of the time periods set forth above.

Section 8.4 Binding Arbitration.

(a) Any Dispute that is not resolved pursuant to Section 8.3 shall, at the written request of any Party (an “Arbitration Demand Notice”), be submitted to binding arbitration in accordance with this Section 8.4(a). If either Party shall deliver an Arbitration Demand Notice, the other Party may itself deliver an Arbitration Demand Notice to such first Party with respect to any related Dispute without the requirement of first delivering a Dispute Notice as contemplated by Section 8.2 or a Mediation Request as contemplated by Section 8.3. Subject to Section 8.5, upon delivery of an Arbitration Demand Notice in accordance with this Section 8.4(a), the Dispute shall be decided in accordance with this Section 8.4(a).

(i) Any arbitration hereunder will be conducted in accordance with CPR Rules for Administered Arbitration then in effect (the “CPR Arbitration Rules”); provided, however, that to the extent that the provisions of this Agreement and the CPR Arbitration Rules conflict, the provisions of this Agreement (including this Article VIII) shall govern. Unless the Parties otherwise agree, any such arbitration shall be conducted by and before three arbitrators selected by the Parties in accordance with the procedures set forth on Schedule 8.4(a)(i). All arbitrators selected pursuant to this Section 8.4(a) shall be neutral and disinterested with respect to each of the Parties and the subject matter of the Dispute.

(ii) The arbitrators shall have full power and authority to determine issues of arbitrability but shall otherwise be limited to interpreting or construing the applicable provisions of this Agreement or other Transaction Document, and will have no authority or power to limit, expand, alter, amend, modify, revoke or suspend any condition or provision of this Agreement or other Transaction Document; it being understood that the arbitrators will have full authority to implement the provisions of this Agreement or other Transaction Document and to fashion appropriate remedies for breaches of this Agreement or other Transaction Document (including interim or permanent injunctive relief or other equitable relief); provided, however, that the arbitrator shall not have (A) any authority in excess of the authority a court having jurisdiction over the Parties and the Dispute would have absent these arbitration provisions or (B) any right or power to award special, indirect, punitive, exemplary, consequential, remote, speculative or similar damages in excess of compensatory damages, except to the extent such damages are expressly permitted by the terms of this Agreement or other Transaction Document, as applicable. It is the intention of the Parties that in rendering a decision the arbitrator will give effect to the applicable provisions of this Agreement and the other Transaction Documents and follow applicable Law.

(iii) If a Party fails or refuses to appear at and participate in an arbitration hearing after due notice, the arbitrators may hear and determine the controversy upon evidence produced by the appearing Party. Any decision rendered under such circumstances shall be as valid and enforceable as if the Parties had appeared and participated fully at all stages.

(iv) Notwithstanding anything to the contrary herein, the fees of the arbitrators and all other arbitration costs shall be borne equally by each Party, except that each Party shall be responsible for its own attorneys’ fees and other costs and expenses, including the costs of witnesses selected by such Party.

(v) Any arbitration award shall be an award with a holding in favor of or against a Party and shall include findings as to facts, issues or conclusions of law, and shall include a statement of the reasoning on which the award rests. The award must also be in adequate form so that a judgment of a court may be entered thereupon. Judgment upon any such arbitration award may be entered in any court having jurisdiction thereof.

(vi) Any arbitration proceedings hereunder shall be held in New York, New York, or in such other place as the Parties may mutually agree.

(vii) The arbitration, including the interpretation of the provisions of this Article VIII only to the extent they relate to the agreement to arbitrate set forth herein and any procedures pursuant thereto, shall be governed by the Arbitration Act. In all other respects, the interpretation of this Agreement shall be governed as set forth in Section 9.2.

Section 8.5 Interim Equitable Relief. Regardless of whether a Dispute Notice, Mediation Request or Arbitration Demand Notice has been delivered, prior to the appointment of an arbitrator pursuant to Section 8.4(a), either Party may seek interim equitable relief from any arbitrator set forth on Schedule 8.4(a)(i) in order to preserve and protect the status quo. Such arbitrator shall have the authority to grant any interim equitable relief that a court having jurisdiction over the Parties and the Dispute would have authority to grant. Neither the request for, nor the grant or denial of, any such relief shall be deemed a waiver of the dispute resolution obligations set forth herein. The Parties agree to be bound by any interim equitable relief granted in accordance with this Section 8.5, and judgment upon any such award of interim equitable relief may be entered in any court having jurisdiction thereof.

Section 8.6 Confidentiality of Negotiation, Mediation and Arbitration. Except as required by applicable Law, each Party shall hold, and shall cause its respective Subsidiaries and Representatives to hold, all dispute resolution proceedings pursuant to this Article VIII (including the existence, content and results thereof) in confidence (other than disclosure to its advisors, or to the extent disclosure is otherwise permitted pursuant to Section 7.2, or as may be required in order to enforce any agreement or award) and shall request that the mediator or arbitrators, as applicable, comply with such confidentiality requirement. The Parties also agree to jointly request that any court in which a judgment upon any award hereunder is entered or enforced maintain all filings in connection therewith under seal, and to oppose any third-party request for access to sealed filings. Dispute resolution proceedings pursuant to Section 8.2, Section 8.3, Section 8.4(a) and Section 8.5 shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence.

Section 8.7 Limitation on Certain Damages. Notwithstanding anything to the contrary in this Agreement, and except with respect to any breach of any covenant or agreement contained in Section 7.2, neither Party nor its Affiliates shall be liable under this Agreement or any other Transaction Document (except as expressly provided in any such other Transaction Document) to the other Party for any special, indirect, punitive, exemplary, consequential (except to the extent such exemplary or consequential damages are the reasonably foreseeable consequence of the relevant breach), remote, speculative or similar damages (including loss of future profits, revenue or income, diminution in value or loss of business reputation or opportunity), other than any such liability to the extent awarded by a court of competent jurisdiction in connection with a Third-Party Claim.

Section 8.8 No Effect on Other Commitments. Unless otherwise agreed in writing, the Parties will continue to honor all commitments under this Agreement and each other Transaction Document during the course of resolution of a Dispute pursuant to the provisions of this Article VIII with respect to all matters not subject to such Dispute.

ARTICLE IX

MISCELLANEOUS

Section 9.1 Corporate Power; Facsimile Signatures.

(a) Houston represents on behalf of itself and on behalf of other members of the Houston Group, and Seattle represents on behalf of itself and on behalf of other members of the Seattle Group, as follows:

(i) each such Person has the requisite corporate power and authority and has taken all corporate action necessary in order to execute, deliver and perform this Agreement and each other Transaction Document to which it is a Party and to consummate the transactions contemplated hereby and thereby; and

(ii) this Agreement and each Transaction Document to which it is a Party has been duly executed and delivered by it and constitutes a valid and binding agreement of it enforceable in accordance with the terms thereof.

(b) Each Party acknowledges that it and each other Party is executing certain of the Transaction Documents by facsimile, stamp or mechanical signature, and that delivery of an executed counterpart of a signature page to this Agreement or any other Transaction Document (whether executed by manual, stamp or mechanical signature) by facsimile or by email in portable document format (.pdf) shall be effective as delivery of such executed counterpart of this Agreement or any other Transaction Document. Each Party expressly adopts and confirms each such facsimile, stamp or mechanical signature (regardless of whether delivered in person, by mail, by courier, by facsimile or by email in .pdf) made in its respective name as if it were a manual signature delivered in person, agrees that it will not assert that any such signature or delivery is not adequate to bind such Party to the same extent as if it were signed manually and delivered in person and agrees that, at the reasonable request of the other Party at any time, it will as promptly as reasonably practicable cause each such Transaction Document to be manually executed (any such execution to be as of the date of the initial date thereof) and delivered in person, by mail or by courier.

(c) Notwithstanding any provision of this Agreement or any other Transaction Document, neither Houston nor Seattle shall be required to take or omit to take any act that would violate its fiduciary duties to any minority stockholders of any non-wholly owned Subsidiary of Houston or Seattle, as the case may be (it being understood that directors’ qualifying shares or similar interests will be disregarded for purposes of determining whether a Subsidiary is wholly owned).

Section 9.2 Governing Law; Submission to Jurisdiction; Waiver of Trial.

(a) This Agreement and, unless expressly provided therein, each other Transaction Document, shall be governed by and construed and interpreted in accordance with the Laws of the State of Delaware without giving effect to the principles of conflicts of law thereof.

(b) Subject to Article VIII, each of Houston and Seattle, on behalf of itself and the members of its Group, hereby irrevocably (i) agrees that any Dispute shall be subject to the exclusive jurisdiction of the state and federal courts located in the State of Delaware, (ii) waives any claims of forum non conveniens and agrees to submit to the jurisdiction of such courts and (iii) agrees that service of any process, summons, notice or document by U.S. registered mail to its respective address set forth in Section 9.5 shall be effective service of process for any litigation brought against it in any such court or for the taking of any other acts as may be necessary or appropriate in order to effectuate any judgment of said courts.

Section 9.3 Survival of Covenants. Except as expressly set forth in this Agreement, any other Transaction Document or the Merger Agreement, the covenants and other agreements contained in this Agreement and each other Transaction Document, and liability for the breach of any obligations contained herein or therein, shall survive each of the Reorganization, the Distribution and the Merger and shall remain in full force and effect.

Section 9.4 Waivers of Default. A waiver by a Party of any default by the other Party of any provision of this Agreement or any other Transaction Document shall not be deemed a waiver by the waiving Party of any subsequent or other default. No failure or delay by a Party in exercising any right, power or privilege under this Agreement or any other Transaction Document shall operate as a waiver thereof, nor shall a single or partial exercise thereof prejudice any other or further exercise thereof or the exercise of any other right, power or privilege. No waiver by any Party of any provision of this Agreement shall be effective unless explicitly set forth in writing and executed by the Party so waiving. In addition, unless the Merger Agreement shall have been terminated in accordance with its terms, any such waiver by Seattle shall be subject to the written consent of Miami, which consent shall not be unreasonably withheld, conditioned or delayed.

Section 9.5 Notices. All notices, requests, claims, demands and other communications under this Agreement and, to the extent applicable and unless otherwise provided therein, under each of the other Transaction Documents, shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service, by email, by facsimile with receipt confirmed (followed by delivery of an original via overnight courier service) or by registered or certified mail (postage prepaid, return receipt requested) to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 9.5):

If to Houston or, on or prior to the Distribution Date, to Seattle, then to:

Hewlett Packard Enterprise Company

3000 Hanover Street

Palo Alto, California 94304

Attention: General Counsel

Facsimile: (650) 857-2012

with a copy to:

Wachtell, Lipton, Rosen & Katz

51 West 52nd Street

New York, New York 10019

Attention: Andrew R. Brownstein

Benjamin M. Roth

Facsimile: (212) 403-2000

Email: ***@*** & ***@***

and, in the case of Seattle, with a copy to:

Micro Focus International plc

The Lawn, 22-30 Old Bath Road

Berkshire, RG14 1QN

United Kingdom

Attention: General Counsel

Facsimile: +44 1635 33966

Email: ***@***

with a copy (which shall not constitute notice) to:

Kirkland & Ellis LLP

601 Lexington Avenue

New York, New York 10022

Attention: David Fox, William B. Sorabella & David B. Feirstein

Facsimile No.: (212) ###-###-####

Email: ***@***, ***@*** &

***@***

and

Travers Smith LLP

10 Snow Hill

London EC1A 2AL

Attention: Spencer Summerfield & Jon Reddington

Facsimile No.: +44 20 7295 3500

Email: ***@*** &

***@***

If, following the Distribution Date, to Seattle, then to:

c/o Micro Focus International plc

The Lawn, 22-30 Old Bath Road

Berkshire, RG14 1QN

United Kingdom

Attention: General Counsel

Facsimile: +44 1635 33966

Email: ***@***

with a copy (which shall not constitute notice) to:

Kirkland & Ellis LLP

601 Lexington Avenue

New York, New York 10022

Attention: David Fox, William B. Sorabella & David B. Feirstein

Facsimile No.: (212) ###-###-####

Email: ***@***, ***@*** &

***@***

and

Travers Smith LLP

10 Snow Hill

London EC1A 2AL

Attention: Spencer Summerfield & Jon Reddington

Facsimile No.: +44 20 7295 3500

Email: ***@*** &

***@***

Section 9.6 Termination. This Agreement shall terminate simultaneously with the valid termination of the Merger Agreement prior to the Distribution. Except for a termination described in the immediately preceding sentence, prior to the Distribution Time, Seattle shall not agree to terminate this Agreement without the prior written consent of Miami, which consent shall not be unreasonably withheld, conditioned or delayed. After the Distribution Time, this Agreement may not be terminated except by an agreement in writing signed by each of the Parties. In the event of such termination, this Agreement shall become void and no Party, or any of its officers and directors, shall have any liability to any Person by reason of this Agreement.

Section 9.7 Severability. If any provision of this Agreement or any other Transaction Document or the application thereof to any Person or circumstance is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions hereof or thereof, or the application of such provision to Persons or circumstances or in jurisdictions other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. Upon such determination, the Parties shall negotiate in good faith in an effort to agree upon such a suitable and equitable provision to effect the original intent of the Parties.

Section 9.8 Entire Agreement. This Agreement, the other Transaction Documents, the Merger Agreement and the schedules and exhibits hereto and thereto constitute the entire agreement of the Parties with respect to the subject matter of this Agreement and supersede all prior agreements and undertakings, both written and oral, between or on behalf of the Parties with respect to the subject matter of this Agreement.

Section 9.9 Assignment; No Third-Party Beneficiaries. This Agreement shall not be assigned by any Party without the prior written consent of the other Party (provided that prior to the Distribution Time, Seattle shall not assign this Agreement without the prior written consent of Miami, which consent shall not be unreasonably withheld, conditioned or delayed), except that a Party may assign any or all of its rights and obligations under this Agreement in connection with a sale or disposition of any assets or entities or lines of business of such Party or in connection with a merger transaction in which such Party is not the surviving entity; provided, however, that in each case, no such assignment shall release such Party from any liability or obligation under this Agreement. The provisions of this Agreement and the obligations and rights under this Agreement shall be binding upon, inure to the benefit of and be enforceable by (and against) the Parties and their respective successors and permitted transferees and assigns. Except as provided in Article VI with respect to Indemnified Parties, this Agreement is for the sole benefit of the parties to this Agreement and members of their respective Groups and their permitted successors and assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement; provided, however, that Miami shall be a third-party beneficiary of the rights of Miami as provided in this Agreement and the other Transaction Documents.

Section 9.10 Public Announcements. From and after the Distribution Time, Houston and Seattle shall consult with each other before issuing, and give each other the opportunity to review and comment upon, any press release or other public statement that relates to the transactions contemplated by this Agreement, the other Transaction Documents or the Merger Agreement, and shall not issue any such press release or make any such public statement prior to such consultation, except as may be required by applicable Law, court process or by obligations pursuant to any listing agreement with any national securities exchange or national securities quotation system.

Section 9.11 Specific Performance. Subject to Article VIII, in the event of any actual or threatened default in, or breach of, any of the terms, conditions and provisions of this Agreement or any other Transaction Document (except as otherwise provided therein), the party or parties who are, or are to be, thereby aggrieved shall have the right to specific performance and injunctive or other equitable relief (on an interim or permanent basis) of their rights under this Agreement or such other Transaction Document. The Parties agree that the remedies at law for any breach or threatened breach, including monetary damages, may be inadequate compensation for any loss and that any defense in any action for specific performance that a remedy at law would be adequate is waived. Any requirements for the securing or posting of any bond with such remedy are waived by each of the Parties. Nothing in this section is intended to limit or waive the aggrieved Party’s ability to pursue any other remedy to which it is entitled.

Section 9.12 Amendment. No provision of this Agreement or any other Transaction Document (except as otherwise provided therein) may be amended or modified except by a written instrument signed by each of the parties hereto or thereto, as applicable. In addition, unless the Merger Agreement shall have been terminated in accordance with its terms, any such amendment or modification shall be subject to the written consent of Miami, which consent shall not be unreasonably withheld, conditioned or delayed.

Section 9.13 Rules of Construction. Interpretation of this Agreement shall be governed by the following rules of construction: (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 of 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; (g) references to “written” or “in writing” include in electronic form; (h) provisions shall apply, when appropriate, to successive events and transactions; (i) the table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement; (j) Houston and Seattle have each participated in the negotiation and drafting of this Agreement and 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 either Party by virtue of the authorship of any of the provisions in this Agreement or any interim drafts of this Agreement; and (k) a reference to any Person includes such Person’s successors and permitted assigns.

Section 9.14 Counterparts. This Agreement may be executed in one or more counterparts, and by each Party in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.

Section 9.15 Performance. Houston will cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth in this Agreement or in any other Transaction Document to be performed by any member of the Houston Group. Seattle will cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth in this Agreement or in any other Transaction Document to be performed by any member of the Seattle Group. Each Party (including its permitted successors and assigns) further agrees that it will (a) give timely notice of the terms, conditions and continuing obligations contained in this Section 9.16 to all of the other members of its Group, and (b) cause all of the other members of its Group not to take any action inconsistent with such Party’s obligations under this Agreement, any other Transaction Document or the transactions contemplated hereby or thereby.

[The remainder of this page is intentionally left blank.]

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the date first written above by their respective duly authorized officers.


HEWLETT PACKARD ENTERPRISE COMPANY

By:	/s/ Rishi Varma
	Name:	Rishi Varma
	Title:	Senior Vice President, Deputy General Counsel and Assistant Secretary


SEATTLE SPINCO, INC.

By:	/s/ Tim Stonesifer
	Name:	Tim Stonesifer
	Title:	Chief Financial Officer

[Signature Page to Separation and Distribution Agreement]