8-K

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934

Date of Report (Date of earliest event reported) February 6, 2014

Sizmek Inc.

(Exact name of registrant as specified in its charter)

Delaware	001-36219	37-1744624
(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification No.)

750 West John Carpenter Freeway, Suite 401 Irving, Texas	75039
(Address of principal executive offices)	(Zip Code)

Registrant’s telephone number, including area code (972) 581-2000

N/A

(Former name or former address, if changed since last report.)

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

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

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

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

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

Item 1.01.             Entry into a Material Definitive Agreement

Effective as of 8:00 a.m. Eastern Time on February 7, 2014 (the “Closing Date”), Digital Generation, Inc. (“DG”) completed the previously announced spin-off and merger transaction with Sizmek Inc. (the “Company” and “we”) pursuant to the Agreement and Plan of Merger, dated as of August 12, 2013 (the “Merger Agreement”), by and among Extreme Reach Inc. (“Extreme Reach”), Dawn Blackhawk Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of Extreme Reach (“Acquisition Sub”), and DG. On February 7, 2014, in connection with the spin-off and merger transaction, the Company entered into certain agreements with DG to (i) effect our legal and structural separation; (ii) govern the relationship between us and DG up to and after the completion of the spin-off and merger transaction; and (iii) allocate between us and DG various assets, liabilities and obligations, including, among other things, employee benefits, intellectual property and tax-related assets and liabilities.

Separation and Distribution Agreement

We entered into a separation and distribution agreement with DG pursuant to which DG contributed all of the assets and liabilities of its online business, together will all of DG’s cash and working capital, to the Company.  In addition, the parties agreed that the Company would receive the benefit of all current assets of DG and would be responsible for all liabilities of DG, in each case, generated by DG prior to 11:59 p.m. Central Time on the Closing Date.  In accordance with the separation and distribution agreement, and immediately prior to the effective time of the merger of Acquisition Sub into DG on the Closing Date, all of the shares of common stock of the Company were distributed to DG’s existing stockholders in the form of a partial redemption of the Company’s common stock owned by such stockholders.

Tax Matters Agreement

We entered into a tax matters agreement with DG that will govern our and DG’s rights, responsibilities and obligations after the spin-off and merger transaction with respect to tax liabilities and benefits, tax attributes, tax contests and other tax matters regarding income taxes, other taxes and related tax returns. The tax matters agreement specifies that we bear responsibility for all taxes incurred by DG and its subsidiaries prior to the spin-off and merger transaction (including any corporate level taxes incurred as a result of the spin-off and merger transaction), and for all taxes incurred by us or our subsidiaries for any taxable period.  We have agreed to indemnify DG against any amounts for which DG is not responsible.

Employee Matters Agreement

We entered into an employee matters agreement with DG that addresses employment, compensation and benefits matters for all U.S. and international employees and contractors. Except as otherwise provided in the transition services agreement, and subject to certain variations and exceptions, in connection with the spin-off, we retained or assumed all employment, compensation and benefits liabilities arising prior to the effective time of the merger and those liabilities for those employees and contractors who will continue to be employed by or providing services to us following the spin-off.  We also assumed the sponsorship of all of DG’s employee benefit plans, except to the extent prohibited by applicable law, and those employees who will continue employment with DG following the closing ceased to participate in those plans as of the spin-off. Except as set forth in the transition services agreement, and subject to certain variations and exceptions, DG and its affiliates assumed all employment-related liabilities which arise after the effective time of the merger for employees and contractors who are continuing employment or service with DG following the closing.

Transition Services Agreement

We entered into a transition services agreement with DG pursuant to which we and DG will provide each other specified services on a transitional basis to help ensure an orderly transition following the spin-off and merger transaction. These services include information technology, financing and accounting, facilities, human resources, intellectual property and (with respect to services provided by us to DG) satellite antenna services.  In general, such services will be provided without cost to other party, with the exception of continued use of facilities (which are generally charged at cost) and accounts receivable collected by DG on our behalf (which will be subject to a 0.5%

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fee on the aggregate amount of such receivables delivered by DG to us during the immediately preceding calendar month).  The term of each services varies, but in no event is longer than 270 days after the Closing Date.

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

As previously disclosed in a Current Report on Form 8-K filed February 7, 2014, each of Scott K. Ginsburg, Xavier A. Gutierrez, John R. Harris, Adam Klein, Cecil H. Moore Jr., Neil H. Nguyen and Stephen E. Recht is a member of the Company’s Board of Directors.  Mr. Recht was elected to the Board of Directors effective February 5, 2014.

Item 9.01              Financial Statements and Exhibits

(d)           Exhibits

Exhibit	Description of Exhibit
2.1	Separation and Distribution Agreement by and between Digital Generation, Inc. and Sizmek Inc.
10.1	Transition Services Agreement by and between Digital Generation, Inc. and Sizmek Inc.
10.2	Tax Matters Agreement by and between Digital Generation, Inc. and Sizmek Inc.
10.3	Employee Matters Agreement by and between Digital Generation, Inc. and Sizmek Inc.

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SIGNATURES

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

		SIZMEK INC.
Date: February 11, 2014	By:	/s/ Sean N. Markowitz
		Name: Sean N. Markowitz
		Title: General Counsel and Corporate Secretary

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EXHIBIT INDEX

Exhibit	Description of Exhibit
2.1	Separation and Distribution Agreement by and between Digital Generation, Inc. and Sizmek Inc.
10.1	Transition Services Agreement by and between Digital Generation, Inc. and Sizmek Inc.
10.2	Tax Matters Agreement by and between Digital Generation, Inc. and Sizmek Inc.
10.3	Employee Matters Agreement by and between Digital Generation, Inc. and Sizmek Inc.

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EX-2.1

Exhibit 2.1

Execution Version

SEPARATION AND REDEMPTION AGREEMENT

By and between

DIGITAL GENERATION, INC.

and

SIZMEK INC.

Dated as of February 6, 2014

TABLE OF CONTENTS

ARTICLE I

DEFINITIONS

ARTICLE II

THE SEPARATION

Section 2.1	Timing and Conditions	2
Section 2.2	Contributions	2
Section 2.3	Assumption	5
Section 2.4	Governmental Approvals; Consents	6
Section 2.5	Deferred Transfers	6
Section 2.6	Termination of Agreements	7
Section 2.7	Disclaimer of Representations and Warranties	7
ARTICLE III
THE REDEMPTION
Section 3.1	The Redemption	8
Section 3.2	Actions in Connection with the Redemption	8
Section 3.3	Conditions to Redemption	9
Section 3.4	Fractional Shares	10
ARTICLE IV INSURANCE
Section 4.1	Policies and Rights Included Within the SpinCo Assets	11
Section 4.2	Post-Redemption Date Claims	11
Section 4.3	Insured Liabilities	11
ARTICLE V
RELEASES AND INDEMNIFICATION
Section 5.1	Release of Pre-Redemption Claims	12
Section 5.2	Indemnification by SpinCo	13
Section 5.3	Indemnification by DG	14
Section 5.4	Reduction for Insurance Proceeds and Other Recoveries	14
Section 5.5	Procedures For Indemnification of Third Party Claims	15
Section 5.6	Additional Matters	16
Section 5.7	Survival of Indemnities	17

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ARTICLE VI
CERTAIN COVENANTS AND OTHER AGREEMENTS OF THE PARTIES
Section 6.1	Restriction on Employee Solicitation and Hiring	17
Section 6.2	Marks	18
Section 6.3	Merger Agreement	18
Section 6.4	Representations	18
Section 6.5	Section 6.5 Non-Competition	19
ARTICLE VII
CONFIDENTIALITY
Section 7.1	Confidentiality	20
Section 7.2	Protective Arrangements	21
ARTICLE VIII
ACCESS TO INFORMATION AND SERVICES
Section 8.1	Provision of Corporate Records	22
Section 8.2	Access to Information	22
Section 8.3	Production of Witnesses	23
Section 8.4	Reimbursement	23
Section 8.5	Privileged Matters	23
ARTICLE IX
DISPUTE RESOLUTION
Section 9.1	Disputes	25
Section 9.2	Arbitration	25
Section 9.3	Arbitration Procedure	25
Section 9.4	Confidentiality	27
ARTICLE X
FURTHER ASSURANCES
Section 10.1	Further Assurances	27
Section 10.2	Savings Clause	28
Section 10.3	Schedules	28

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ARTICLE XI
TERMINATION
Section 11.1	Termination	28
ARTICLE XII
MISCELLANEOUS
Section 12.1	Counterparts; Entire Agreement	28
Section 12.2	Governing Law	29
Section 12.3	Tax Matters	29
Section 12.4	Assignability	29
Section 12.5	Third Party Beneficiaries	29
Section 12.6	Notices	30
Section 12.7	Severability	31
Section 12.8	Publicity	31
Section 12.9	Expenses	31
Section 12.10	Headings	31
Section 12.11	Survival of Covenants	31
Section 12.12	Waivers of Default	32
Section 12.13	Specific Performance	32
Section 12.14	Amendments	32
Section 12.15	Waiver of Jury Trial	32

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SEPARATION AND REDEMPTION AGREEMENT

THIS SEPARATION AND REDEMPTION AGREEMENT (including all Appendices and Schedules hereto, this “Agreement”), dated as of February 6, 2014, is entered into by and between Digital Generation, Inc., a Delaware corporation (“DG”), and Sizmek Inc., a Delaware corporation (“SpinCo”) (each a “Party” and collectively, the “Parties”).  Capitalized terms used herein shall have the meanings ascribed to them in Article I.

R E C I T A L S

WHEREAS, DG has entered into that Agreement and Plan of Merger dated as of August 12, 2013 by and among Extreme Reach, Inc., a Delaware corporation (“Buyer”), Dawn Blackhawk Acquisition Corp., a Delaware corporation (“Acquisition Sub”) and DG (the “Merger Agreement”) pursuant to which Acquisition Sub shall merge with and into DG (the “Merger”) with DG being the Surviving Corporation in the Merger, subject to the terms and conditions set forth in the Merger Agreement;

WHEREAS, DG’s operations are divided into two reporting segments for purposes of reporting its financial condition and results of operations under GAAP, notably its Online Business and its Television Business;

WHEREAS, Buyer and Acquisition Sub desire to acquire from DG, and DG desires to transfer to Buyer and Acquisition Sub, only the Television Business under the terms and conditions of the Merger Agreement as more fully described in this Agreement and the Ancillary Agreements;

WHEREAS, following the separation of the Online Business (which will be conveyed to and vest in SpinCo) and the Television Business (which will remain with DG and its Subsidiaries that are not being conveyed to SpinCo hereunder) in accordance with this Agreement (collectively, the “Separation”), and as a condition to the Merger, immediately prior to the Effective Time (as defined below) of the Merger, each share of DG Common Stock (as defined below) then issued and outstanding will be partially redeemed (the “Redemption”) by conversion into the right to receive one (1) share of common stock, par value $0.001 per share, of SpinCo (such shares, the “SpinCo Common Stock”); and

WHEREAS, DG and SpinCo intend in this Agreement and the Ancillary Agreements to set forth the principal corporate and commercial arrangements between the Parties with respect to the Separation and the Redemption.

NOW, THEREFORE, in consideration of the foregoing and the terms, conditions, covenants and provisions of this Agreement, DG and SpinCo mutually covenant and agree as follows:

ARTICLE I

DEFINITIONS

Capitalized terms used in this Agreement shall have the meanings ascribed to them in Appendix A or, if not defined in Appendix A, shall have the meanings set forth in the Merger Agreement.

ARTICLE II

THE SEPARATION

Section 2.1Timing and Conditions.  The Separation shall occur only after all the conditions to the Merger as set forth in Article VII of the Merger Agreement have been satisfied or waived in accordance with their terms, other than (a) the condition set forth in Section 7.1(d) of the Merger Agreement with respect to the completion of the Spin-Off Transaction and (b) those conditions that by the nature of their terms are to be satisfied at the Closing.  The Spin-Off Transaction shall occur following the consummation of the Separation, as set forth in Article III below, and immediately prior to the Effective Time of the Merger under the Merger Agreement. Notwithstanding anything in this Agreement to the contrary, SpinCo shall (x) receive the benefit of all current assets (including cash, receivables and work in process) of DG and shall be responsible for all liabilities of DG, in each case, generated by DG prior to 11:59 pm Central time on February 7, 2014 and (y) have access to and maintain control over all accounts, including bank accounts and lock box accounts, of the Company until 11:59 pm Central time on February 7, 2014

Section 2.2Contributions.  In order to effectuate the Separation, DG shall contribute to, assign, transfer and convey to SpinCo (a) all equity securities of the SpinCo Subsidiaries specified in Section 2.2.1 and (b) by instruments of title or transfer, the assets specified (and subject to the terms and conditions set forth) in (i) Sections 2.2.2 (Unicast Assets), 2.2.3 (Corporate Assets), 2.2.4 (Contracts), 2.2.5 (Real Property Leases), 2.2.6 (Company Working Capital), 2.2.7 (Intellectual Property), 2.2.9 (Books and Records), 2.2.10 (Authorizations), and 2.2.11 (Insurance), (ii) solely to the extent such are primarily used in or relate to the Online Business and subject to the Transition Services Agreement, Section 2.2.8 (Software) and (iii) Section 2.2.13 (Goodwill) (collectively, the “SpinCo Assets”):

Section 2.2.1Equity Securities of Online Subsidiaries.  All of the outstanding shares of capital stock, membership interests and other equity interests, as applicable of each of the following direct Subsidiaries of DG (collectively the “SpinCo Subsidiaries”): MediaMind Technologies, Inc., a Delaware corporation; EyeWonder LLC, a Delaware limited liability company; Chors GmbH, a German corporation; Unicast EMEA, Ltd., a England and Wales limited company; and Viewpoint Japan Co. Ltd., a Japanese limited company.  Schedule 2.2.1 sets forth a chart of each Subsidiary of the SpinCo Subsidiaries that will be indirect Subsidiaries of SpinCo following the Separation, and a chart of each direct and indirect Subsidiary that will remain a Subsidiary of DG immediately following the Separation;

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Section 2.2.2Unicast Assets.  All tangible assets described on Schedule 2.2.2, which assets are primarily used in the Unicast offerings of the Online Business, and all tangible assets that are used solely in the Unicast offerings of the Online business (whether or not set forth on Schedule 2.2.2);

Section 2.2.3Corporate Assets.  All tangible assets described on Schedule 2.2.3, which assets relate to corporate overhead and general administration of DG and that are not used exclusively in the Television Business, and all tangible assets that relate to or are used exclusively in the Online Business (whether or not set forth on Schedule 2.2.3);

Section 2.2.4Contracts.  Except as set forth on Schedule 2.2.4, all contracts and agreements, relationships and open purchase orders, in each case, relating (in whole or in part) to the Online Business, including all contracts, agreements and open purchase orders, in each case, relating to the corporate overhead and general administration of DG that are not used exclusively in the Television Business;

Section 2.2.5Real Property Leases.  The real property leases identified on Schedule 2.2.5 under the heading “Online Business”.  Schedule 2.2.5 also identifies all real property leases to which DG or a member of the DG Group is a party that will remain with DG or a member of the DG Group following the Separation under the heading “TV Business”;

Section 2.2.6Company Working Capital; Bank Accounts.  (a) All Company Working Capital (other than prepaid expenses of DG, which shall be retained by DG), as reflected in the chart of accounts set forth on Schedule 2.2.6 and designated as being contributed to or assumed by SpinCo, including all cash and cash equivalents of the Company and its Subsidiaries and (b) each of the bank accounts set forth in Schedule 2.2.6; provided, that with respect to all bank accounts and lockboxes retained by DG following the Closing (for the avoidance of doubt, excluding the bank accounts set forth in Schedule 2.2.6), DG shall (i) provide on a real time, uninterrupted basis read-only access to Sizmek to all such accounts and lockboxes, (ii) unless otherwise agreed by SpinCo in writing, maintain and keep all such bank accounts open and provide SpinCo access to such accounts in accordance herewith until the collection of all outstanding DG and Online accounts receivable that exists on 11:59 pm on February 7, 2014, and (iii) permit SpinCo to conduct, or cause to be conducted, not less frequently than once per month, an audit of such accounts and lockboxes;

Section 2.2.7Intellectual Property.  Subject to any license rights granted in the Transition Services Agreement, the intellectual property described on Schedule 2.2.7, which is used primarily in the operation of the Online Business, all inventions and trade secrets arising under common law and all unregistered copyrights, in each case, that are used exclusively in the Online Business, and all intellectual property developed under or in connection with the Master Software Development and Services Agreement between Digital Generation, Inc. and ATD Group, LLC entered into on or around February 28, 2013 (including, but not limited to Statement of Work No. 2013-01), the Software License, Development and Services Agreement between Digital Generation, Inc. and Nativ Limited dated June 26, 2013 or the Master Services Agreement between Digital Generation, Inc. and SoftLayer Technologies, Inc.;

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Section 2.2.8Software.  All right, title and interest in (i) software used primarily in the Online Business, (ii) subject to the Transition Services Agreement, all software used in general corporate administration that is not used exclusively in the Television Business, and (iii) the modules listed on Schedule 2.2.8;

Section 2.2.9Books and Records.  (a) All accounting and other records, ledgers and files, whether written or in electronic form, that are used exclusively in the Online Business (provided that one copy of all such records may be retained by DG for archival purposes), (b) upon the reasonable request of SpinCo, copies of all accounting and other records, ledgers and files, whether written or in electronic form (other than the items described in clause (a) above) that are not used prior to the Redemption Date exclusively in the Television Business, and (c) copies of all Tax Returns, Tax work papers and related records and files relating to DG and its Subsidiaries for taxable periods (or portions thereof) ending on or prior to the Redemption Date;  provided that original corporate stock transfer records of the Company shall be retained by DG;

Section 2.2.10Authorizations.  (a) All licenses, permits, approvals and authorizations issued or granted by any Governmental Authority exclusively in connection with the Online Business, to the extent transferrable and (b) subject to the terms and conditions of the Transition Services Agreement, the licenses described on Schedule 2.2.10;

Section 2.2.11Insurance.  All contracts of insurance, guarantee or suretyship, including all rights, claims or recoveries arising under any contract of insurance, whether or not asserted or claimed, relating to any event, occurrence, condition, fact or omission arising prior to the Effective Time of the Merger, including (a) those contracts of insurance identified on Schedule 2.2.11, (b) the SpinCo Policies and (c) all rights of SpinCo and the SpinCo Group set forth in Sections 4.1 and 4.2;

Section 2.2.12Claims.  Except as set forth on Schedule 2.2.12, all rights (including all rights to recovery, collect, enforce, control and appeal) under, with respect to or in connection with litigation involving the Online Business, whether or not SpinCo or any of its Subsidiaries is a party thereto;

Section 2.2.13Goodwill.  All goodwill of the Online Business, whether or not reflected or recorded on the financial statements of DG;

Section 2.2.14Other Assets.  Subject to the terms and conditions of the Transition Services Agreement and (if applicable) Section 2.2.16, each of the tangible assets set forth on Schedule 2.2.14;

Section 2.2.15Springbox Earn Out.  All rights and gain contingencies with respect to the earn out under the Asset Purchase Agreement dated June 1, 2012 between DG and Digital Results LLC relating to the sale of the Springbox business;

Section 2.2.16FCC Regulated Assets.  All tangible assets subject to Federal Communication Commission (“FCC”) regulation (which SpinCo shall transfer back to DG without consideration promptly following approval by the FCC of the change of control application to be submitted by DG following the Closing); and

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Section 2.2.17Roth Brokerage Account.  The brokerage account at Roth Capital that holds shares of DG common stock held as DG treasury shares.

Section 2.3Assumption.In furtherance of the Separation, SpinCo shall accept the SpinCo Assets as contributed, assigned, transferred and conveyed to it pursuant to Section 2.2 herein, and shall assume and be solely responsible for, by one or more instruments of assumption, the following:

Section 2.3.1Liabilities.  All Liabilities (other than deferred revenue) of DG, the Company Subsidiaries and/or their respective Affiliates 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 on or prior to the Effective Time of the Merger, including, without limitation:

(a)Stockholder Litigation and Appraisal Claims.  All liabilities, recoveries, damages, claims and proceedings asserted by any stockholder of DG directly or derivatively on behalf of DG against DG (if applicable) and its Affiliates 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 on or prior to the Effective Time of the Merger, whether or not related to or arising from the Merger Agreement and the transactions contemplated thereby, including any demands made or proceedings initiated by any stockholder of DG relating to the Merger under Section 262 of the Delaware General Corporation Law;

(b)Taxes.  All Liabilities for SpinCo Taxes (as defined in the Tax Matters Agreement);

(c)Employee Liabilities.  All Liabilities relating to employees of DG or any Company Subsidiary to the extent provided in the Employee Matters Agreement; and

(d)Earn Out.  One-half of the earn out obligation that may be earned and be payable to North Country Media Group, Inc. (“North Country”) under the Asset Purchase Agreement dated August 1, 2012 between DG and North Country and certain stockholders of North Country for the period August 1, 2013 through July 31, 2014, with DG retaining the remaining one-half of such obligation as a DG liability.

Section 2.3.2Transaction Expenses.  All fees and expenses paid or payable prior to or after the Effective Time to third parties by DG and/or its Affiliates in connection with the Merger Agreement and/or Separation and the Redemption, including fees and expenses owed to the Agent and financial, legal and accounting advisors, the Expenses (as defined in the Merger Agreement), and fees for the liability insurance policies referenced in Section 6.7 of the Merger Agreement.  All of such fees and expenses shall be paid at the Closing or to the extent not paid at the Closing, upon request of DG or any of its Affiliates.

Section 2.3.3SpinCo Business and SpinCo Assets.  All Liabilities of SpinCo Group related to any event, occurrence, condition or fact or omission arising out of the Online Business and/or the SpinCo Assets arising prior to, on or after the Effective Time of the Merger.

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All items and matters referenced in Sections 2.3.1 through 2.3.3 inclusive are hereafter referred to as the “SpinCo Liabilities”.

Section 2.4Governmental Approvals; Consents.

(a)The Parties shall use their respective reasonable best efforts to obtain any Governmental Approvals as promptly as practicable following the date of this Agreement.  If and to the extent that the valid, complete and perfected transfer or assignment to SpinCo of any SpinCo Assets would be a violation of applicable Law or require any Governmental Approval in connection with the Separation or the Redemption, then, unless DG shall otherwise determine, the transfer or assignment to or from SpinCo or one of its Subsidiaries, as the case may be, of such SpinCo Assets or non-SpinCo Assets, respectively, shall be automatically deemed deferred and any such purported transfer or assignment shall be null and void until such time as all legal impediments are removed and/or each of such Governmental Approval has been obtained.

(b)The Parties shall use their respective reasonable best efforts to obtain any Consents as promptly as practicable following the date of this Agreement.  Notwithstanding the foregoing, no Party shall be obligated to pay any consideration therefore to any Third Party from whom any such Consent, substitution or amendment is requested (unless such Party is fully reimbursed by the requesting Party).

Section 2.5Deferred Transfers.

(a)If the transfer or assignment of any SpinCo Asset intended to be transferred or assigned hereunder is not consummated prior to the Redemption, whether as a result of the provisions of Section 2.4 or for any other reason, then DG shall retain such SpinCo Asset and shall thereafter hold such SpinCo Asset in trust solely for the use and benefit of SpinCo (and at the sole expenses of SpinCo) to the extent not prohibited by Law.

(b)If and when the Consents and/or Governmental Approvals, or any other impediments to transfer, the absence of which caused the deferral of transfer of any SpinCo Asset pursuant to Section 2.4 or otherwise, are obtained or removed (as appropriate), the transfer of the SpinCo Asset shall be effected in accordance with the terms of this Agreement and any applicable Ancillary Agreement.

(c)DG shall take such actions with respect (at the sole expense of SpinCo) to any such retained SpinCo Asset as may be reasonably requested by SpinCo.

(d)If the Parties are unable to obtain, or to cause to be obtained, any Governmental Approvals, Consents or any other release, substitution or amendment contemplated under Section 2.4 or otherwise under this Agreement, then (i) each Party or a member of such Party’s Group, as applicable, that is party to such Contract or subject to such license or other obligation shall (i) continue to be bound by such Contract, license or other obligation, in each case (unless prohibited by Law or the terms thereof), as agent or subcontractor for the Party or member of such Party’s Group to which such Contract, license or obligation is to be assigned, transferred or conveyed hereunder had the impediment to transfer not existed (the “Liable Party”), and (ii) the Liable Party shall, or shall cause a member of such Liable Party’s Group to, pay, perform and discharge fully all the obligations or other Liabilities of such other Party or member of such other

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Party’s Group thereunder from and after the Redemption Date; provided, however, that such other Party or member of such other Party’s Group shall not be obligated to extend, renew or otherwise cause such Contract, license or other obligation to remain in effect beyond the term in effect as of the Redemption Date.  The Liable Party shall indemnify the other Party and the members of such other Party’s Group and hold each of them harmless against any and all Liabilities arising in connection therewith; provided, that the Liable Party shall have no obligation to indemnify the other Party or any member of such other Party’s Group with respect to any matter to the extent that the Liability results from such other Party has engaged in any violation of Law or fraud in connection therewith.  The other Party shall, without further consideration, promptly pay and remit, or cause to be promptly paid or remitted, to the Liable Party (or to another member of the Liable Party’s Group designated in writing by the Liable Party) all money, rights and other consideration received by it or any member of its Group in respect of such retained Contract, license or other obligation.  If and when any such Governmental Approval, Consent, release, substitution or amendment shall be obtained or such Contract, license or other obligation shall otherwise become assignable or capable of novation, the other Party shall promptly assign, or cause to be assigned, all rights, obligations and other Liabilities thereunder of any member of such other Party’s Group to the Liable Party (or to another member of the Liable Party’s Group designated in writing by the Liable Party) without payment of any further consideration and the Liable Party, or another member of such Liable Party’s Group, without the payment of any further consideration, shall assume such rights, obligations and other Liabilities.

Section 2.6Termination of Agreements.  Except with respect to this Agreement, the Merger Agreement and the Ancillary Agreements (and agreements expressly contemplated herein or therein to survive by their terms) on behalf of the Parties and their respective Groups, the Parties hereby terminate any and all written or oral agreements, arrangements, commitments or understandings, between or among them, effective as of the Redemption Date; and each Party shall, at the reasonable request of the other Party, take, or cause to be taken, such other actions as may be necessary to effect the foregoing.

Section 2.7Disclaimer of Representations and Warranties.  ON BEHALF OF THE PARTIES AND THEIR RESPECTIVE GROUPS, THE PARTIES UNDERSTAND AND AGREE THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN ANY ANCILLARY AGREEMENT, NO PARTY TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR ANY OTHER AGREEMENT OR DOCUMENT CONTEMPLATED HEREBY OR THEREBY, IS REPRESENTING OR WARRANTING IN ANY WAY AS TO THE ASSETS, BUSINESSES OR LIABILITIES CONTRIBUTED, TRANSFERRED, DISTRIBUTED OR ASSUMED AS CONTEMPLATED HEREBY OR THEREBY, AS TO ANY CONSENTS OR GOVERNMENTAL APPROVALS 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, OR AS TO THE ABSENCE OF ANY DEFENSES OR RIGHT OF SETOFF OR FREEDOM FROM COUNTERCLAIM WITH RESPECT TO ANY CLAIM OR OTHER ASSET, INCLUDING ANY ACCOUNTS RECEIVABLE, OF ANY PARTY, OR AS TO THE LEGAL SUFFICIENCY OF ANY CONTRIBUTION, DISTRIBUTION, ASSIGNMENT, DOCUMENT, CERTIFICATE OR INSTRUMENT DELIVERED HEREUNDER TO CONVEY TITLE TO ANY ASSET OR THING OF VALUE UPON THE EXECUTION,

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DELIVERY AND FILING HEREOF OR THEREOF. EXCEPT AS MAY EXPRESSLY BE SET FORTH HEREIN OR IN ANY ANCILLARY AGREEMENT, ALL SUCH ASSETS ARE BEING TRANSFERRED ON AN “AS IS,” “WHERE IS” BASIS AND SO LONG AS THE TRANSFEROR IS IN COMPLIANCE WITH THE TERMS OF THIS AGREEMENT RELATING TO THE TRANSFER, THE TRANSFEREE SHALL BEAR THE ECONOMIC AND LEGAL RISKS THAT (I) ANY CONVEYANCE SHALL PROVE TO BE INSUFFICIENT TO VEST IN THE TRANSFEREE GOOD AND MARKETABLE TITLE, FREE AND CLEAR OF ANY SECURITY INTEREST, AND (II) ANY NECESSARY CONSENTS OR GOVERNMENTAL APPROVALS ARE NOT OBTAINED OR THAT THE REQUIREMENTS OF LAWS, CONTRACTS, OR JUDGMENTS ARE NOT COMPLIED WITH.

ARTICLE III

THE REDEMPTION

Section 3.1The Redemption.

(a)Subject to Section 3.3, on or prior to the Redemption Date, for the benefit of and distribution to the holders of DG Common Stock that is issued and outstanding immediately prior to the Effective Time, DG will deliver stock certificates, endorsed by DG in blank, to Computershare Limited (the “Agent”), representing all of the outstanding and issued shares of SpinCo Common Stock then owned by DG or any member of the DG Group.  DG shall instruct the Agent to electronically deliver, after the Effective Time and upon surrender of a Certificate (or affidavit of loss in lieu thereof) or Book-Entry Share for cancellation by the Agent, together with a letter of transmittal duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the appropriate number of such shares of SpinCo Common Stock to each such holder (or designated transferee or transferees of such holder), all in accordance with Section 3.2(c) of the Merger Agreement.

(b)Subject to Sections 3.1(a), 3.3 and 3.4, each holder of DG Common Stock on the Redemption Date (or such holder’s designated transferee or transferees) will be entitled to receive in the Redemption one (1) share of SpinCo Common Stock in partial redemption of each share of DG Common Stock held on such date.

(c)SpinCo and DG, as the case may be, will provide to the Agent any and all information required to complete the Redemption.

Section 3.2Actions in Connection with the Redemption.

(a)In connection with the Redemption, DG and SpinCo shall prepare and mail to the holders of DG Common Stock such information concerning SpinCo, the Online Business, operations and management, the Separation, the Redemption and such other matters as DG shall reasonably determine and as may be required by Law.

(b)SpinCo shall also prepare, file with the Commission and cause to become effective any registration statements or amendments thereto required to effect the establishment

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of, or amendments to, any employee benefit and other plans necessary or appropriate in connection with the transactions contemplated by this Agreement, or any of the Ancillary Agreements.  SpinCo shall prepare and, in accordance with applicable Law, file with the Commission the Form 10, including amendments, supplements and any such other documentation which is necessary or desirable to effectuate the Redemption, and DG and SpinCo shall each use reasonable best efforts to obtain all necessary approvals from the Commission with respect thereto as soon as practicable.

(c)DG and SpinCo shall take all such actions as may be necessary or appropriate under the securities or blue sky Laws of the states or other political subdivisions of the United States or of other foreign jurisdictions in connection with the Redemption.

(d)DG and SpinCo shall take all reasonable steps necessary and appropriate to cause the conditions set forth in Section 3.3 to be satisfied and to effect the Redemption on the Redemption Date.

(e)Promptly after receiving a request to do so from DG, SpinCo shall prepare and file, and shall use reasonable best efforts to have approved and made effective, an application for the original listing on the Exchange of the SpinCo Common Stock to be distributed in the Redemption.

(f)DG shall give the Exchange not less than ten (10) days’ advance notice of the Redemption Date in compliance with Rule 10b-17 under the Exchange Act, if applicable.

Section 3.3Conditions to Redemption.  Subject to Section 3.2, the following are conditions to the consummation of the Redemption.  Except as set forth herein, the conditions are for the sole benefit of DG and shall not give rise to or create any duty on the part of DG or the Board of Directors of DG to waive or not waive any such condition:

(a)The Form 10 shall have been declared effective by the Commission, with no stop order in effect with respect thereto;

(b)All permits, registrations and consents required under the securities or blue sky Laws of the states or other political subdivisions of the United States or of other foreign jurisdictions in connection with the Redemption shall have been obtained and be in full force and effect;

(c)All material Government Approvals and other consents necessary to consummate the Redemption shall have been obtained and be in full force and effect;

(d)No order, injunction or decree issued by any court or agency of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Redemption shall be in effect and no other event outside the control of DG shall have occurred or failed to occur that prevents the consummation of the Redemption;

(e)The Board of Directors of DG and SpinCo shall have obtained an opinion from a financial advisor of nationally recognized standing, in a form reasonably satisfactory to the Parties and Buyer, substantially to the effect that each of SpinCo and DG will be solvent and

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adequately capitalized immediately after the Redemption and DG has sufficient surplus under the Laws of Delaware to partially redeem the DG Common Stock in exchange for the SpinCo Common Stock in accordance herewith;

(f)The Board of Directors of DG shall have authorized and approved the Redemption and not withdrawn such authorization and approval;

(g)All Ancillary Agreements shall have been entered into by the Parties;

(h)All conditions to the Merger set forth in Article VII of the Merger Agreement shall have been satisfied, other than (i) the condition set forth in Section 7.1(d) of the Merger Agreement with respect to the completion of the Spin-Off Transaction and (ii) those conditions that by the nature of their terms are to be satisfied at the Closing; and

(i)No other events or developments shall have occurred that, in the sole discretion of the Board of Directors of DG, would result in the Redemption having a material adverse effect on DG or on the stockholders of DG or not being in the best interest of DG and its stockholders.

The condition set forth in Section 3.3(e) may not be waived without the prior written consent of Buyer.  Notwithstanding anything in this Agreement to the contrary, it shall be a condition to the partial redemption of each share of DG Common Stock that the holder of such share immediately prior to the Effective Time shall have delivered to the Agent (whether prior to, on or after the Redemption Date) an original Certificate (or affidavit of loss in lieu thereof) or Book-Entry Share for cancellation by the Agent, together with a letter of transmittal duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, in each case, in accordance with Section 3.2(c) of the Merger Agreement.

Section 3.4Fractional Shares.  The Agent and DG shall, as soon as practicable after the Redemption Date: (a) determine the number of whole shares and fractional shares of SpinCo Common Stock allocable to each holder of record or beneficial owner of DG Common Stock as of close of business on the Redemption Date, (b) aggregate all such fractional shares into whole shares and sell the whole shares obtained thereby in open market transactions at then prevailing trading prices on behalf of holders who would otherwise be entitled to fractional share interests, and (c) distribute to each such holder, or for the benefit of each such beneficial owner, such holder’s or owner’s ratable share of the net proceeds of such sale, based upon the average gross selling price per share of SpinCo Common Stock after making appropriate deductions for any amount required to be withheld for United States federal income tax purposes.  The Agent, in its sole discretion, will determine the timing and method of selling such fractional shares, the selling price of such fractional shares and the broker-dealer to which such fractional shares will be sold, provided that the designated broker-dealer is not an Affiliate of DG or SpinCo.  Neither DG nor SpinCo will pay any interest on the proceeds from the sale of fractional shares.

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ARTICLE IV

INSURANCE

Section 4.1Policies and Rights Included Within the SpinCo Assets.  Without limiting the generality of the definition of the SpinCo Assets, the SpinCo Assets shall include: (a) any and all rights of an insured party under each of the Shared Policies, including rights of indemnity and the right to be defended by or at the expense of the insurer, with respect to all injuries, losses, Liabilities, damages and expenses incurred or claimed to have been incurred on or prior to the Redemption Date by any Party in connection with the Online Business or, to the extent any claim is made against the Parties or their respective Affiliates, and which injuries, losses, liabilities, damages and expenses may arise out of insured or insurable occurrences or events under one or more of the Shared Policies; provided, however, that nothing in this Section 4.1 shall be deemed to constitute (or to reflect) the assignment of the Shared Policies, or any of them, to SpinCo; and (b) the SpinCo Policies.

Section 4.2Post-Redemption Date Claims.  If, subsequent to the Redemption Date, any Person shall assert a claim against SpinCo or any SpinCo Subsidiary with respect to any injury, loss, liability, damage or expense incurred or claimed to have been incurred on or prior to the Redemption Date or in connection with the Redemption or the conduct of the SpinCo Business and such injury, loss, liability, damage or expense may have or has arisen out of insured or insurable occurrences or events under one or more of the Shared Policies, DG shall at the time such claim is asserted (except to the extent inconsistent with Section 4.1) be deemed to assign, without need of further documentation, to SpinCo any and all rights of an insured party under the applicable Shared Policy with respect to such asserted claim, including rights of indemnity and the right to be defended by or at the expense of the insurer; provided, however, that nothing in this Section 4.2 shall be deemed to constitute (or to reflect) the assignment of the Shared Policies, or any of them, to SpinCo.

Section 4.3Insured Liabilities.

(a)Claims for coverage of Insured SpinCo Liabilities shall be tendered by DG as necessary to invoke the benefit of the Policies, at SpinCo’s sole option, cost and expense.  If such insurers do not promptly acknowledge insurance coverage in connection with the Insured SpinCo Liabilities, then, with respect to such Insured SpinCo Liabilities, SpinCo or a member of the SpinCo Group on an as-incurred basis: (i) shall advance all amounts expended by the DG Group for or with respect to such Insured SpinCo Liabilities, including, without limitation, all costs and expenses in connection with the defense and settlement and in satisfaction of any judgment incurred, and amounts sufficient to cover any Liabilities required to be paid by the DG Group and (ii) shall pay all costs incurred in connection with pursuing and recovering Insurance Proceeds with respect to the Insured SpinCo Liabilities.  Any payments made by a member of the SpinCo Group on account of such Insured SpinCo Liabilities shall be deemed to be advances pursuant to this Section 4.3.  The SpinCo Group shall have the right to recover any advances made pursuant to Section 4.3 from the DG Group, and the DG Group shall have the obligation promptly to reimburse the SpinCo Group for such advances, solely from the Insurance Proceeds of the Policies that cover such Insured SpinCo Liabilities and that are received by the DG Group with respect to an Insured SpinCo Liability.  The DG Group shall: (i) at all times until paid to a

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member of the SpinCo Group, hold Insurance Proceeds received for or with respect to Insured SpinCo Liabilities in trust for the benefit of SpinCo; and (ii)  promptly remit such Insurance Proceeds to SpinCo.

(b)Claims for coverage of Insured DG Liabilities shall be tendered by SpinCo as necessary to invoke the benefit of the Policies, at DG’s sole option, cost and expense.  If such insurers do not promptly acknowledge insurance coverage in connection with the Insured DG Liabilities, then, with respect to such Insured DG Liabilities, DG or a member of the DG Group on an as-incurred basis: (i) shall advance all amounts expended by the SpinCo Group for or with respect to such Insured DG Liabilities, including, without limitation, all costs and expenses in connection with the defense and settlement and in satisfaction of any judgment incurred, and amounts sufficient to cover any Liabilities required to be paid by the SpinCo Group and (ii) shall pay all costs incurred in connection with pursuing and recovering Insurance Proceeds with respect to the Insured DG Liabilities.  Any payments made by a member of the DG Group on account of such Insured DG Liabilities shall be deemed to be advances pursuant to this Section 4.3.  DG and the DG Subsidiaries shall have the right to recover any advances made pursuant to Section 4.3 from the SpinCo Group, and the SpinCo Group shall have the obligation promptly to reimburse the DG Group for such advances, solely from the Insurance Proceeds of the Policies that cover such Insured DG Liabilities and that are received by the SpinCo Group with respect to an Insured DG Liability.  The SpinCo Group shall: (i) at all times until paid to a member of the DG Group, hold Insurance Proceeds received for or with respect to Insured DG Liabilities in trust for the benefit of DG; and (ii) promptly remit such Insurance Proceeds to DG.

ARTICLE V

RELEASES AND INDEMNIFICATION

Section 5.1Release of Pre-Redemption Claims.

(a)Except as otherwise provided in this Agreement, in Section 6.7 of the Merger Agreement or any in Ancillary Agreement and subject to Section 5.1(b), SpinCo, for itself and each member of the SpinCo Group, their respective Affiliates and all Persons who at any time prior to the Redemption Date were directors, officers, agents or employees of any member of SpinCo’s Group (in each case, in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, successors and assigns, do hereby, effective as of the Redemption Date, remise, release and forever discharge DG and the other members of DG’s Group, their respective Affiliates and all Persons who at any time prior to the Redemption Date were shareholders, directors, officers, agents or employees of any member of DG (in each case, in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, successors and assigns, from all SpinCo Liabilities.

(b)Nothing contained in Section 5.1(a) shall impair or otherwise affect any right of any Party, and as applicable, a member of the Party’s Group to enforce this Agreement, the Merger Agreement or any Ancillary Agreement.  In addition, nothing contained in Section 5.1(a) shall release any person from:

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(i)any Liability assumed, transferred by, or assigned or allocated to, a Party or a member of such Party’s Group pursuant to or contemplated by this Agreement or any Ancillary Agreement;

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

(iii)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 a Third Party, which Liability shall be governed by the provisions of this ARTICLE V and, if applicable, the appropriate provisions of the Merger Agreement and/or the Ancillary Agreements;

(c)Each Party shall not, and shall not permit any member of its Group to, make any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or indemnification, against any other Party, any member of any other Party’s Group or any other Person released pursuant to Section 5.1(a), with respect to any and all Liabilities released pursuant to Section 5.1(a).  If a Party breaches this Section 5.1(c), such breaching Party, in addition to any other remedy available at Law or under this Agreement, shall be liable for all related expenses, including court costs, attorneys’ fees, and all other legal expenses, of the other Party.

(d)It is the intent of each Party, by virtue of the provisions of this Section 5.1, to provide for a full and complete release and discharge of all the Liabilities specified herein 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, on or before the Redemption Date, whether known or unknown, including any contractual agreements or arrangements existing or alleged to exist between or among any Parties or the members of any Party’s Group on or before the Redemption Date, except as otherwise set forth in this Agreement and the Ancillary Agreements.

(e)If any Person associated with a Party (including any director, officer or employee of a Party) initiates an Action with respect to claims released by this Section 5.1, the Party with which such Person is associated shall indemnify the other Party against such Action in accordance with the provisions set forth in this ARTICLE V.

(f)At any time, at the request of any other Party, each Party shall cause each member of its respective Group and to the extent practicable each other Person on whose behalf it released Liabilities pursuant to this Section 5.1 to execute and deliver releases reflecting the provisions hereof.

Section 5.2Indemnification by SpinCo.  Except as otherwise provided in this Agreement, the Merger Agreement or any Ancillary Agreement, following the Redemption Date, SpinCo, on behalf of itself and its Subsidiaries following the consummation of the Spin-Off Transaction, shall indemnify, defend and hold harmless and shall cause its direct and indirect

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subsidiaries to indemnify, defend and hold harmless, DG, the other members of the DG Group, their respective directors and officers, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “DG Indemnitees”), from and against any and all Liabilities and related losses of the DG Indemnitees relating to, arising out of or resulting from any of the following:

(a)the failure of SpinCo, any member of the SpinCo Group or any other Person to pay, perform or otherwise promptly discharge after the Redemption Date any SpinCo Liabilities in accordance with their respective terms;

(b)the SpinCo Liabilities;

(c)any untrue statement, alleged untrue statement, omission or alleged omission of a material fact in the Form 10, resulting in a misleading statement, with respect to all information contained in the Form 10;

(d)any breach by SpinCo of any representation, warranty, covenant or agreement of SpinCo or any member of the SpinCo Group contained in this Agreement or any of the Ancillary Agreements; and

(e)any breach by DG prior to the Effective Time of any representation, warranty, covenant or agreement of DG or any member of the DG Group contained in this Agreement or any of the Ancillary Agreements.

Section 5.3Indemnification by DG.  Except as otherwise provided in this Agreement or any Ancillary Agreement, following the Redemption Date, DG, on behalf of itself and its Subsidiaries following the consummation of the Spin-Off Transaction, shall indemnify, defend and hold harmless SpinCo, the other members of the SpinCo Group, each of their respective directors and officers, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “SpinCo Indemnitees”), from and against any and all Liabilities and related losses of the SpinCo Indemnitees relating to, arising out of or resulting from any of the following:

(a)the failure of DG, its Affiliates and Group to pay, perform or otherwise promptly discharge after the Effective Time of Merger any DG Liabilities;

(b)the DG Liabilities; and

(c)any breach after the Effective Time by DG of any representation, warranty, covenant or agreement of DG or any member of the DG Group contained in this Agreement, or in any of the Ancillary Agreements.

Section 5.4Reduction for Insurance Proceeds and Other Recoveries.

(a)The amount that any Party is required to provide indemnification (the “Indemnifying Party”) to or on behalf of the Party entitled to such indemnification (the “Indemnitee”) pursuant to this ARTICLE V, shall be reduced by Insurance Proceeds or other

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amounts, in each case, actually recovered from Third Parties on behalf of such Indemnitee in respect of the Liability or related loss.  If an Indemnitee receives a payment as required by this Agreement from an Indemnifying Party in respect of any Liability or related loss and subsequently receives Insurance Proceeds in respect of such Liability or related loss, then such Indemnitee shall hold such Insurance Proceeds in trust for the benefit of the Indemnifying Party and shall pay to the Indemnifying Party, as promptly as practicable after receipt, an amount equal to the aggregate amount of such Insurance Proceeds received; provided, that the aggregate amount of all payments by such Indemnitee pursuant to this Section 5.4(a) in respect of any indemnifiable loss shall not exceed the aggregate amount of all payments received from the Indemnifying Party pursuant to this Agreement in respect of such indemnifiable loss.

(b)Any insurer who would otherwise be obligated to pay any claim shall not be relieved of the responsibility with respect thereto or, solely by virtue of the indemnification provisions hereof, have any subrogation rights with respect thereto, it being expressly understood and agreed that no insurer or any other Third Party shall be entitled to any benefit they would not be entitled to receive in the absence of the indemnification provisions by virtue of the indemnification provisions hereof.  Notwithstanding the foregoing, each member of the DG Group and SpinCo Group shall be required to use its respective commercially reasonable efforts to collect or recover any available Insurance Proceeds.

Section 5.5Procedures For Indemnification of Third Party Claims.

(a)If any Indemnitee shall receive notice or otherwise learn of the assertion by a Third Party (including any Governmental Authority) of any claim or of the commencement by any Third Party of any Action (each a “Third Party Claim”) with respect to which any Indemnifying Party may be obligated to provide indemnification to such Indemnitee hereunder, such Indemnitee shall give such Indemnifying Party and each Party to this Agreement, written notice thereof as soon as reasonably practicable, but no later than ten (10) Business Days after becoming aware of such Third Party Claim.  Any such notice shall describe the Third Party Claim in reasonable detail.  Notwithstanding the foregoing, the failure of any Indemnitee or other Party to give notice as provided in this Section 5.5(a) shall not relieve the related Indemnifying Party of its obligations under this ARTICLE V, except to the extent that such Indemnifying Party is actually prejudiced by such failure to give notice.

(b)If, within thirty (30) days after the receipt of notice from any Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third Party Claim so requires), the Indemnifying Party acknowledges in writing to such Indemnitee that the Third Party Claim is within the scope of and subject to indemnification hereunder, then the Indemnifying Party shall be entitled, if it so elects at its own cost and expense, (i) to take control of the defense and investigation of such Third Party Claim, (ii) to employ and engage legal counsel of its own choice to handle and defend the same, unless (A) the named parties to such action or proceeding include both the Indemnifying Party and such Indemnitee and such Indemnitee has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnitee that are different from or additional to those available to the Indemnifying Party, (B)  the Indemnitee reasonably determines in good faith that any Third Party Claim is having or could reasonably be expected to have a material adverse effect on its business, assets, affairs, or condition (financial or otherwise), (C) a claim for indemnification relates to or arises in

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connection with any criminal proceeding, indictment or investigation involving the Indemnitee’s Group, (D) if the Indemnitee Party determines in good faith upon the advice of outside counsel that the Indemnifying Party has failed or is failing to vigorously prosecute or defend such Third Party Claim, or (E) if the Indemnitee, at any time, reasonably believes in good faith that the Indemnifying Party does not have the financial wherewithal to vigorously prosecute or defend such Third Party Claim, then in the event of clauses (A) - (E), such Indemnitee shall be entitled, at the Indemnifying Party’s cost and expense, to participate in such defense; provided that the Indemnifying Party shall not be responsible for the reasonable fees of more than one separate counsel of the Indemnitee’s own choosing, and (iii) to compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of the Indemnitee (such consent not to be unreasonably delayed or withheld) unless (A) there is no finding or admission of any violation or wrongdoing by the Indemnitee, (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party, and (C) the Indemnitee will have no liability with respect to any compromise or settlement of such Third Party Claims effected without its consent.  After notice from the Indemnifying Party to the Indemnitee of its election to assume the defense of any Third Party Claim, (x) the Indemnifying Party will not, as long as it diligently conducts such defense, be liable to such Indemnitee for any fees of other counsel or any other expenses with respect to the defense of such Claim, except as otherwise provided herein with respect to possible conflicting legal defenses available to the indemnified and indemnifying Parties, respectively and (y) such Indemnitee shall have the right to employ separate counsel and to participate in (but not control) the defense, compromise, or settlement thereof, but the fees and expenses of such counsel shall be the expense of such Indemnitee.

(c)With respect to any Third Party Claim, the Indemnifying Party and Indemnitees agree, and shall cause their respective counsel (if applicable), to cooperate fully (in a manner that will preserve all attorney-client privilege or other privileges) to mitigate any such claim and minimize the defense costs associated therewith.

(d)If any Indemnifying Party fails to assume the defense of any Third Party Claim within thirty (30) days after receipt of written notice of such claim, the Indemnitee will, upon delivering notice to such effect to the Indemnifying Party, have the right to undertake the defense, compromise or settlement of such Third Party Claim and be fully indemnified therefor to the extent it is ultimately determined that the Indemnifying Party is obligated hereunder to indemnify the Indemnified Party with respect to such Third Party Claim.  If the Indemnitee assumes the defense of any Third Party Claim, it shall keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement.  The Indemnifying Party shall, to the extent required hereunder, reimburse all costs and expenses of the Indemnitee incurred with respect to such Third Party Claim.

Section 5.6Additional Matters.

(a)Any claim on account of a Liability or related loss which does not result from a Third Party Claim shall be asserted by written notice given by the Indemnitee to the relevant Indemnifying Party.  Such Indemnifying Party shall have a period of thirty (30) days after the receipt of such notice within which to respond thereto.  If such Indemnifying Party does not respond within such thirty (30)-day period, such Indemnifying Party shall be deemed to have

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accepted responsibility to make payment.  If such Indemnifying Party rejects such claim in whole or in part, such Indemnitee shall be free to pursue such remedies as may be available to such Party as contemplated by this Agreement and any applicable Ancillary Agreement.

(b)           In the event of payment by or on behalf of any Indemnifying Party to any Indemnitee in connection with any Third Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right, defense or claim relating to such Third Party Claim against any claimant or plaintiff asserting such Third Party Claim or against any other Person.  Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense (including allocated costs of in-house counsel and other in-house personnel) of such Indemnifying Party, in prosecuting any subrogated right, defense or claim.

(c)           In the event of an Action in which the Indemnifying Party is not a named defendant, if the Indemnifying Party shall so request, the Parties shall endeavor to substitute the Indemnifying Party for the named defendant, and add the Indemnifying Party as a named defendant if at all practicable.

Section 5.7            Survival of Indemnities.  The rights and obligations of each Party and their respective Indemnitees under this ARTICLE V shall survive the sale or other transfer by any Party or its Affiliates of any Assets or businesses or the assignment by it of any and all Liabilities.

ARTICLE VI

CERTAIN COVENANTS AND OTHER AGREEMENTS OF THE PARTIES

Section 6.1            Restriction on Employee Solicitation and Hiring.

(a)           During the period from the date hereof through the first anniversary of the date hereof, DG shall not, directly or indirectly, hire or solicit any Person, other than Persons that are employees of the TV Business as of the date hereof, who is or was employed by SpinCo or any of its Subsidiaries during the twelve-month period prior to the date hereof in connection with the Online Business, or encourage any such employee to leave or limit such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided that nothing in this Section 6.1(a) shall prevent DG from hiring any employee whose employment has been terminated subsequent to date hereof by SpinCo.

(b)           During the period from the date hereof through the second anniversary of the date hereof, SpinCo shall not, directly or indirectly, hire or solicit any Person, other than Persons that are employees of the Online Business as of the date hereof, who is or was employed by DG or the Buyer or any of their respective Subsidiaries during the twelve-month period prior to the date hereof in connection with the Restricted Business, or encourage any such employee to leave or limit such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees;

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provided that nothing in this Section 6.1(b) shall prevent SpinCo from hiring any employee whose employment has been terminated subsequent to date hereof by DG or the Buyer.  Notwithstanding anything herein to the contrary, prior to the date hereof, SpinCo shall have the right to specify in writing up to twenty (20) employees of the Television Business to be hired by SpinCo for the Online Business without DG, Acquisition Sub or the Buyer incurring any liability whatsoever for such employees after date hereof.

Section 6.2            Marks.  As soon as reasonably practicable and in any event within ninety (90) days of the Redemption Date, each Party shall, and shall cause each member of such Party’s Group to: (a) (i) in the case of DG, cease to make any use of the words set forth on Schedule 6.2(a) or derivations thereof and any trademarks related thereto or containing or comprising the foregoing, including any name or mark confusingly similar thereto or dilutive thereof (the “SpinCo Marks”) and (ii) in the case of SpinCo, cease to make use of the words set forth on Schedule 6.2(b) or derivations thereof and any trademarks related thereto or containing or comprising the foregoing, including any name or mark confusingly similar thereto or dilutive thereof (collectively with the SpinCo Marks, the “Marks”), (b) take all steps necessary, and fully cooperate with the other Party and its Affiliates, to remove the other Party’s Marks from any corporate, trade, and assumed names and cancel any recordation of such names with any Governmental Authority, and change any corporate, trade, and assumed name that uses the other Party’s Marks to a name that does not include the Marks or any variation, derivation, or colorable imitation thereof and (c) remove, strike over or otherwise obliterate all Marks of the other Party from (or otherwise not use) in all materials owned by such Party and its Affiliates, including any business cards, stationary, packaging materials, displays, signs, promotional and advertising materials, and other materials or media including any internet usage or domain names that include the other Party’s Marks.

Section 6.3            Merger Agreement.  SpinCo covenants to comply in all material respects with its obligations under the Merger Agreement.

Section 6.4            Representations.

(a)           DG and SpinCo each represents and warrants to the other as follows:

(i)            Each of DG and SpinCo has all necessary corporate power and authority to execute and deliver this Agreement (and each other agreement, certificate, document and instrument contemplated hereby to be executed and delivered by them), to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby, including the Spin-Off Transaction.  The execution and delivery of this Agreement by each of DG and SpinCo (and each other agreement, certificate, document and instrument contemplated hereby to be executed and delivered by them) and the consummation by each of DG and SpinCo of the transactions contemplated hereby and thereby, including the Spin-Off Transaction, have been duly and validly authorized by all necessary corporate action, and no other corporate proceedings on the part of either DG or SpinCo and no stockholder votes are necessary to authorize this Agreement or to consummate the transactions contemplated hereby.  This Agreement has been duly authorized and validly executed and delivered by each of DG and SpinCo constitutes a legal, valid and binding obligation of each of DG and SpinCo, enforceable against them in accordance with its terms, except that (A) such enforcement may be subject to

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applicable bankruptcy, insolvency or other similar Laws, now or hereafter in effect, affecting creditors’ rights generally and (B) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be thought.

(ii)           None of the execution, delivery or performance of this Agreement by DG or SpinCo or the consummation by them of the Spin-Off Transaction or the compliance with any of the provisions of this Agreement will (with or without notice of lapse of time, or both): (A) conflict with or violate any provision of the Company Certificate or Company Bylaws or the certificate of incorporation or bylaws of SpinCo, (B) assuming that all consents, approvals, authorizations and permits described in Section 4.4 of the Merger Agreement have been obtained and all filings and notifications described in Section 4.4(d)-(h) of the Merger Agreement have been made and any waiting periods thereunder have terminated or expired, conflict with or violate any Law applicable to DG or any DG Subsidiary or any of their respective properties or assets; or (C) require any consent or approval under, violate, conflict with, result in any breach of or any loss of any benefit under, or constitute a change of control or default under, or result in termination or give to others any right of termination, vesting, amendment, acceleration or cancellation of, or result in the creation of a Lien upon any of the respective properties or assets of DG or any DG Subsidiary pursuant to, any contract, Company Permit, or other instrument or obligation to which DG or any DG Subsidiary is a party or any of their respective properties or assets may be bound or affected, except, with respect to clauses (B) and (C), for any such conflicts, violations, consents, breaches, losses, changes of  control, defaults, other occurrences or Liens which, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect.

(ii)           Each of DG and SpinCo is not now insolvent, and will not be rendered insolvent by the Spin-Off Transaction.  As used in this Section, “insolvent” means that the sum of debts and other probable Liabilities exceeds the present fair saleable value of assets.  Immediately after giving effect to the consummation of the Spin-Off Transaction, (A) SpinCo will be able to pay its Liabilities as they become due in the usual course of its business, (B) SpinCo will have sufficient working capital with which to conduct its present or proposed business, (C) SpinCo will have assets (calculated at fair market value) that exceed its Liabilities and (D) SpinCo will have sufficient cash available to satisfy its obligations, including the indemnification obligations to DG pursuant to this Agreement.

(b)           SpinCo represents and warrants to DG that the assets remaining with DG and its Subsidiaries immediately after the consummation of the Spin-Off Transaction will constitute all of the assets used primarily in the operation of the Television Business immediately prior to the consummation of the Spin-Off Transaction, other than with respect to the working capital and cash used in the Television Business and the corporate assets referred to in Section 2.2.3 herein.

Section 6.5            Non-Competition  For a period of five (5) years commencing on the date hereof (the “Restricted Period”), SpinCo shall not, directly or indirectly, through one or more of its Subsidiaries or otherwise: (a) engage in or assist others in engaging in the Restricted Business in the Territory; (b) have an equity or other ownership interest in any Person (other than the Buyer or its Affiliates) that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, agent, trustee or

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consultant; (c) solicit or accept the business of any actual or prospective client or customer of DG or the Restricted Business (including any existing or former client or customer of DG, the Buyer or any of their respective Subsidiaries or the Restricted Business and any Person that becomes a client or customer of DG, the Buyer or any of their respective Subsidiaries or the Restricted Business after the date hereof), or any other Person who has a material business relationship with DG, the Buyer or any of their respective Subsidiaries or the Restricted Business, to purchase products or services competitive with the  Restricted Business; or (d) cause, induce or encourage any actual or prospective client, customer, supplier or licensor of DG, the Buyer or any of their respective Subsidiaries as it relates to the Restricted Business (including any existing or former client, customer, supplier or licensor of DG, the Buyer or any of their respective Subsidiaries as it relates to the Restricted Business and any Person that becomes a client, customer, supplier or licensor of DG, the Buyer or any of their respective Subsidiaries as it relates to the Restricted Business after the date hereof), or any other Person who has a material business relationship with DG, the Buyer or any of their respective Subsidiaries as it relates to the Restricted Business, to terminate or modify any such actual or prospective relationship.  Notwithstanding the foregoing, SpinCo may own, directly or indirectly, solely as an investment, equity securities of any Person traded on any national securities exchange if SpinCo is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own five percent (5%) or more of any class of equity securities of such Person.

ARTICLE VII

CONFIDENTIALITY

Section 7.1            Confidentiality.

(a)           Notwithstanding any termination of this Agreement and subject to Section 7.2, for a period of two (2) years from the Redemption Date, each Party agrees to hold, and to cause its respective Affiliates, directors, officers, employees, agents, accountants, counsel and other advisors and representatives to hold, in strict confidence, and undertake all reasonable precautions to safeguard and protect the confidentiality of, all Information concerning the other Party or any member of such other Party’s Group that is in its possession after the Redemption Date or furnished by the other Party, any other member of such other Party’s Group, or any of their respective directors, officers, employees, agents, accountants, counsel and other advisors and representatives at any time pursuant to this Agreement, any Ancillary Agreement or otherwise in connection with the transactions contemplated hereby or thereby, and shall not use any such Information other than for such purposes as shall be expressly permitted hereunder or thereunder, except, in each case, to the extent that such Information has been: (i) in the public domain through no fault of such Party, their respective Group or any of their respective directors, officers, employees, agents, accountants, counsel and other advisors and representatives, (ii) lawfully acquired from other sources, which are not bound by a confidentiality obligation, by such Party or their respective Group, or (iii) independently generated without reference to any proprietary or confidential Information of the other Party or any member of such other Party’s Group.  Notwithstanding the foregoing, the obligations under this Section 7.1(a) shall survive in perpetuity in the case of any Information that is and remains protected (other than as a result of

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any act or omission by the other Party or its representatives) as a trade secret (including, for the avoidance of doubt, software).

(b)           Each Party agrees not to release or disclose, or permit to be released or disclosed, any such Information to any other Person, except to its directors, officers, employees, agents, accountants, counsel and other advisors and representatives who need to know such Information and who are informed and advised that the Information is confidential and subject to the obligations hereunder, except in compliance with Section 7.2.  Without limiting the foregoing, when any Information is no longer needed for the purposes contemplated by this Agreement or any Ancillary Agreement, each Party will promptly after request of the other Party either: (i) destroy all copies of the Information in such Party’s possession, custody or control (including any that may be stored in any computer, word processor, or similar device, to the extent not commercially impractical to destroy such copies) including any copies, summaries, analyses, compilations, reports, extracts or other reproductions, in whole or in part, of such written, electronic or other tangible material or any other materials in written, electronic or other tangible format based on, reflecting or containing Information prepared by such Party, and/or (ii) return to the requesting Party, at the expense of the requesting Party, all copies of the Information furnished to such Party by or on behalf of the requesting Party provided, however, that the obligation to return or destroy Information shall not apply to copies of Information made as a matter of routine information technology backup (although such copies shall remain subject to the confidentiality and use restrictions hereunder); and provided further that, regardless of whether the Information is returned or destroyed, the recipient Party may retain one archival copy of the other Party’s (or any of its Group’s) Information for use solely in the event a dispute arises hereunder and only in connection with such dispute.

(c)           For the avoidance of doubt, each Party acknowledges that the customer list of the other Party is an asset of such other Party and constitutes confidential and proprietary Information of such other Party, and is subject to the confidentiality and other protections of this Agreement.

Section 7.2            Protective Arrangements.  In the event that either Party or any member of such Party’s Group, either (a) determines after consultation with counsel, in the opinion of such counsel that it is required by Law to disclose any Information or (b) receives any demand under lawful process or from any Governmental Authority to disclose or provide Information of the other Party or their respective Group that is subject to the confidentiality provisions hereof, such Party shall notify the other Party prior to disclosing or providing such Information and shall cooperate at the expense of the requesting Party (and to the extent legally permissible) in seeking any reasonable protective arrangements requested by such other Party.  Subject to the foregoing, the Party that received such request may thereafter: (i) furnish only that portion of the Information that is legally required, (ii) give notice to the other Party of the information to be disclosed as far in advance as is practical, and (iii) exercise reasonable best efforts to obtain reliable assurance that the confidential nature of such Information shall be maintained.

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ARTICLE VIII

ACCESS TO INFORMATION AND SERVICES

Section 8.1            Provision of Corporate Records.

(a)           In furtherance and not in limitation of DG’s obligation to deliver to SpinCo the SpinCo Assets set forth in Section 2.2.9,  and except as otherwise provided in any Ancillary Agreement, upon the prior written request by SpinCo for specific and identified books and records which relate to (x) SpinCo or the conduct of the Online Business, as the case may be, on or prior to the Redemption Date or (y) any Ancillary Agreement to which SpinCo and DG are parties (collectively, the “SpinCo Books and Records”), DG shall deliver or cause to be delivered, as soon as practicable but no later than ten (10) Business Days following the date of such request, copies of such SpinCo Books and Records in its possession or control, except to the extent such items are already in the possession of SpinCo or a SpinCo Affiliate, at the expense of SpinCo to a location specified by SpinCo.

(b)           Except as otherwise provided in any Ancillary Agreement, upon the prior written request by DG for specific and identified books and records which relate to (x) DG or the conduct of the Television Business, as the case may be, on or prior to the Redemption Date or (y) any Ancillary Agreement to which SpinCo and DG are parties (collectively, the “DG Books and Records”), SpinCo shall deliver or cause to be delivered, as soon as practicable but no later than ten (10) Business Days following the date of such request, copies of such DG Books and Records in its possession or control, except to the extent such items are already in the possession of DG or a DG Affiliate, at the expense of DG to a location specified by DG.

(c)           With respect to books and records that relate to both the Online Business and the Television Business (the “Combined Books and Records”), (i) the Parties shall use good faith efforts to divide such Combined Books and Records into SpinCo Books and Records and DG Books and Records, as appropriate, and (ii) to the extent such Combined Books and Records are not so divided, each Party shall each keep and maintain copies of such Combined Books and Records as reasonably appropriate under the circumstances, subject to applicable confidentiality provisions hereof and of any Ancillary Agreement.

Section 8.2            Access to Information.  Except as otherwise provided in any Ancillary Agreement and subject to Section 8.4, from and after the Redemption Date, DG shall provide SpinCo and its authorized accountants, counsel and other designated representatives reasonable access and duplicating rights upon reasonable advance notice during normal business hours to all records, books, contracts, instruments, computer data and other data and information (collectively, “Operations Data”), including real time, uninterrupted access to DG’s Great Plains financial and management information system, relating to pre-Redemption operations of the Online Business within DG’s possession or control (including using reasonable best efforts to give access to persons or firms possessing information) insofar as such access is reasonably required by SpinCo for the conduct of the Online Business, subject to appropriate restrictions for classified or privileged information.  Similarly, except as otherwise provided in any Ancillary Agreement and subject to Section 8.4, SpinCo shall provide DG and its authorized accountants, counsel and other designated representatives reasonable access (including using reasonable best

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efforts to give access to persons or firms possessing information) and duplicating rights upon reasonable advance notice during normal business hours to Operations Data relating to the pre-Redemption Operations of the Television Business, within SpinCo’s possession or control (including using reasonable best efforts to give access to persons or firms possessing information), insofar as such access is reasonably required by DG for the conduct of the Television Business, subject to appropriate restrictions for classified or privileged information.  Operations Data and other documents may be requested under this ARTICLE VIII for the legitimate business purposes of either Party, including audit, accounting, claims (including claims for indemnification hereunder), litigation and tax purposes, as well as for purposes of fulfilling disclosure and reporting obligations and for performing under this Agreement and the transactions contemplated hereby.

Section 8.3            Production of Witnesses.  At all times after the Redemption Date, subject to Section 8.4, each of SpinCo and DG shall use reasonable best efforts to make available to the other, upon prior written request, its and its Subsidiaries’ officers, directors, employees and agents as witnesses to the extent that such Persons may reasonably be required in connection with any Action.

Section 8.4            Reimbursement.  Except to the extent otherwise contemplated in any Ancillary Agreement, a Party providing Operations Data or witness services to the other Party under this ARTICLE VIII shall be entitled to receive from the recipient, upon the presentation of invoices therefor, payments of such amounts, relating to supplies, disbursements and other out-of-pocket expenses (at cost) and direct and indirect expenses of employees who are witnesses or otherwise furnish assistance (at cost), as may be reasonably incurred in providing such Operations Data or witness services.

Section 8.5            Privileged Matters.  To allocate the interests of each Party with respect to privileged information, the Parties agree as follows:

(a)           DG shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the Television Business and as to which privilege arose prior to the Separation, whether or not the privileged information is in the possession of or under the control of DG or SpinCo.  DG shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting Liabilities of DG and the DG Group, now pending or which may be asserted in the future, in any lawsuits or other Actions initiated against or by DG, whether or not the privileged information is in the possession of or under the control of DG or SpinCo.

(b)           SpinCo shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the Online Business, whether or not the privileged information is in the possession of or under the control of DG or SpinCo.  SpinCo shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the subject matter of any claims constituting SpinCo Liabilities, now pending or which may be asserted in the future, in any lawsuits or other Actions initiated against or by SpinCo, whether or not the privileged information is in the possession of SpinCo or under the control of DG or SpinCo.

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(c)           DG and SpinCo agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions of this Section 8.5, with respect to all privileges not allocated pursuant to the terms of Sections 8.5(a) and (b).  All privileges relating to any claims, proceedings, litigation, disputes or other matters which involve both DG and SpinCo in respect of which DG and SpinCo retain any responsibility or liability under this Agreement shall be subject to a shared privilege.

(d)           No Party may waive any privilege which could be asserted under any applicable Law, if the other Party has a shared privilege, without the consent of the other Party, except to the extent reasonably required in connection with any litigation with Third Parties or as provided in Section 8.5(e) below.  Such consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent.

(e)           In the event of any litigation or dispute between a member of the DG Group and a member of the SpinCo Group, either Party may waive a privilege in which the other Party has a shared privilege, without obtaining the consent of the other Party, provided that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute between the DG Group and the SpinCo Group, and shall not operate as a waiver of the shared privilege with respect to Third Parties.

(f)            If a dispute arises between the Parties regarding whether a privilege should be waived to protect or advance the interest of either Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for waiver by the other Party.  Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.

(g)           Upon receipt by any Party of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other Party has the sole right hereunder to assert a privilege, or if any Party obtains knowledge that any of its current or former directors, officers, agents or employees has received any subpoena, discovery or other request which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it may have under this Section 8.5 or otherwise to prevent the production or disclosure of such privileged information.

(h)           The transfer of all Information pursuant to this Agreement is made in reliance on the agreement of DG and SpinCo, as set forth in Sections 8.4 and 8.5 and elsewhere in this Agreement, to maintain the confidentiality of privileged information and to assert and maintain applicable privileges.  The access to information being granted pursuant to Sections 8.1 and 8.2, the agreement to provide witnesses and individuals pursuant to Section 8.3 and the transfer of privileged information between the DG Group and the SpinCo Group 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.

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Section 8.6            Limitations on Obligations.  Notwithstanding anything to the contrary, (x) in the event that the Party to whom the request has been made determines in good faith upon the advice of counsel that any such provision of Information would violate any applicable law or agreement or waive any attorney-client privilege, then the parties shall use commercially reasonable efforts to permit compliance with such obligations to the extent and in a manner that avoids any harm or consequence; and (y) the Party providing information hereunder shall only be obligated to provide such information in the form, condition and format in which it then exists and in no event shall such Party be required to perform any improvement, modification, conversion, updating or reformatting of any such information.

ARTICLE IX

DISPUTE RESOLUTION

Section 9.1            Disputes.  DG and SpinCo recognize that disputes as to certain matters may from time to time arise during the effectiveness of this Agreement and the Ancillary Agreements which relate to either Party’s rights and obligations hereunder or thereunder.  It is the objective of the Parties to establish procedures to facilitate the resolution of certain disputes arising under this Agreement and the Ancillary Agreements in an expedient manner by mutual cooperation and without resort to litigation.  To accomplish this objective, the Parties agree to follow the procedures set forth in this ARTICLE IX if and when a dispute arises under this Agreement or the Ancillary Agreements; provided, however, that the provisions of this Article IX shall not apply with respect to the interpretation and enforcement of the indemnification provisions of this Agreement, which matters may be brought before any court of competent jurisdiction.  In the event of a dispute between the Parties, either Party may, by written notice to the other, have such dispute referred to their respective chief executive officers for attempted resolution by good faith negotiations.  In the event that, for any reason, the chief executive officers are not able to resolve such dispute within ten (10) Business Days after receipt of notice, then at the request of any Party the dispute shall be resolved as provided in Section 9.2 and Section 9.3.

Section 9.2            Arbitration.  Any dispute, controversy or claim arising out of or relating to this Agreement or the Ancillary Agreements, including disputes relating to breach, validity or termination thereof, that has not been resolved in accordance with Section 9.1 herein shall, at the request of any Party be finally resolved by binding arbitration in the manner set forth in Section 9.3.

Section 9.3            Arbitration Procedure.  The arbitration shall be conducted in accordance with the International Institute for Conflict Prevention and Resolution (“CPR”) Rules for Non-Administered Arbitration (the “Rules”) then in effect, subject to the following provisions:

(a)           Notice.  If a Party intends to begin an arbitration proceeding to resolve a dispute hereunder, such Party shall provide written notice to the other Party in accordance with the Rules, which notice shall include a complete listing of all of the issues to be resolved in such arbitration.  The other Party may, in response to such notice, add additional issues to be resolved by providing a written response to such first Party.

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(b)           Arbitrators.  If the aggregate amount in controversy is $5 million or less (including all claims and counterclaims), there shall be one arbitrator who shall be agreed upon by the Parties within thirty (30) days of receipt by respondent of a copy of the demand for arbitration.  If the aggregate amount in controversy is more than $5 million (including all claims and counterclaims), there shall be three arbitrators meeting the conditions set forth in this Section 9.3(b), one of whom shall be appointed by each of the Parties in accordance with the Rules, and the third arbitrator, who shall chair the arbitral tribunal, shall be mutually appointed by the two Party-appointed arbitrators within fifteen (15) days of the appointment of the second arbitrator.  If any arbitrator is not appointed within the time limit provided herein, such arbitrator shall be appointed by the CPR in accordance with the Rules.  Any arbitrator appointed by the CPR shall be a retired judge or a practicing attorney with no less than fifteen years of experience with large commercial cases and experience as an arbitrator.  Each arbitrator shall be neutral, disinterested, impartial and independent of the Parties and others having any known interest in the outcome, and shall abide by the AAA/ABA Code of Ethics for Arbitrators in Commercial Disputes.  Except with regard to selection of the third arbitrator by the Party-appointed arbitrators, there shall be no ex parte communications with the arbitrator(s) during the arbitration.

(c)           Interim Relief.  By agreeing to arbitration, the Parties do not intend to deprive any court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award.  Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the Parties to request that any court modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of any Party to respect the arbitral tribunal’s orders to that effect.

(d)           Location.  The arbitration shall be conducted and the award shall be rendered in New York, New York.

(e)           Discovery.  The Parties shall have the right to undertake limited and focused documentary discovery and, as may be expressly authorized by the arbitrator(s) limited depositions of no more than five per Party and of limited duration, upon a determination that such depositions are reasonably necessary to enable the requesting Party to prepare and present its claims and/or defenses at the hearing.

(f)            The arbitration hearing on the merits shall be held as soon as practicable, if possible no later than one hundred and twenty (120) days following the date of the appointment of the sole or third arbitrator, or as soon thereafter as is practicable.  The arbitrator(s) must hold an oral hearing, but may impose reasonable time limits on each phase of the proceeding and may limit testimony to exclude evidence that would be immaterial or unduly repetitive, provided that all Parties are afforded the opportunity to present material and relevant evidence and that each Party is given at least an approximately equal amount of time for presentation of its case.  The arbitrator(s) shall require witnesses to testify under oath if requested by any Party.  Any Party desiring a stenographic record may, at their own cost, secure a court reporter to attend the proceedings.  When the arbitrator(s) determine that all relevant and material evidence and arguments have been presented, the arbitrator(s) will declare the hearing closed.  The arbitrator(s) may defer the closing of the hearing for up to ten (10) days to permit the Parties to submit post-hearing briefs.

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(g)           The arbitrator(s) may award any remedy allowed by Law, including money damages, prejudgment interest and attorneys’ fees, and to grant final, complete, interim, or interlocutory relief, including specific performance or any other form of permanent injunctive relief.  Notwithstanding the foregoing, punitive, exemplary or multiple damages may not be awarded.  Judgment upon any arbitration award hereunder may be entered and enforced in any court having jurisdiction thereof.  In rendering the award, the arbitrator(s) shall apply the substantive Law of the State of Delaware, without regard to its conflict of laws provisions.  The interpretation of and enforcement of this ARTICLE IX shall be governed by the Federal Arbitration Act.  The arbitrator(s) will render the award and its decisions within thirty (30) days following the date of the closing of the hearing or as soon thereafter as practicable.  The decision and award of the arbitrator(s) will be final and binding on the Parties and may be entered and enforced in any court having jurisdiction.

Section 9.4            Confidentiality.  The arbitration proceeding shall be confidential and the arbitrator(s) shall issue appropriate protective orders to safeguard each Party’s confidential Information.  Except as required by Law, no Party shall make (or instruct the arbitrator(s) to make) any public announcement with respect to the proceedings or decision of the arbitrator(s) without prior written consent of each other Party.  The existence of any dispute submitted to arbitration, and the award, shall be kept in confidence by the Parties and the arbitrator(s), except as may be required in connection with the enforcement of such award or as otherwise required by applicable Law or regulatory authority.

ARTICLE X

FURTHER ASSURANCES

Section 10.1          Further Assurances.

(a)           In addition to and without limiting the actions specifically provided in this Agreement, each of the Parties hereto shall use its reasonable best efforts, prior to, on and after the Redemption Date, to take, or cause to be taken, all actions, and to do, or cause to be done, all things, reasonably necessary, proper or advisable under applicable Law to consummate and make effective the transactions contemplated by this Agreement and the Ancillary Agreements.

(b)           Without limiting the foregoing, prior to, on and after the Redemption Date, each Party hereto shall cooperate with the other Party, and without any further consideration, but at the expense of the requesting Party, to execute and deliver, or use its reasonable best efforts to cause to be executed and delivered, all instruments, including instruments of conveyance, assignment and transfer, and to make all filings with, and to obtain all consents, approvals or authorizations of, any Governmental Authority or any other Person under any permit, license, agreement, indenture or other instrument (including any Consents or Governmental Approvals), and to take all such other actions as such Party may reasonably be requested to take by the other Party hereto from time to time, consistent with the terms of this Agreement and the Ancillary Agreements, in order to effectuate  the provisions and purposes of this Agreement and the Ancillary Agreements, including the assignment and transfer of the SpinCo Assets, the assignment and assumption of the SpinCo Liabilities and the other transactions contemplated hereby and thereby.

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(c)           From and after the Separation, if there is any asset that is used primarily in the Television Business or the Online Business that is critical to the operation of the other, the parties shall negotiate in good faith to make such asset or the benefit thereof available to the other pursuant to the Transition Services Agreement or such other arrangement as the parties may in good faith agree.

Section 10.2          Savings Clause.  To the extent any assignment of any contract, agreement or other instrument pursuant to the terms of this Agreement would violate the terms of such contract, agreement or instrument, such assignment shall be voidable, and the Parties will endeavor in good faith to subcontract to each other the benefits contemplated by such assignment, and/or seek the consent to such assignment from the other party(ies) thereto, including entering into novation agreements as such other party(ies) may reasonably require.  To the extent any assigned or novated contract, agreement or other instrument has a useful benefit to the ongoing business of the assignor of such contract, agreement or other instrument, the assignee thereof shall in good faith cooperate with the assignor in seeking to retain such benefit on a non-exclusive basis whether by subcontract or contact with (and if necessary negotiation with) the other party(ies) to such contract to retain such benefit by execution of a new or replacement contract, agreement or other instrument.

Section 10.3          Schedules(a).  The schedules referenced in this Agreement shall be updated as reasonably required due to apparent error or the passage of time from the date hereof to the Redemption Date, provided that Buyer shall have the right to review and consent to changes to the Schedules hereto with reasonable advance notice, such consent not to be unreasonably withheld.

ARTICLE XI

TERMINATION

Section 11.1          Termination.  Notwithstanding anything to the contrary herein, except as set forth in the Merger Agreement, this Agreement (including ARTICLE V (Releases and Indemnification) hereof) may be terminated and the Redemption may be amended, modified or abandoned, in each case, at any time prior to the Redemption Date by and in the sole discretion of DG without the approval of SpinCo or the stockholders of DG.  In the event of such termination, no Party shall have any Liability to the other Party or any other Person.  After the Redemption Date, this Agreement may not be terminated except by an agreement in writing signed by each of the Parties.

ARTICLE XII

MISCELLANEOUS

Section 12.1          Counterparts; Entire Agreement.

(a)           This Agreement may be executed and delivered (including by facsimile transmission) in two or more counterparts, and by the different parties hereto in separate

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counterparts, each of which when executed and delivered shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.

(b)           This Agreement, the Ancillary Agreements and the Appendices and Schedules hereto and thereto contain the entire agreement between the Parties with respect to the subject matter hereof, supersede all previous agreements, negotiations, discussions, writings, understandings, commitments and conversations with respect to such subject matter and there are no agreements or understandings between the Parties other than those set forth or referred to herein or therein.  Except with respect to certain tax matters set forth in the Tax Matters Agreement, which shall be governed in accordance with such Tax Matter Agreement, and certain employee and employee benefit plan matters set forth in the Employee Matters Agreement, which shall be governed by the Employee Matters Agreement in the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of any Ancillary Agreement, the terms and conditions of this Agreement (including amendments hereto) shall control.

Section 12.2          Governing Law.  This Agreement, except as expressly provided herein, and, unless expressly provided therein, each Ancillary Agreement, shall be governed by and construed and interpreted in accordance with the Laws of the State of Delaware, irrespective of the choice of laws principles of the State of Delaware as to all matters, including matters of validity, construction, effect, enforceability, performance and remedies.

Section 12.3          Tax Matters.  Notwithstanding anything to the contrary in this Agreement, except as expressly set forth herein, the rights and obligations of the Parties with respect to any and all tax matters shall be exclusively governed by the provisions of the Tax Matters Agreement, and the rights and obligations of the Parties with respect to any and all employee and employee benefit plan matters shall be exclusively governed by the provisions of the Employee Matters Agreement.

Section 12.4          Assignability.  The provisions of this Agreement, each Ancillary Agreement and the obligations and rights hereunder 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.  Notwithstanding the foregoing, this Agreement shall not be assignable, in whole or in part, by any Party without the prior written consent of the other Party, and any attempt to assign any rights or obligations arising under this Agreement without such consent shall be null and void.

Section 12.5          Third Party Beneficiaries.  Except for the indemnification rights under this Agreement of any DG Indemnitee or SpinCo Indemnitee in their respective capacities as such, and except for Sections 3.3(e), 6,1(b) and 6.5 of which Buyer is an intended third party beneficiary hereof, (a) the provisions of this Agreement and each Ancillary Agreement are solely for the benefit of the Parties and are not intended to confer upon any Person except the Parties any rights or remedies hereunder, and (b) there are no Third Party beneficiaries of this Agreement or any Ancillary Agreement and neither this Agreement nor any Ancillary Agreement shall provide any Third Party with any remedy, claim, liability, reimbursement, claim of action or other right in excess of those existing without reference to this Agreement or any Ancillary Agreement.

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Section 12.6          Notices.  All notices, requests, claims, demands or other communications under this Agreement or any Ancillary Agreement shall be in writing and shall be deemed to be duly given when (a) delivered in person or (b) deposited in the United States mail or private express mail, postage prepaid, addressed as follows:

If to DG after the Redemption Date, to :

c/o Extreme Reach, Inc.

75 2nd Avenue

Needham, MA 02494
Attention: John Roland, President and CEO
Facsimile: (877) 484-8836

with a copy, which shall not constitute notice, to:

Pierce Atwood LLP

100 Summer Street, Suite 2250

Boston, MA  02110
Attention: Timothy C. Maguire, Esq.
Facsimile:  (617) 824-2020

If to SpinCo, to:

The New Online Company
750 West John Carpenter Freeway, Suite 700
Irving, TX  75039
Attention: Craig Holmes, Chief Financial Officer
Facsimile: (972) 581-2100

with a copy to:

The New Online Company
750 West John Carpenter Freeway, Suite 700
Irving, TX  75039
Attention: Sean N. Markowitz, General Counsel and Secretary
Facsimile: (972) 581-2100

and a copy, which shall not constitute notice, to:

Latham & Watkins LLP
555 Eleventh Street, N.W., Suite 1000
Washington, D.C. 20004-1304
Attention: William P. O’Neill
Telephone: (202) 637-2275
Facsimile: (202) 637-2201
E-mail: william.o’neill@lw.com

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Either Party may, by notice to the other Party, change the address to which such notices are to be given by delivery of notice in accordance with this Section 12.6.

Section 12.7          Severability.  If any provision of this Agreement or any Ancillary Agreement or the application thereof to any Person or circumstance is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions hereof or thereof, or the application of such provision to Persons or circumstances or in jurisdictions other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby, so long as the economic or legal substance of the transactions contemplated hereby or thereby, as the case may be, is not affected in any manner adverse to any Party.  Upon such determination, the Parties shall negotiate in good faith in an effort to agree upon such a suitable and equitable provision to affect the original intent of the Parties.

Section 12.8          Publicity.  Prior to the Redemption, each of SpinCo and DG shall consult with each other prior to issuing any press releases or otherwise making public statements with respect to the Separation, the Redemption or any of the other transactions contemplated hereby and prior to making any filings with any Governmental Authority with respect thereto.

Section 12.9          Expenses.  Except as expressly set forth in this Agreement or in any Ancillary Agreement, whether or not the Separation or the Redemption is consummated, all Third Party fees, costs and expenses paid or incurred in connection with the Redemption will be paid by SpinCo.

Section 12.10       Headings; Interpretation.  The article, section and paragraph headings contained in this Agreement and in the Ancillary Agreements are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement or any Ancillary Agreement.  When a reference is made in this Agreement to an Appendix, Article or Section, such reference shall be to an Appendix, Article or Section of this Agreement, unless otherwise indicated.  The table of contents and headings for this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.”  The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein.  The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term.  Any statute defined or referred to herein or in any agreement or instrument that is referred to herein means such statute as from time to time amended, modified or supplemented, including (in the case of statutes) by succession of comparable successor statutes.  References to a Person are also to its permitted successors and assigns.

Section 12.11       Survival of Covenants.  Except as expressly set forth in any Ancillary Agreement and subject to termination of this Agreement pursuant to Section 11.1, all covenants, representations and warranties contained in this Agreement and each Ancillary Agreement, and

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liability for the breach of any obligations contained herein, shall survive the Redemption Date and remain in full force and effect in accordance with their applicable terms.

Section 12.12       Waivers of Default.  The failure of either Party to require strict performance by the other Party of any provision in this Agreement or any Ancillary Agreement will not waive or diminish such Party’s right to demand strict performance thereafter of that or any other provision hereof.

Section 12.13       Specific Performance.  The Parties agree that irreparable damage would occur in the event that the provisions of this Agreement were not performed in accordance with their specific terms.  Accordingly, it is hereby agreed that the Parties shall be entitled to (i) an injunction or injunctions to enforce specifically the terms and provisions hereof in any arbitration in accordance with ARTICLE IX, (ii) provisional or temporary injunctive relief in accordance therewith in the District of Delaware, and (iii) enforcement of any such award of an arbitral tribunal in any court of the United States, or any other any court or tribunal sitting in any state of the United States or in any foreign country that has jurisdiction, this being in addition to any other remedy or relief to which they may be entitled.

Section 12.14       Amendments.  This Agreement may not be modified or amended except by an agreement in writing signed by each of the Parties.

Section 12.15       Waiver of Jury Trial.  SUBJECT TO ARTICLE 9 HEREIN, EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY COURT PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF AND PERMITTED UNDER OR IN CONNECTION WITH THIS AGREEMENT.  EACH OF THE PARTIES HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 12.15.

[Signature Page Follows]

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IN WITNESS WHEREOF, the Parties have caused this Separation and Redemption Agreement to be executed by their duly authorized representatives as of the day and year first above written.

DIGITAL GENERATION, INC.
By:	/s/ Craig Holmes
Name:	Craig Holmes
Title:	Chief Financial Officer
SIZMEK INC.
By:	/s/ Neil Nguyen
Name:	Neil Nguyen
Title:	President and Chief Executive Officer

APPENDIX A

DEFINITIONS

“Acquisition Sub” shall have the meaning set forth in the recitals.

“Action” shall mean any demand, action, suit, countersuit, arbitration, inquiry, proceeding or investigation by or before any federal, state, local, foreign or international Governmental Authority or any arbitration or mediation tribunal.

“Affiliate” shall mean, when used with respect to a specified Person, a Person that directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such specified Person, including a Subsidiary (as defined below).  As used herein, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities or other interests, by contract or otherwise; provided that if control is deemed solely on the basis of ownership of voting securities or other interests, such ownership must be in excess of twenty percent (20%) of the then outstanding shares of common stock or the combined voting power of such Person.

“Agent” shall have the meaning set forth in Section 3.1(a).

“Agreement” shall have the meaning set forth in the introductory paragraph.

“Ancillary Agreements” shall mean all of the written agreements, instruments,  assignments, bills of sale, assumption agreements and other arrangements entered into in connection with the Spin-Off Transaction, including the Transition Services Agreement, Tax Matters Agreement and Employee Matters Agreement.  The Ancillary Agreements shall not include the Merger Agreement.

“Buyer” shall have the meaning set forth in the recitals.

“Combined Books and Records” shall have the meaning set forth in Section 8.1(c).

“Commission” shall mean the United States Securities and Exchange Commission or any successor agency thereto.

“Consents” shall mean any consents, waivers or approvals required from, or notification required to be made to, any Third Party (other than a Governmental Authority) in connection with the transactions contemplated by this Agreement.

“Contract” shall mean any contract, obligation, indenture, agreement, lease, purchase order, commitment, permit, license, note, bond, mortgage, arrangement or undertaking (whether written or oral and whether express or implied) that is legally binding on any Person or any part of its property under applicable Law, but excluding this Agreement and any Ancillary Agreement save as otherwise expressly provided in this Agreement or any Ancillary Agreement.

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“CPR” shall have the meaning set forth in Section 9.3.

“DG” shall have the meaning set forth in the introductory paragraph.

“DG Books and Records” shall have the meaning set forth in Section 8.1(b).

“DG Common Stock” shall mean the Common Stock, $0.001 par value per share, of DG.

“DG Group” shall mean DG and each Person, other than any member of the SpinCo Group, that is an Affiliate of DG immediately after the Redemption Date or that becomes an Affiliate of DG after the Redemption Date.

“DG Liabilities” shall mean all Liabilities of the DG Group arising out of the Television Business occurring after the Effective Time of the Merger and which, for the avoidance of doubt, shall not include any SpinCo Liabilities.

“DG Marks” shall have the meaning set forth in Section 6.2.

“Effective Time” shall have the meaning set forth in the Merger Agreement.

“Employee Matters Agreement” shall mean that certain Employee Matters Agreement between DG and SpinCo to be entered into on or prior to the Redemption Date.

“Exchange” shall mean the NASDAQ Capital Market.

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time that reference is made thereto.

“Form 10” shall mean the registration statement on Form 10 filed by SpinCo with the Commission relating to the SpinCo Common Stock, as amended from time to time.

“Governmental Approvals” shall mean any notices, reports or other filings required to be made, and any consents, registrations, approvals, permits or authorizations required to be obtained from, any Governmental Authority, in each case, in connection with the transactions contemplated by this Agreement.

“Governmental Authority” shall mean any federal, state, local, foreign or international court, government department, commission, board, bureau, agency, official or other regulatory, administrative or governmental authority.

“Group” shall mean either the DG Group or the SpinCo Group, as the case may be.

“Indemnifying Party” shall have the meaning set forth in Section 5.4(a).

“Indemnitee” shall have the meaning set forth in Section 5.4(a).

“Information” shall mean information, whether or not patentable or copyrightable, in written, oral, electronic or other tangible or intangible forms, stored in any medium, including

ii

studies, reports, records, books, contracts, instruments, surveys, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, blueprints, diagrams, models, prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes, computer programs or other software, marketing plans, customer names, communications by or to attorneys (including attorney-client privileged communications), memos and other materials prepared by attorneys or under their direction (including attorney work product), communications and materials otherwise related to or made or prepared in connection with or in preparation for any legal proceeding, and other technical, financial, employee or business information or data.

“Insurance Proceeds” shall mean those monies (i) received by an insured from an unaffiliated Third Party insurer under any Third Party Shared Policy, or (ii) paid by such Third Party insurer on behalf of an insured under any Third Party Shared Policy, in either case net of any applicable premium adjustment, retrospectively-rated premium, deductible, retention, or cost of reserve paid or held by or for the benefit of such insured.

“Insured DG Liabilities” shall mean that portion of any DG Liability to the extent, and only to the extent, that, with respect to such portion of such Liability, Insurance Proceeds of the Policies are actually recoverable by a member of the SpinCo Group directly, as a holder, successor in interest or permitted assignee under the terms of the Policies in accordance with applicable Law, and not by any member of the DG Group.

“Insured SpinCo Liabilities” shall mean that portion of any SpinCo Liability to the extent, and only to the extent, that, with respect to such portion of such Liability, Insurance Proceeds of the Policies are actually recoverable by a member of the DG Group directly, as a holder, successor in interest or permitted assignee under the terms of the Policies in accordance with applicable Law, and not by any member of the SpinCo Group.

“Intellectual Property” shall mean all intellectual property and industrial property rights of any kind or nature, including all United States and foreign (i) patents, patent applications, patent disclosures, and all related continuations, continuations-in-part, divisionals, reissues, re-examinations, substitutions and extensions thereof, (ii) trademarks and all goodwill associated therewith, (iii) copyrights and copyrightable subject matter, whether statutory or common law, registered or unregistered and published or unpublished, (iv) rights of publicity, (v) moral rights and rights of attribution and integrity, (vi) rights in Software, (vii) trade secrets and all other confidential and proprietary information, know-how, inventions, improvements, processes, formulae, models and methodologies, (viii) rights to personal information, (ix) telephone numbers and internet protocol addresses, (x) applications and registrations for the foregoing, and (xi) rights and remedies against past, present, and future infringement, misappropriation, or other violation of the foregoing.

“Law” shall mean any United States or non-United States federal, national, supranational, state, provincial, local or similar statute, law, ordinance, regulation, rule, code, order, requirement or rule of law (including common law).

“Liabilities” shall mean any and all debts, liabilities and obligations whatsoever, whether accrued or fixed, known or unknown, absolute or contingent, matured or unmatured, reserved or unreserved, or determined or determinable of any kind or nature whatsoever, including those

iii

arising under any Law or 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 or any fines, damages or equitable relief which may be imposed in connection with any of the foregoing and including all costs and expenses related thereto.

“Liable Party” shall have the meaning set forth in Section 2.5(d).

“Marks” shall have the meaning set forth in Section 6.2.

“Merger” shall have the meaning set forth in the recitals.

“Merger Agreement” shall have the meaning set forth in the recitals.

“Online Business” shall have the meaning ascribed in the Merger Agreement.

“Operations Data” shall have the meaning set forth in Section 8.2.

“Party” shall have the meaning set forth in the introductory paragraph.

“Person” shall mean any natural person, firm, individual, corporation, business trust, joint venture, association, company, limited liability company, partnership, or other organization or entity, whether incorporated or unincorporated, or any governmental entity.

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

“Redemption Date” shall mean the Effective Date of the Merger.

“Restricted Business” shall mean any enterprise engaged in the Television Business throughout the Territory provided however that for purposes of clarity “Restricted Business” shall not include the ad serving of commercials or data to Connected TV, Video On Demand platforms or online publishers and distributors offering TVE (Television Everywhere).

“Restricted Period” shall have the meaning set forth in Section 6.5.

“Rules” shall have the meaning set forth in Section 9.3.

“Separation” shall have the meaning set forth in the recitals.

“Shared Policies” shall mean all Policies, entered prior to the Redemption Date which are between or among a member of the DG Group, SpinCo Group or any of their respective Affiliates and one or more Third Parties that benefit both the Television Business and the Online Business.

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“Software” shall mean all computer programs (whether in source code, object code, or other form), algorithms, databases, compilations and data, and technology supporting the foregoing, and all documentation, including flowcharts and other logic and design diagrams, technical, functional and other specifications, and user manuals and training materials related to any of the foregoing.

“SpinCo” shall have the meaning set forth in the introductory paragraph.

“SpinCo Assets” shall have the meaning set forth in Section 2.2.

“SpinCo Books and Records” shall have the meaning set forth in Section 8.1(a).

“SpinCo Common Stock” shall have the meaning set forth in the recitals.

“SpinCo Group” shall mean SpinCo and each Person that is an Affiliate of SpinCo immediately after the Redemption Date or that becomes an Affiliate of SpinCo after the Redemption Date.

“SpinCo Liabilities” shall have the meaning set forth in Section 2.3.

“SpinCo Marks” shall have the meaning set forth in Section 6.2.

“SpinCo Policies” shall mean all Policies, current or past, which are owned or maintained by or on behalf of DG or any of its Affiliates or predecessors, which relate only to the Online Business and are assignable to the SpinCo Group.

“Subsidiary” shall mean any corporation or other organization whether incorporated or unincorporated of which at least a majority of the securities or interests having by the terms thereof ordinary voting power to elect at least a majority of the board of directors or others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by a Person or by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries; provided, however, that no Person that is not directly or indirectly wholly owned by any other Person shall be a Subsidiary of such other Person unless such other Person controls, or has the right, power or ability to control, that Person.

“Tax Matters Agreement” means that certain Tax Matters Agreement by and among DG and SpinCo dated as of the date hereof.

“Television Business” shall have the meaning ascribed in the Merger Agreement.

“Territory” shall mean the world.

“Third Party” shall mean any Person other than DG, any DG Affiliate, SpinCo and any SpinCo Affiliate.

“Third Party Claim” shall have the meaning set forth in Section 5.5(a).

v

“Transition Services Agreement” shall mean that certain Transition Services Agreement between DG and SpinCo to be entered into on or prior to the Redemption Date.

vi

EX-10.1

Exhibit 10.1

TRANSITION SERVICES AGREEMENT

dated as of February 6, 2014

between

SIZMEK INC.

and

DIGITAL GENERATION, INC.

TRANSITION SERVICES AGREEMENT

This TRANSITION SERVICES AGREEMENT (together with the Schedules attached hereto, this “Agreement”) is entered into as of February 6, 2014 (this “Agreement”), by and between Sizmek Inc., a Delaware corporation (“SpinCo”), and Digital Generation, Inc., a Delaware corporation ( “DG”).

RECITALS

WHEREAS, DG and SpinCo have entered enter into that certain Separation and Redemption Agreement dated as of the date hereof (the “Separation Agreement”) providing for, among other things, the contribution by DG to SpinCo of all of the assets and liabilities of its Online Business and all of its cash and all of its working capital, as more fully set forth therein; and

WHEREAS, the Separation Agreement contemplates that the parties hereto will, at the Closing (as defined in the Agreement and Plan of Merger, dated as of August 12, 2013, (the “Merger Agreement”) by and among DG, Extreme Reach, Inc. and Dawn Blackhawk Acquisition Corp.), enter into this Agreement for the provision of certain services by DG for SpinCo and certain services by SpinCo for DG, on the terms and conditions set forth herein.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, for themselves, their successors and permitted assigns, hereby agree as follows:

ARTICLE 1
DEFINITIONS

Section 1.01.  Definitions.

(a)Any capitalized term that is used herein but not defined herein shall have the meaning assigned to such term in the Separation Agreement.

(b)As used in this Agreement, the following terms shall have the following meanings, applicable both to the singular and the plural forms of the terms described:

“DG Systems” means any computer software program or routine or part thereof owned, licensed or provided by DG, its Affiliates or its suppliers on DG’s or any of its Affiliates’ behalf, each as modified, maintained or enhanced from time to time by DG, SpinCo, any of their respective Affiliates or any third party.

“Insolvency Event” means with respect to either party, as applicable, (i) the making by such party of any assignment for the benefit of creditors of all or substantially all of its assets or the admission by such party in writing of its inability to pay all or substantially all of its debts as they become due; (ii) the adjudication of such party as bankrupt or insolvent or the filing by such party of a petition or application to any tribunal for the appointment of a trustee or receiver for such party or any substantial part of the assets of such party; or (iii) the commencement of any

voluntary or involuntary bankruptcy proceedings (and, with respect to involuntary bankruptcy proceedings, the failure of such proceedings to be discharged within 60 days), reorganization proceedings or similar proceeding with respect to such party or the entry of an order appointing a trustee or receiver or approving a petition in any such proceeding.

“SpinCo Systems” means any computer software program or routine or part thereof owned, licensed or provided by SpinCo, its Affiliates or its suppliers on SpinCo’s or any of its Affiliates’ behalf, each as modified, maintained or enhanced from time to time by SpinCo, DG, any of their respective Affiliates or any third party.

“Schedule” means a Schedule attached hereto forming part of this Agreement.

“Service Costs” means costs for the services as provided on any Schedule hereto.

“Service Provider” means (i) SpinCo, in the case of SpinCo Provided Services, and (ii) DG, in the case of DG Provided Services.

“Service Provider Indemnitees” means with respect to any Service Provider, such Service Provider, its Affiliates or any of its or their respective directors, officers, agents, consultants, representatives and/or employees.

“Service Recipient” means (i) DG or its Affiliates, as the case may be, in the case of SpinCo Provided Services, and (i) SpinCo or its Affiliates, as the case may be, in the case of DG Provided Services.

“Service Recipient Indemnitees” means with respect to any Service Recipient, such Service Recipient, its Affiliates or any of its or their respective directors, officers, agents, consultants, representatives and/or employees.

“Systems” means the DG Systems or the SpinCo Systems, individually, or the DG Systems and the SpinCo Systems, collectively, as the context may indicate or require.

(c)Each of the following terms is defined in the Section set forth opposite such term:

Term	Section
Agreement	Preamble
Baseline Period	4.01
Chosen Courts	9.12
Confidential Information	7.01(a)
DG	Preamble
DG Provided Services	2.01(a)
force majeure	9.03
Invoice Date	3.03(a)
Liaison	4.04
Merger Agreement	Recitals
SpinCo	Preamble
SpinCo Provided Services	2.01(a)
Separation Agreement	Recitals
Services	2.01(a)

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ARTICLE 2
SERVICES

Section 2.01.  Provision of Services.

(a)On the terms and subject to the conditions of this Agreement and in consideration of the charges described in Section 3.01 below, SpinCo agrees to provide to DG, or procure the provision to DG of, the transition services (the “SpinCo Provided Services”) set forth on Schedules A-1 through A-6 (referred to herein collectively as Schedule A).  On the terms and subject to the conditions of this Agreement and in consideration of the charges described in Section 3.01 below, DG agrees to provide to SpinCo, or procure the provision to SpinCo of, the transition services (the “DG Provided Services” and, together with the SpinCo Provided Services, the “Services”) set forth on Schedules B-1 through B-5 (referred to herein collectively as Schedule B).

(b)It is understood that (i) the Services to be provided under this Agreement shall only be provided for the purpose of conducting the Service Recipient’s business substantially as it was conducted prior to the Closing Date, and (ii) the Service Provider may satisfy its obligations to provide or procure Services hereunder by causing one or more of its Affiliates to provide or procure such Services, which Affiliates it may change at its discretion from time to time.

(c)Except for the Services expressly contemplated to be provided in accordance with this Section 2.01, neither party shall have any obligation under this Agreement to provide any services to the other party.

(d)If a party requires services from the other party for the purpose of conducting its business as it was conducted prior to the Closing that are not otherwise required to be provided hereunder, the parties will negotiate in good faith the terms under which such services will be provided under this Agreement as “Services”, including appropriate Service Costs therefor.

Section 2.02.  Third Party Licenses and Consents.  The parties shall use commercially reasonable efforts to obtain, and to keep and maintain in effect, all governmental or third party licenses and consents required for the provision of any Service in accordance with the terms of this Agreement; provided that if the Service Provider is unable to obtain any such license or consent, the Service Provider shall promptly notify the Service Recipient in writing and shall, and shall cause its Affiliates to, use commercially reasonable efforts to implement an appropriate alternative arrangement.  The reasonable costs relating to obtaining any such licenses or consents shall be deemed to be Service Costs.  If any such license, consent or alternative arrangement is not available despite the commercially reasonable efforts of the Parties, Service Provider shall not be required to provide the affected Services.

Section 2.03.  Third Party Providers.  If Service Provider receives written notice from any third party service provider that such Person intends to terminate a service pursuant to which the Service Provider provides a Service to the Service Recipient, then the Service Provider shall provide a copy of such written notice to the Service Recipient and shall use commercially

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reasonable efforts to secure the continued provision of that Service from such third party or an alternative service provider, the reasonable costs of which shall be deemed to be Service Costs.  If the Service Provider is unable to secure the continued provision of that Service from such third party or an alternative service provider, Service Provider shall not be required to provide the affected Service.

Section 2.04.  Cooperation.  The parties agree to cooperate in good faith in providing for an orderly transition of Services to the Service Recipient or a successor service provider designated by Service Recipient.

Section 2.05.  No Licenses.  No licenses are granted to any party (including by implication, estoppel or otherwise) except as expressly set forth in this Agreement.

ARTICLE 3
SERVICE COSTS; OTHER CHARGES

Section 3.01.  Service Costs Generally.  The charges for the Services to be provided by a party hereunder shall be such party’s Service Costs.

Section 3.02.  Taxes.  Each Service Recipient shall pay all applicable sales or use taxes incurred with respect to provision of applicable Services.  Such taxes shall be incremental to other payments or charges identified in this Agreement.  All sums payable under this Agreement shall be paid free and clear of all deductions or withholdings unless the deduction or withholding is required by Law, in which event the amount of the payment due from the party required to make such payment (other than amounts of interest) shall be increased to an amount which after any withholding or deduction leaves an amount equal to the payment which would have been due if no such deduction or withholding had been required.

Section 3.03.  Invoicing and Settlement.

(a)Unless any Schedule hereto indicates otherwise or the parties agree in writing to a different arrangement following the Closing, each Service Provider shall invoice the applicable Service Recipient on a monthly basis in arrears for the Service Costs (the date of delivery of such invoice, the “Invoice Date”).

(b)Each Service Recipient shall pay each undisputed invoice within 15 days after each Invoice Date by wire transfer of immediately available funds payable to the order of Service Provider to such account(s) designated by Service Provider.  Late payments shall be subject to an interest charge equal to the lesser of (i) an annual rate of eighteen percent (18%) or (ii) the highest rate of interest allowable by applicable law.

(c)Effective upon closing under the Merger Agreement, SpinCo will purchase and take title to laptops used by 25 SpinCo employees originally purchased as part of the Television Business, and DG will purchase and take title to computer laptops used by 9 DG employees originally purchased as part of the Online Business, and SpinCo shall pay to DG $15,000 within five (5) business days in settlement of such purchases by each party.

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ARTICLE 4
THE SERVICES

Section 4.01.  Standards of Service.

(a)Unless any Schedule hereto indicates otherwise or the parties agree in writing to a different arrangement following the Closing, the level or volume of any specific Service required to be provided hereunder shall be at a level or volume consistent in all material respects with the level or volume, as the case may be, of such specific Service as utilized by the applicable Service Recipient during the twelve-month period prior to the date hereof (the “Baseline Period”).

(b)Unless any Schedule hereto indicates otherwise or the parties agree in writing to a different arrangement following the Closing, the manner, nature, quality and standard of care applicable to the delivery by the applicable Service Provider of the Services hereunder shall be substantially the same as that of similar services provided by or to the Service Recipient during the Baseline Period.

(c)No Service Provider shall have such obligation to provide any Services hereunder in respect of any business, assets or properties not forming part of the Service Recipient as of the date hereof.

Section 4.02.  Changes to Services.  It is understood and agreed that each Service Provider may from time to time modify or change the manner, nature, quality and/or standard of care of any Service provided to Service Recipient to the extent such Service Provider is making a similar change in the performance of such services for such Service Provider and its Affiliates and provided that any such modification, change or enhancement will not reasonably be expected to materially affect such Service or the business of the Service Recipient.  Each Service Provider shall furnish to Service Recipient substantially the same notice (in content and timing), if any, as such Service Provider furnishes to its own organization with respect to such modifications or changes.

Section 4.03.  Management of Services By Service Provider.  Except as may otherwise be expressly provided in this Agreement, the management of and control over the provision of the Services by the applicable Service Provider shall reside solely with such Service Provider.  Without limiting the terms of this Agreement, each Service Provider shall have the right in its sole discretion to choose the personnel, methodology, systems, applications and third party providers it utilizes in the provision of such Services.  The provision, use of and access to the Services shall be subject to (a) the applicable Service Provider’s business, operational, technical and security environment, standards, policies and procedures as in effect from time to time, (b) applicable Law and (c) the terms of this Agreement.

Section 4.04.  Liaisons.  Each party shall designate one representative to act as such party’s primary contact person in connection with the Services (each, a “Liaison”).  The Liaisons will oversee the implementation and ongoing operation of this Agreement and shall attempt in good faith to resolve disputes between the parties.  The parties have designated their respective initial Liaisons and provided contact information therefor on Schedule C.  The parties shall ensure that their respective Liaisons shall meet in person or telephonically at such times as are

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reasonably requested by DG or SpinCo to review and discuss the status of, and any issues arising in connection with, the Services or this Agreement.  Each party may re-designate its Liaison(s) from time to time upon written notice (including by email) to the other party’s Liaisons.

ARTICLE 5
DISCLAIMER, LIABILITY AND INDEMNIFICATION

Section 5.01.  EXCLUSION OF WARRANTIES.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS-IS” WITH NO WARRANTIES, AND EACH SERVICE PROVIDER EXPRESSLY EXCLUDES AND DISCLAIMS ANY WARRANTIES UNDER OR ARISING AS A RESULT OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY OTHER WARRANTY WHATSOEVER.

Section 5.02.  Limitation of Liability.

(a)Except for the indemnity obligations set forth in Sections 5.03, 5.04 and 6.03, neither DG nor SpinCo shall have any liability, whether direct or indirect, in contract or tort or otherwise, for or in connection with the Services rendered or to be rendered by or on behalf of any Service Provider pursuant to this Agreement, the transactions contemplated hereby or any actions or inactions by or on behalf of any Service Provider in connection with any such Services or the transactions contemplated hereby, except to the extent any damages have resulted from such Service Provider’s gross negligence or willful misconduct or such Service Provider’s failure to comply with Laws applicable to it or them in the conduct of their business in the ordinary course; provided, that no action taken (whether before or after the date hereof) by any Person that is expressly contemplated by this Agreement or any Schedule hereto shall be deemed to be gross negligence or willful misconduct or a failure to comply with Laws applicable to it.

(b)Notwithstanding the provisions of Section 5.02(a), neither DG nor SpinCo shall be liable for any special, indirect, incidental, consequential or punitive damages of any kind whatsoever in any way due to, resulting from or arising in connection with any of the Services or the performance of or failure to perform any obligations under this Agreement.  This disclaimer applies without limitation (i) to claims arising from the provision of the Services or any failure or delay in connection therewith, (ii) to claims for lost profits or opportunities, (iii) regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise, and (iv) regardless of whether such damages are foreseeable or whether DG or SpinCo, as applicable, or any of its Affiliates has been advised of the possibility of such damages.

Section 5.03.  Indemnification of Service Provider.  Each Service Recipient shall indemnify, defend and hold harmless the Service Provider Indemnitees from and against any and all Liabilities and related losses of the Service Provider Indemnitees relating to, arising out of or resulting from the Services rendered or to be rendered by or on behalf of any of the Service Provider Indemnitees pursuant to this Agreement, the transactions contemplated hereby or any actions or inactions by or on behalf of any of the Service Provider Indemnitees in connection with any such Services or transactions; provided that Service Recipient shall not be responsible

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for any Liabilities resulting from a Service Provider’s gross negligence or willful misconduct or Service Provider’s failure to comply with Laws applicable to it in the conduct of its business in the ordinary course; provided, further, that no action taken (whether before or after the date hereof) by any Person that is expressly contemplated by this Agreement or any Schedule hereto shall be deemed to be gross negligence or willful misconduct or a failure to comply with Laws applicable to it.

Section 5.04.  Indemnification of Service Recipient.  Each Service Provider agrees to indemnify and hold harmless the each Service Recipient Indemnitee from and against any Liabilities incurred in investigating, preparing, or defending any Action, in each case solely to the extent such Liabilities have arisen out of such Service Provider’s gross negligence or willful misconduct or such Service Provider’s failure to comply with Laws applicable to it in the conduct of its business in the ordinary course; provided, that no action taken (whether before or after the date hereof) by any Person that is expressly contemplated by this Agreement or any Schedule hereto shall be deemed to be gross negligence or willful misconduct or a failure to comply with Laws applicable to it.

Section 5.05.  Indemnification as Exclusive Remedy; Limit on Indemnification.  The indemnification provisions of this Article 5 set forth the exclusive remedy for money damages for breach of this Agreement and any matters relating to this Agreement.  In no case shall the liability under Section 5.03 or 5.04 of any Service Recipient or Service Provider, as the case may be, exceed the amount of Service Costs paid by a Service Recipient, in the case of indemnification under Section 5.04, or Service Costs received by a Service Provider, in the case of indemnification under Section 5.05.

ARTICLE 6
TERM AND TERMINATION

Section 6.01.  Term.  Unless terminated earlier or except as expressly set forth in Schedule A or Schedule B, the term of this Agreement with respect to each of the Services shall commence on the Closing Date and shall cease on 270 days after the Closing Date.  This Agreement shall terminate in its entirety upon the expiration of the terms (as determined pursuant to the preceding sentence) of all Services; provided that the provisions of Articles 5, 6, 7 and 9 shall survive any such termination indefinitely.

Section 6.02.  Termination.

(a)Except as otherwise provided in any Schedule hereto, any Service Recipient may from time to time terminate this Agreement with respect to one or more of the Services it receives, in whole or in part, upon giving at least 30 days’ prior notice to Service Provider.

(b)Either party may terminate this Agreement or any Service if (i) the other party shall have failed to perform any of its material obligations with respect to such Service under this Agreement, (ii) the terminating party has notified the other party in writing of such failure and (iii) such failure (x) shall have continued uncured for a period of 15 days after receipt of written notice of such failure or (y) is incapable of remedy.

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(c)Either party may terminate this Agreement at any time with immediate effect upon serving written notice upon the other party if the other party suffers an Insolvency Event.

Section 6.03.  Effect of Termination.

(a)Other than as required by Law, upon termination of any Service pursuant to Section 6.02, the applicable Service Provider shall have no further obligation to provide the terminated Service.  Notwithstanding any termination, Service Recipient shall remain liable to Service Provider for (i) Service Costs and other fees owed and payable in respect of Services provided to Service Recipient prior to the effective date of the termination and (ii) in the case of a termination under Section 6.02(a) or (b), any costs incurred by Service Provider between the time of such termination and the time the provision of the relevant Service(s) would have terminated absent such early termination to the extent such Service Provider cannot avoid the incurrence of such costs using commercially reasonable efforts.

(b)Termination of this Agreement as provided for herein shall not prejudice or affect any rights or remedies which shall have accrued to either party, or any Service Provider Indemnitee or Service Recipient Indemnitee of either party.

ARTICLE 7
ADDITIONAL AGREEMENTS

Section 7.01.  Confidential Information

(a)The parties hereby covenant and agree to keep confidential all Confidential Information relating to the other party or any of such other party’s Affiliates.  Without limiting the generality of the foregoing, each party shall cause its employees and agents to exercise the same level of care with respect to Confidential Information relating to the other party or any of its Affiliates as it would with respect to proprietary information, materials and processes relating to itself or any of its Affiliates.  “Confidential Information” shall mean all information, materials and processes relating to a party or any Affiliate of such party obtained or observed by the other party or any Affiliate of such other party at any time (whether prior to or after the date hereof) in any format whatsoever (whether orally, visually, in writing, electronically or in any other form) arising out of the rendering or receipt of Services hereunder (or preparations for the same or for the termination thereof) and shall include, but not be limited to, economic and business information or data, business plans, computer software and information relating to employees, vendors, customers, products, financial performance and projections, processes, strategies and systems but shall not include (i) information which is or becomes generally available to the public other than by release in violation of the provisions of this Section 7.01(a), (ii) information which is or becomes available on a non-confidential basis to a party from a source other than the other party to this Agreement, provided the party in question reasonably believes that such source is not or was not bound by a legal or contractual obligation to the other party or one of its Affiliates to hold such information confidential and (iii) information acquired or developed independently by a party without use or reference to otherwise Confidential Information of the other party.  Except with the prior written consent of the other party, each party will use the other party’s Confidential Information only in connection with the performance of its obligations hereunder and each party shall use commercially reasonable efforts to restrict access to the other

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party’s Confidential Information to those employees of such party requiring access for the purpose of providing or receiving Services hereunder.  Notwithstanding any provision of this Section 7.01(a) to the contrary, a party may disclose such portion of the Confidential Information relating to the other party to the extent, but only to the extent, the disclosing party reasonably believes that such disclosure is required under Law or the rules of a Governmental Authority; provided that if permissible under Law and practicable, the disclosing party shall first notify the other party hereto of such requirement and allow such party a reasonable opportunity to seek a protective order or other appropriate remedy to prevent such disclosure.  The parties acknowledge that money damages would not be a sufficient remedy for any breach of the provisions of this Section 7.01(a) and that the non-breaching party shall be entitled to equitable relief in a court of law in the event of, or to prevent, a breach of this Section 7.01(a).

Section 7.02.  Ownership of Assets.

(a)DG Systems and any and all enhancements thereof or improvements thereto are and shall remain the sole exclusive property of DG or its Affiliates and/or their suppliers as applicable.

(b)SpinCo Systems and any and all enhancements thereof or improvements thereto are and shall remain the sole exclusive property of SpinCo or its Affiliates and/or their suppliers as applicable.

Section 7.03.  Security.  Except as otherwise set forth on the Schedules, each party, its Affiliates and their respective employees, authorized agents and subcontractors shall only use or access such other party’s Systems, premises or data to the extent such Person is authorized by the other party or pursuant to the terms hereof.  Except as otherwise set forth on the Schedules, each party, its Affiliates and their employees, authorized agents and subcontractors shall comply with the other party’s policies and procedures in relation to the use and access of the other party’s Systems, provided that they do not conflict with the terms of this Agreement and further provided that to the extent such policies and procedures of Service Recipient make the provision of a given Service impracticable, Service Provider will be relieved of the obligation to provide such Service.

Section 7.04.  Compliance with Law.  Each party shall at all times fully comply with all Law to which such party and its Affiliates (to the extent such Affiliates are engaged in the receipt or provision of Services) is subject in connection with the receipt or provision of Services hereunder, as applicable.

Section 7.05.  Labor Matters.  Nothing in this Agreement is intended to transfer the employment of employees engaged in the provision of any Service from one party to the other.  All employees and representatives of a party and any of its Affiliates will be deemed for all compensation, employee benefits, tax and social security contribution purposes to be employees or representatives of such party or its Affiliates (or their subcontractors) and not employees or representatives of the other party or any of its Affiliates (or their subcontractors).  In providing the Services, such employees and representatives of Service Provider and its Affiliates (or their subcontractors) will be under the direction, control and supervision of Service Provider or its Affiliates (or their subcontractors) and not of Service Recipient or its Affiliates.

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Section 7.06.  Record Retention.  Each party shall take reasonable steps to preserve and maintain complete and accurate accounts, books, and records of and supporting documentation relating to the Services provided hereunder, which records shall be retained by such party and/or its Affiliates for the period of time specified in such party’s record retention policies and procedures (which are governed by applicable Law and good industry practices).

Section 7.07.  Manual Access.  SpinCo shall have access to the online drives of the Company’s operating and management information systems for a period of five (5) Business Days from the date hereof to complete the manual deletion of Online Business data, under the reasonable supervision of a Company information technology supervisor.

ARTICLE 8
REPRESENTATIONS AND WARRANTIES

Section 8.01.  Representations and Warranties of DG.  DG represents and warrants to SpinCo as of the date hereof that:

(a)The execution, delivery and performance by DG of this Agreement are within DG’s corporate powers and have been duly authorized by all necessary corporate action on the part of DG.  This Agreement constitutes a valid and binding agreement of DG enforceable against DG in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity).

(b)The execution, delivery and performance by DG of this Agreement require no action by or in respect of, or filing with, any Governmental Authority other than any such action or filing that has already been taken or made or as to which the failure to make or obtain would not reasonably be expected to materially impede or delay the performance by DG of its obligations hereunder.

(c)The execution, delivery and performance by DG of this Agreement do not and will not (i) violate the certificate of incorporation or bylaws of DG, (ii) violate any Law or (iii) constitute a default under or give rise to any right of termination, cancellation or acceleration of any right or obligation under any provision of any agreement or other instrument binding upon DG, with such exceptions, in the case of clauses (ii) and (iii), as would not reasonably be expected to materially impede or delay the performance by DG of its obligations hereunder.

Section 8.02.  Representations and Warranties of SpinCo.  SpinCo represents and warrants to DG as of the date hereof that:

(a)The execution, delivery and performance by SpinCo of this Agreement are within SpinCo’s corporate or other applicable powers and have been duly authorized by all necessary corporate or other applicable action on the part of SpinCo.  This Agreement constitutes a valid and binding agreement of SpinCo enforceable against SpinCo in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity).

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(b)The execution, delivery and performance by SpinCo of this Agreement require no action by or in respect of, or filing with, any Governmental Authority other than any such action or filing that has already been taken or made or as to which the failure to make or obtain would not reasonably be expected to materially impede or delay the performance by SpinCo of its obligations hereunder.

(c)The execution, delivery and performance by SpinCo of this Agreement do not and will not (i) violate the certificate of incorporation or bylaws or other equivalent organizational documents of SpinCo, (ii) violate any Law or (iii) constitute a default under or give rise to any right of termination, cancellation or acceleration of any right or obligation under any provision of any agreement or other instrument binding upon SpinCo, with such exceptions, in the case of each of clauses (ii) and (iii), as would not reasonably be expected to materially impede or delay the performance by SpinCo of its obligations hereunder.

ARTICLE 9
MISCELLANEOUS

Section 9.01.  No Agency; Independent Contractor Status.  Nothing in this Agreement shall constitute or be deemed to constitute a partnership or joint venture between the parties hereto or constitute or be deemed to constitute any party the agent or employee of the other party for any purpose whatsoever and neither party shall have authority or power to bind the other or to contract in the name of, or create a liability against, the other in any way or for any purpose.  Each party hereto acknowledges and agrees that the other party is an independent contractor in the performance of each and every part of this Agreement and nothing herein shall be construed to be inconsistent with this status.  Subject to the terms and conditions of this Agreement, each party shall have the authority to select the means, methods and manner by which any Service is performed by it.

Section 9.02.  Subcontractors.  Each party may hire or engage one or more subcontractors to perform all or any of its obligations under this Agreement; provided that, (i) such party shall use the same degree of care in selecting any subcontractors as it would if such subcontractor was being retained to provide similar services to it and (ii) such party shall in all cases shall remain responsible for ensuring that obligations with respect to the standards of services set forth in this Agreement are satisfied with respect to any Service provided by a subcontractor hired or engaged by it.

Section 9.03.  Force Majeure.

(a)For purposes of this Section 9.03, “force majeure” means an event beyond the reasonable control of either party, which by its nature was not foreseen by such party, or, if it was foreseen, was not reasonably avoidable, and includes without limitation, acts of God, storms, floods, riots, fires, sabotage, civil commotion or civil unrest, interference by civil or military authorities, threat, declaration, continuation, escalation or acts of war (declared or undeclared) or acts of terrorism, failure or shortage of energy sources, raw materials or components, strike, walkout, lockout or other labor trouble or shortage, delays by unaffiliated suppliers or carriers, and acts, omissions or delays in acting by any Governmental Authority or the other party.

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(b)Without limiting the generality of Section 5.02(a), neither party shall be under any liability for failure to fulfill any obligation under this Agreement, so long as and to the extent to which the fulfillment of such obligation is prevented, frustrated, hindered, or delayed as a consequence of circumstances of force majeure; provided that (i) such party shall have used commercially reasonable efforts to minimize to the extent practicable the effect of force majeure on its obligations hereunder and (ii) nothing in this Section 9.03 shall be construed to require the settlement of any strike, walkout, lockout or other labor dispute on terms which, in the reasonable judgment of the affected party, are contrary to its interests.  It is understood that the settlement of a strike, walkout, lockout or other labor dispute will be entirely within the discretion of the affected party.  The party affected by the force majeure event shall notify the other party of that fact as soon as practicable.

Section 9.04.  Entire Agreement.  This Agreement, together with the Merger Agreements and the other Spin-off Agreements (as defined in the Merger Agreement including all schedules and exhibits hereto and thereto), constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, both oral and written, between the parties with respect to the subject matter hereof.  No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the parties hereto and their respective successors and permitted assigns.  No licenses are granted to any party (including by implication, estoppel or otherwise) except as expressly set forth in this Agreement.

Section 9.05.  Notices.  Any notice required to be given hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee’s location on any Business Day after 5:00 p.m.  (addressee’s local time) shall be deemed to have been received at 9:00 a.m. (addressee’s local time) on the next Business Day), by reliable overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows (or at such other address for a party as shall be specified in a notice given in accordance with this Section 9.05):

if to DG:

c/o Extreme Reach, Inc.
75 2nd AvenueNeedham, MA  02494
Attention: John Roland, President and CEO
Facsimile: (877) 484-8836

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

Pierce Atwood LLP100 Summer Street, Suite 2250Boston, MA  02110
Attention: Timothy C. Maguire, Esq.
Facsimile:  (617) 824-2020

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if to SpinCo:

Sizmek Inc.
750 West John Carpenter Freeway, Suite 700
Irving, TX 75039
Attention: Craig Holmes, Chief Financial Officer
Facsimile: (972) 581-2100

with a copy to:

Sean N. Markowitz
General Counsel and Secretary
Sizmek Inc.

750 West John Carpenter Freeway, Suite 700
Irving, TX 75039
Facsimile: (972) 581-2100

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

Latham & Watkins LLP
555 Eleventh Street, N.W., Suite 1000
Washington, D.C. 20004-1304
Attention: William P. O’Neill
Facsimile: (202) 637-2201
E-mail: william.o’neill@lw.com

For the avoidance of doubt, copies delivered solely to counsel shall not constitute notice.

Section 9.06.  Interpretation; Certain Definitions.  When a reference is made in this Agreement to an Article, Section or Exhibit, such reference shall be to an Article or Section of, or an Exhibit to, this Agreement, unless otherwise indicated.  The table of contents and headings for this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.”  The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein.  The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term.  Any statute defined or referred to herein or in any agreement or instrument that is referred to herein means such statute as from time to time amended, modified or supplemented, including (in the case of statutes) by succession of comparable successor statutes.  References to a Person are also to its permitted successors and assigns.

Section 9.07.  Severability.  If any term or other provision of this Agreement is invalid,

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illegal or incapable of being enforced by any rule of Law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the Separation is not affected in any manner materially adverse to any party.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the Separation be consummated as originally contemplated to the fullest extent possible.

Section 9.08Further Assurances.  In addition to and without limiting the actions specifically provided in this Agreement, each of the Parties hereto shall use its reasonable best efforts, on and after the date hereof, to take, or cause to be taken, all actions, and to do, or cause to be done, all things, reasonably necessary, proper or advisable under applicable Law to consummate and make effective the transactions contemplated by this Agreement.  Without limiting the foregoing, on and after the date hereof, each Party hereto shall cooperate with the other Party, and without any further consideration, but at the expense of the requesting Party, to execute and deliver, or use its reasonable best efforts to cause to be executed and delivered, all instruments, including instruments of conveyance, assignment and transfer, and to make all filings with, and to obtain all consents, approvals or authorizations of, any Governmental Authority or any other Person under any permit, license, agreement, indenture or other instrument, and to take all such other actions as such Party may reasonably be requested to take by the other Party hereto from time to time, consistent with the terms of this Agreement, in order to effectuate the provisions and purposes of this Agreement.  From and after the date hereof, if there is any asset that is used primarily in the Television Business or the Online Business that is critical to the operation of the other, the parties shall negotiate in good faith to make such asset or the benefit thereof available to the other pursuant to this Agreement or such other arrangement as the parties may in good faith agree.

Section 9.09Assignment.  Neither this Agreement nor any rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of Law or otherwise) without the prior written consent of the other parties hereto, except that either party upon written notice to the other, may assign, in its sole discretion, any of or all its rights, interests and obligations under this Agreement to any direct or indirect wholly- owned subsidiary or affiliate of the assigning party, but no such assignment shall relieve the assigning party of any of its obligations hereunder.

Section 9.10.Entire Agreement; No Third-Party Beneficiaries.  Except for the Subsidiaries and Affiliates of a Service Recipient or Service Provider with respect to such Services this Agreement (including the Schedules) is not intended to and shall not confer upon any person other than the parties hereto any rights or remedies hereunder.  The Parties acknowledge and agree that the provisions of Article IX (Dispute Resolution) and Section 12.13 (Specific Performance) of the Separation Agreement shall apply hereto mutatis mutandis.

Section 9.11Governing Law.  This Agreement shall be governed by, and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of laws provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware.

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Section 9.12Consent to Jurisdiction.  Subject to the last sentence of Section 9.10, the Parties hereby irrevocably submit to the personal jurisdiction of the Court of Chancery of the State of Delaware, or to the extent such Court does not have subject matter jurisdiction, the Superior Court of the State of Delaware (the “Chosen Courts”) solely in respect of the interpretation and enforcement of the provisions of this Agreement and of the documents referred to in this Agreement, and in respect of the transactions contemplated hereby and thereby, or the negotiation, execution or performance hereof, and hereby waive, and agree not to assert, as a defense in any action, suit or proceeding for the interpretation or enforcement hereof or of any such document, that it is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in the Chosen Courts or that the Chosen Courts are an inconvenient forum or that the venue thereof may not be appropriate, or that this Agreement or any such documentation may not be enforced in or by such Chosen Courts, and the parties hereto irrevocably agree that all claims, actions, suits and proceedings or their causes of action (whether at Law, in contract, in tort or otherwise) that may be based upon, arising out of or relating to this Agreement or any of the transactions contemplated b this Agreement, or the negotiation, execution or performance hereof shall be heard and determined exclusively in the Chosen Courts.  The Parties hereby consent to and grant any such Chosen Courts jurisdiction over the person of such parties and, to the extent permitted by law, over the subject matter of such dispute and agree that mailing of process or other papers in connection with any such action, suit or proceeding in the manner provided in Section 9.9 or in such other manner as may be permitted by law shall be valid, effective and sufficient service thereof.

(b)Each of SpinCo and DG irrevocably consents to the service of the summons and complaint and any other process in any other action or proceeding relating to the transactions contemplated by this Agreement, on behalf of itself or its property, by personal delivery of copies of such process to such party.  Nothing in this Section 9.12 shall affect the right of any party to serve legal process in any other manner permitted by Law.

Section 9.13Counterparts.  This Agreement may be executed and delivered (including by facsimile transmission) in two (2) or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed and delivered shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.

Section 9.14No Strict Construction.  The parties hereto acknowledge that this Agreement has been prepared jointly by them and shall not be strictly construed against any party hereto.

Section 9.15WAIVER OF JURY TRIAL.  EACH OF BUYER AND THE COMPANY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF BUYER OR THE COMPANY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF.

Section 9.15Amendments.  This Agreement may not be modified or amended except by an agreement in writing signed by each of the Parties.

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IN WITNESS WHEREOF, SpinCo and DG have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.

SIZMEK INC.
By:	/s/ Neil Nguyen
Name:		Neil Nguyen
Title:		President and Chief Executive Officer
DIGITAL GENERATION, INC.
By:	/s/ Craig Holmes
Name:		Craig Holmes
Title:		Chief Financial Officer

[Signature Page to Transition Services Agreement]

EX-10.2

Exhibit 10.2

TAX MATTERS AGREEMENT

This Tax Matters Agreement (this “Agreement”), dated as of February 6, 2014, is entered into by and between Digital Generation, Inc., a Delaware corporation (“DG”), and Sizmek Inc., a Delaware corporation (“SpinCo” and together with DG, the “Parties”).  Capitalized terms used in this Agreement and not otherwise defined herein shall have the meanings ascribed to such terms in the Separation and Redemption Agreement, dated as of the date hereof, by and between DG and SpinCo (the “Separation Agreement”).

RECITALS

WHEREAS, DG, acting through its direct and indirect subsidiaries, currently conducts both the Television Business and the Online Business;

WHEREAS, as of the date hereof, DG and its direct and indirect domestic subsidiaries are members of an Affiliated Group of which DG is the common parent (“Pre-Spin Group”);

WHEREAS, DG has entered into that Agreement and Plan of Merger dated as of August 12, 2013, by and among Extreme Reach, Inc., a Delaware corporation (“Buyer”), Dawn Blackhawk Acquisition Corp., a Delaware corporation (“Acquisition Sub”) and DG (the “Merger Agreement”) pursuant to which Acquisition Sub shall merge with and into DG (the “Merger”), with DG being the Surviving Corporation in the Merger, subject to the terms and conditions set forth in the Merger Agreement;

WHEREAS, Buyer and Acquisition Sub desire to acquire from DG, and DG desires to transfer to Buyer and Acquisition Sub, only the Television Business under the terms and conditions of the Merger Agreement, as more fully described in the Separation Agreement and the other Ancillary Agreements;

WHEREAS, pursuant to the Separation Agreement, among other things, DG will transfer to SpinCo, a newly-formed wholly-owned subsidiary of DG, all of the SpinCo Assets and in exchange, SpinCo will issue to DG all of the shares of SpinCo Common Stock (the “Contribution”);

WHEREAS, on the Redemption Date, immediately prior to the Effective Time of the Merger, DG will distribute all of the issued and outstanding shares of SpinCo Common Stock on a pro rata basis to holders of DG Common Stock in partial redemption thereof (the “Redemption”);

WHEREAS, the Parties intend that the Contribution constitute a transfer described in Section 351(a) of the Code (the “Contribution Tax Treatment”);

WHEREAS, the Parties intend that the Redemption, as part of an integrated transaction that includes the Merger, constitute a taxable distribution in partial payment in exchange for DG Common Stock described in Section 302(b) of the Code (the “Redemption Tax Treatment”); and

WHEREAS, in contemplation of the Separation, pursuant to which the SpinCo Group will cease to be members of the Pre-Spin Group if (but only if) the Redemption occurs, the

Parties have determined to enter into this Agreement to set forth their rights and obligations with respect to certain tax matters.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:

ARTICLE I.

DEFINITIONS

1.01GENERAL.  As used in this Agreement, the following terms shall have the following meanings:

“Affiliate” shall have the meaning set forth in the Separation Agreement.

“Affiliated Group” shall mean an affiliated group of corporations within the meaning of Section 1504(a)(1) of the Code that files a consolidated Tax Return for U.S. federal income tax purposes.

“Agreement” shall have the meaning set forth in the preamble to this Agreement.

“Ancillary Agreements” shall mean the Ancillary Agreements as set forth in the Separation Agreement.

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

“Contribution” shall have the meaning set forth in the recitals.

“Contribution Tax Treatment” shall have the meaning set forth in the recitals.

“Deferred Items” shall have the meaning set forth in Section 2.03(a).

“DG” shall have the meaning set forth in the preamble to this Agreement.

“DG Filed Tax Return” shall have the meaning set forth in Section 2.01(c).

“DG Group” shall mean DG, Viewpoint Japan Co. Ltd., DG International Holding Corp. and DG Fast Channel Canada, ULC.

“DG Indemnitees” shall have the meaning set forth in the Separation Agreement.

“DG Taxes” shall have the meaning set forth in Section 2.03(b).

“Final Determination” shall mean a determination within the meaning of Section 1313 of the Code or any similar provision of state or local Tax law.

“Final Income Tax Returns” shall have the meaning set forth in Section 2.01(b).

“Governmental Authority” shall have the meaning set forth in the Separation Agreement.

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“Group” shall mean the DG Group or the SpinCo Group.

“Indemnified Party” shall have the meaning set forth in Section 4.01.

“Indemnifying Party” shall have the meaning set forth in Section 4.01.

“Liabilities” shall have the meaning set forth in the Separation Agreement.

“Merger Agreement” shall have the meaning set forth in the recitals.

“Online Business” shall have the meaning set forth in the Separation Agreement.

“Parties” shall have the meaning set forth in the preamble to this Agreement.

“Person” shall have the meaning set forth in the Separation Agreement.

“Post-Redemption Period” shall mean any taxable period (or portion thereof) beginning after the Redemption Date.

“Pre-Redemption Period” shall mean any taxable period (or portion thereof) that ends on or before the Redemption Date.

“Pre-Spin Group” shall have the meaning set forth in the recitals.

“Redemption” shall have the meaning set forth in the recitals.

“Redemption Date” shall mean the meaning set forth in the Separation Agreement.

“Redemption Tax Treatment” shall have the meaning set forth in the recitals.

“Separation Agreement” shall have the meaning set forth in the preamble to this Agreement.

“SpinCo” shall have the meaning set forth in the preamble to this Agreement.

“SpinCo Assets” shall have the meaning set forth in the Separation Agreement.

“SpinCo Common Stock” shall have the meaning set forth in the Separation Agreement.

“SpinCo Filed Tax Return” shall have the meaning set forth in Section 2.01(b).

“SpinCo Group” shall mean SpinCo and the SpinCo Subsidiaries.

“SpinCo Indemnitees” shall have the meaning set forth in the Separation Agreement.

“SpinCo Taxes” shall have the meaning set forth in Section 2.03(a).

“Straddle Period” shall have the meaning set forth in Section 2.03(c).

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“Subsidiary” shall have the meaning set forth in the Separation Agreement.

“Taxes” shall mean any and all federal, state, local or foreign taxes (together with any and all interest, penalties and additions to tax), imposed by any Governmental Authority including, without limitation, all income, franchise, windfall or other profits, gross receipts, property, sales, use, capital stock, payroll, employment, social security, workers’ compensation, unemployment compensation, net worth, excise, withholding, ad valorem, stamp, transfer, value added, gains, license, registration, documentation customs’ duties, tariffs, alternative or add-on minimum, or estimated taxes and including any obligations to indemnify or otherwise assume or succeed to the Tax liability of any other Person.

“Tax Claim” shall have the meaning set forth in Section 5.01.

“Tax Return” shall mean any and all returns, declarations, reports, information statements, or other documents filed or required to be filed with any Governmental Authority with respect to Taxes, including any amendments or supplements of any of the foregoing.

“Television Business” shall have the meaning set forth in the Separation Agreement.

“Transaction-Related Expenses” shall have the meaning set forth in Section 2.01(d).

1.02REFERENCES; INTERPRETATION.  References in this Agreement to 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.  The terms “hereof,” “herein,” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement, the Separation Agreement or the applicable Ancillary Agreement as a whole (including all of the Schedules and Exhibits hereto and thereto) and not to any particular provision of this Agreement, the Separation Agreement or such Ancillary Agreement.  Article, Section, Exhibit, Schedule and Appendix references are to the Articles, Sections, Exhibits, Schedules and Appendices to this Agreement, the Separation Agreement or the applicable Ancillary Agreement unless otherwise specified.  The word “including” and words of similar import when used in this Agreement, the Separation Agreement or the applicable Ancillary Agreement shall mean “including, without limitation,” unless the context otherwise requires or unless otherwise specified.  The word “or” shall not be exclusive.  Any definition of or reference to any statute shall be construed as referring also to any rules and regulations promulgated thereunder.

ARTICLE II.

TAX RETURNS AND TAX PAYMENTS

2.01PREPARATION AND FILING OF TAX RETURNS.

(a)Pre-Redemption Filings.  Prior to the Redemption, DG shall prepare or cause to be prepared and timely file (taking into account applicable extensions) all Tax Returns that include any member of the DG Group or the SpinCo Group that are required to be filed on or before the Redemption Date.

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(b)Post-Redemption Filings by SpinCo.  Following the Redemption, SpinCo shall prepare or cause to be prepared and timely file (taking into account applicable extensions), (i) all Tax Returns that include any member of the DG Group or the SpinCo Group that are required to be filed after the Redemption Date for a Pre-Redemption Period, including the U.S. federal consolidated income Tax Return for the Pre-Spin Group and any all state, local and foreign income Tax Returns (whether filed on a separate or consolidated, combined, unitary or other group basis) for the taxable period that includes the Redemption Date and any Tax Returns for any Straddle Periods and (ii) all Tax Returns that include any member of the SpinCo Group for a Post-Redemption Period (each, a “SpinCo Filed Tax Return”).  SpinCo shall deliver the final U.S. federal consolidated income Tax Return (and any state and local income Tax Returns for a taxable period that ends on the Redemption Date) for the Pre-Spin Group or its members (the “Final Income Tax Returns”) to DG for its review and comment within thirty (30) days prior to the filing of such Tax Returns.  To the extent DG is responsible for any portion of the Taxes reported on a Straddle Period Tax Return, SpinCo shall deliver such Tax Return (or the relevant portion thereof) to DG for its review and comment within a reasonable period of time prior to the due date for filing such Tax Return; provided, that Straddle Period Tax Returns relating to income Taxes shall be delivered no later than thirty (30) days before the due date for filing such Tax Returns.  SpinCo shall incorporate any reasonable comments provided in writing by DG to SpinCo with respect to any such Straddle Period Tax Returns.  Each member of the DG Group hereby irrevocably authorizes and designates SpinCo as its agent, coordinator and administrator for the purpose of taking any and all actions necessary or incidental to the filing of any such SpinCo Filed Tax Returns and, except as otherwise provided herein, for the purpose of making payments to, or collecting refunds from, any Governmental Authority in respect of a SpinCo Filed Tax Return.

(c)Post-Redemption Filings by DG.  Following the Redemption, DG shall prepare or cause to be prepared and timely file (taking into account applicable extensions), all Tax Returns that include any member of the DG Group that are required to be filed after the Redemption Date, except for any such Tax Return that is a SpinCo Filed Tax Return (each, a “DG Filed Tax Return”).

(d)Manner of Preparation.  All SpinCo Filed Tax Returns and DG Filed Tax Returns shall be prepared in a manner consistent with (1) the Contribution Tax Treatment, (2) the Redemption Tax Treatment, and (3) past practices (except where otherwise required by applicable law) and elections.  The Parties agree that any deductions of any member of the DG Group or the SpinCo Group for bonuses, fees or other expenses paid or payable by such member as a result of or in connection with the consummation of the Separation, Redemption, Merger and the other transactions contemplated hereby (including the transactions consummated pursuant to the Merger Agreement) and any fees, expenses, premiums and penalties with respect to the prepayment of debt and the write-off or acceleration of the amortization of deferred financing costs (collectively, the “Transaction-Related Expenses”) shall be allocated to and claimed by the relevant Group member in the taxable period (or portion thereof) ending on the Redemption Date.  For the avoidance of doubt, for U.S. federal and applicable state and local income tax purposes, all deductions for Transaction-Related Expenses of the Pre-Spin Group shall be claimed in the taxable period ending on the Redemption Date and shall be reported on the Final Income Tax Returns for the Pre-Spin Group.  The Parties agree that no ratable election under Treasury Regulations Section 1.1502-76(b)(2)(ii) or any other similar law shall be made

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with respect to the transactions contemplated in this Agreement, the Separation Agreement or the Merger Agreement.

(e)Taxable Year.  DG and SpinCo covenant and agree that, for Tax purposes, the members of the SpinCo Group shall be included in the U.S. consolidated federal income Tax Return of the Pre-Spin Group for the taxable year that ends on the Redemption Date (and in all related consolidated, combined, unitary or other group state or local Tax Returns of the Pre-Spin Group for or including such taxable year, as appropriate).  DG covenants and agrees that it shall file a U.S. federal consolidated income tax return with Buyer, and become a member of the Affiliated Group of which Buyer is a common parent or member, beginning on the day immediately following the Redemption Date and that the Pre-Spin Group will terminate as of the end of the day on the Redemption Date.  SpinCo covenants and agrees that the SpinCo Group shall begin a new taxable year for U.S. federal income tax purposes and, to the extent permitted by law, state and local income tax purposes on the day immediately after the Redemption Date.  The Parties further agree that, to the extent permitted by applicable law, all federal, state or other Tax Returns shall be filed consistently with these positions.

(f)Provision of Filing Information. Each Party shall cooperate and assist the other Party in the preparation and filing of all Tax Returns subject to Section 2.01, including by submitting to the other Parties (i) all necessary filing information and (ii) all other information reasonably requested by the other Party in connection with the preparation of such Tax Returns promptly after such request.

2.02PAYMENT OF TAXES.  Subject to Section 2.01 and subject always to the ultimate division of responsibility for Taxes set out in Section 2.03, DG and SpinCo shall each remit or cause to be remitted to the applicable Governmental Authority in a timely manner any Taxes due in respect of any Tax Return that such Party is required to file (or, in the case of a Tax for which no Tax Return is required to be filed, which is otherwise payable by such Party or a member of such Party’s Group to any Governmental Authority); provided, however, that in the case of any SpinCo Filed Tax Return that relates to a Straddle Period, DG shall remit to SpinCo in immediately available funds the amount of any Taxes reflected on such Tax Return for which DG is responsible hereunder at least two (2) Business Days before payment of the relevant amount is due to a Governmental Authority.

2.03ALLOCATION OF TAXES AND PRIOR AGREEMENTS.

(a)SpinCo Taxes.  SpinCo and the members of the SpinCo Group shall be responsible for the payment of, and shall be entitled to any refund of or credit for, (i) all Taxes of the Pre-Spin Group or any member of the DG Group, in each case, for any Pre-Redemption Period (including any corporate-level Tax resulting from the Redemption, the Contribution and the Merger), (ii) all Taxes of the DG Group for any Post-Redemption Period incurred as a result of the inclusion of any item of income or gain in, or the exclusion of any item of deduction or loss from, taxable income for any Post-Redemption Period as result of (A) any change in a method of accounting of a DG Group member for a taxable period ending on or prior to the Redemption Date, (B) any “closing agreement” within the meaning of Code Section 7121 (or any corresponding provision of state, local or non-U.S. Tax law) binding on a DG Group member that was executed on or prior to the Redemption Date, (C) any installment sale or open

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transaction effected by a DG Group member on or prior to the Redemption Date, (D) any prepaid amount, including in respect of deferred revenue, received by a DG Group member on or prior to the Redemption Date, or (E) any discharge of indebtedness of a DG Group Member on or prior to the Redemption Date for which an election was made under Code Section 108(i) (collectively, “Deferred Items”), (iii) all Taxes of any member of the SpinCo Group for any taxable period, and (iv) all Taxes, Liabilities and related losses resulting from any breach of any covenant or obligation of any member of the SpinCo Group under this Agreement; provided, that notwithstanding the allocation contemplated by Section 2.03(e), any Taxes due with respect to a Pre-Redemption Period for (x) the Pre-Spin Group, (y) any member of the DG Group or (z) any member of the SpinCo Group, in each case, shall be determined net of any applicable Tax assets or other applicable Tax attributes attributable to the DG Group or the SpinCo Group that otherwise would have been available as of the close of the Redemption Date (taking into account any Tax Liability incurred by any member of the DG Group in connection with the Contribution or the Redemption) to reduce the Tax Liability of the members of the DG Group and the SpinCo Group for any Pre-Redemption Period; provided, further, any Taxes due with respect to a Post-Redemption Period for any member of the DG Group as a result of the inclusion or exclusion of any Deferred Items shall be determined net of any applicable Tax assets or other applicable Tax attributes attributable to the DG Group or the SpinCo Group that arose in a Pre-Redemption Period (e.g., a net operating loss carryforward) that are available and in fact useable in the Post-Redemption Period to reduce such Tax Liability of the DG Group for such period, with all such applicable Tax assets and Tax attributes applied first to offset the Deferred Items and/or resulting Tax Liability before the application of such Tax assets and Tax attributes to offset other items of income, gain, deduction or loss of the DG Group or its Affiliates (collectively, “SpinCo Taxes”).

(b)DG Taxes.  Except as otherwise provided in this Agreement, DG and the members of the DG Group shall be responsible for the payment of, and shall be entitled to any refund of or credit for, (i) all Taxes of any member of the DG Group for any Post-Redemption Period and (ii) all Taxes, Liabilities and related losses resulting from any breach of any covenant or obligation of Buyer or any member of the DG Group under this Agreement (collectively, “DG Taxes”).

(c)Allocation of Straddle Period Taxes.  For purposes of this Agreement, including the definitions of SpinCo Taxes and DG Taxes, in the case of any Taxes that are payable with respect to a taxable period that begins on or before the Redemption Date and ends after the Redemption Date (a “Straddle Period”), the portion of such Taxes that relate to the Pre-Redemption Period shall (i) in the case of ad valorem or property Taxes, be deemed to be the amount of such Tax for the entire Straddle Period multiplied by a fraction the numerator of which is the number of days in the Straddle Period ending on the Redemption Date and the denominator of which is the number of days in the entire Straddle Period and (ii) in the case of any other Tax, such as income, sales or use Tax, be deemed equal to the amount which would be payable (computed on an interim closing of the books basis) as if the relevant taxable period ended as of the close of business on the Redemption Date; provided, that (1) any exemptions, allowances, deductions (including depreciation or amortization) and credits that are calculated on an annual basis shall be allocated between the portion of the Straddle Period ending on the Redemption Date and the portion beginning after the Redemption Date in proportion to the number of days in each such portion of the taxable period and (2) all Transaction-Related

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Expenses shall be treated as having accrued on the Redemption Date and shall be deducted in the Pre-Redemption Period.

(d)Tax Refunds.  Any Tax refund, credit or similar benefit (including any interest paid or credited with respect thereto) relating to a Pre-Redemption Period shall be the property of SpinCo and shall be paid over to SpinCo promptly upon receipt by DG or any of its Affiliates.  Upon the request of SpinCo and subject to SpinCo reimbursing the DG Group for costs incurred by the DG Group in connection therewith, the DG Group shall file for, and use their reasonable best efforts to obtain, any Tax refund, credit or similar benefit to which SpinCo is entitled hereunder, and SpinCo, pursuant the grant of agency set forth in Section 2.01(b), shall have the right to prosecute any such Tax refund claim.  For the avoidance of doubt and subject to the foregoing, SpinCo shall be entitled to seek a refund of any Taxes paid for any Pre-Redemption Period available as a result of the carryback or carryforward of any losses realized in a Pre-Redemption Period.

(e)Tax Assets.  In connection with the Separation and Redemption, DG and SpinCo shall cooperate in determining the allocation of any Tax assets or other Tax attributes among the members of the DG Group and the members of the SpinCo Group for use in Post-Redemption Periods.  Such allocation will be made in accordance with applicable Tax laws; provided, in the absence of controlling legal authority, the Parties agree to allocate Tax assets or attributes to the legal entity that created the asset or attribute.  For the avoidance of doubt, this Section 2.03(e) is not intended to constitute a tax sharing agreement by the parties and no member of a Group shall be obligated to compensate any member of the other Group for the allocation or use of any Tax asset of Tax attribute allocated pursuant to this Section 2.03.

(f)Prior Agreements.  Except as set forth in this Agreement, any and all prior Tax sharing or allocation agreements or practices between any member of the DG Group and any member of the SpinCo Group shall be terminated as of the Redemption Date, and no member of either Group shall have any continuing rights or obligations thereunder.

ARTICLE III.

COVENANTS

3.01SPINCO COVENANTS.  Notwithstanding anything else to the contrary contained in this Agreement or any other agreement, SpinCo (on behalf of itself and its Affiliates) hereby covenants and agrees that (i) none of SpinCo or any of its Affiliates will take or permit to be taken any action at any time that reasonably would be expected to jeopardize the Contribution Tax Treatment, the Redemption Tax Treatment or both, or (ii) in preparing the Final Income Tax Returns for the Pre-Spin Group, DG may request an election to be made pursuant to Treasury Regulation 1.1502-36(d)(6), and SpinCo shall give reasonable consideration to such request.

3.03DG COVENANTS.  Notwithstanding anything else to the contrary contained in this Agreement or any other agreement, DG (on behalf of itself and its Affiliates) hereby covenants and agrees that none of DG or its Affiliates will take or permit to be taken any action at any time that reasonably would be expected to jeopardize, the Contribution Tax Treatment, the

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Redemption Tax Treatment or both.  DG and its Affiliates shall not enter into or engage in any transaction, or take or refrain from taking any action, on the Redemption Date after the Merger that is outside the ordinary course of business (other than any transaction or action contemplated by this Agreement or the Merger Agreement).  Except as otherwise required by law, from and after the Redemption Date, DG shall not, and shall cause its Affiliates not to, without the prior written consent of SpinCo (such consent not to be unreasonably withheld, conditioned or delayed) (i) make or change any Tax election with respect to any member of the DG Group or the SpinCo Group for a Pre-Redemption Period (including any election under Section 338 of the Code (or any similar provision of state, local or foreign law) in connection with the Merger), (ii) amend, re-file or otherwise modify (or grant an extension of any applicable statute of limitations with respect to) any Tax Return of any member of the DG Group for any Pre-Redemption Period or (iii) take any action or enter into any transaction that may increase any SpinCo Tax.

ARTICLE IV.

INDEMNITY

4.01INDEMNITY OBLIGATIONS.  Any Party that may be entitled to indemnification for Taxes or other Liabilities under this Section 4.01 of this Agreement is referred to as an “Indemnified Party” and any Party that may be liable for Taxes or other Liabilities under Section 4.01 of this Agreement is referred to as the “Indemnifying Party.”

(a)By SpinCo.  SpinCo shall indemnify and hold harmless the DG Indemnitees from and against any and all SpinCo Taxes.

(b)By DG.  DG shall indemnify and hold harmless the SpinCo Indemnitees from and against any and all DG Taxes.

(c)Reduction for Other Recoveries; Subrogation.  The amount that any Indemnifying Party is obligated to pay to an Indemnified Party pursuant to this Article IV shall be reduced by any amounts actually recovered from third parties on behalf of the Indemnified Party in respect of the Liability subject to indemnification hereunder.  If an Indemnified Party receives a payment as required by this Agreement from an Indemnifying Party in respect of any Liability and subsequently recovers amounts from any third party in respect of such Liability, then the Indemnified Party shall hold such amounts in trust for the benefit of the Indemnifying Party and shall pay to the Indemnifying Party, as promptly as practicable after receipt, an amount equal to the aggregate amount of such recovery received; provided, that the aggregate amount of all payments by the Indemnified Party pursuant to this Section 4.01(c) in respect of any indemnified Liability shall not exceed the aggregate amount of all payments received from the Indemnifying Party pursuant to this Agreement in respect of the indemnified Liability.  In the event of payment by or on behalf of an Indemnifying Party to an Indemnified Party pursuant to this Section 4.01, the Indemnifying Party shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right, defense or claim against any other Person.  The Indemnified Party shall reasonably cooperate with the Indemnifying Party in prosecuting any subrogated right, defense or claim.

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4.02TREATMENT OF PAYMENTS.  The Parties agree that any payment made between the Parties pursuant to this Agreement, the Separation Agreement or any other Ancillary Agreement with respect to a Pre-Redemption Period or as a result of an event or action occurring in a Pre-Redemption Period shall be treated, to the extent permitted by law, for all Tax purposes as a nontaxable payment (i.e., a distribution or a capital contribution) made immediately prior to the Redemption.

ARTICLE V.

TAX CLAIMS

5.01NOTICE OF TAX CLAIMS.  Upon receipt by any Indemnified Party of notice of any pending or threatened audit or examination, or any claim, assessment or asserted deficiency for Taxes, that could give rise to a claim for indemnification under Section 4.01 of this Agreement (a “Tax Claim”), such Party shall promptly, and in any event no more than ten (10) calendar days following receipt of such notice, notify the Indemnifying Party in writing of the Tax Claim.  Such notice shall include a copy of the relevant portion of any correspondence received from the relevant Governmental Authority and describe in reasonable detail the nature of the applicable Taxes.  Notwithstanding the foregoing, no failure or delay by an Indemnified Party to provide notice of a Tax Claim to the Indemnifying Party shall reduce or otherwise affect the obligation of such Indemnifying Party hereunder except to the extent the defense of such Tax Claim is materially prejudiced thereby.

5.02CONTROL OF TAX CLAIMS.  The Indemnifying Party shall be entitled, upon written notice to the Indemnified Party within ten (10) calendar days following receipt of notice from the Indemnified Party of any Tax Claim, to control, at its own expense, the conduct, defense and settlement of such Tax Claim; provided, that (a) the Indemnifying Party shall keep the Indemnified Party informed regarding the progress and all material aspects of any such Tax Claim, (b) the Indemnified Party shall be entitled at its own expense to participate in any Tax Claim and (c) the Indemnifying Party shall not compromise or settle any such Tax Claim without obtaining the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) if the resolution or settlement of such Tax Claim reasonably would be expected to result in Tax or Liability of the Indemnified Party and its Affiliates for which the Indemnified Party and its Affiliates are not entitled to indemnification under Section 4.01 hereof.  If the Indemnifying Party does not timely elect to control the conduct and defense of a Tax Contest, or is unable to appropriately, adequately and vigorously continue to conduct such defense as a result of a conflict of interest, admission of criminal conduct, financial inability or similar concerns, then the Indemnified Party shall have the right to control the conduct and defense thereof; provided, that (x) the Indemnified Party shall keep the Indemnifying Party informed regarding the progress and all material aspects of such Tax Claim, (y) the Indemnifying Party, at its own expense, shall be entitled to participate in such Tax Claim and (z) the Indemnified Party shall not compromise or settle such Tax Claim without obtaining the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed).

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ARTICLE VI.

COOPERATION

6.01GENERAL.  Upon the reasonable request of any Party to this Agreement, the other Party shall provide (and shall cause its Affiliates to provide) the requesting Party, promptly upon request, with such cooperation and assistance, documents, and other information as may reasonably be requested by such Party in connection with (i) the preparation and filing of any original or amended Tax Return, (ii) the conduct of any audit or other examination or any judicial or administrative proceeding involving to any extent Taxes or Tax Returns within the scope of this Agreement, or (iii) the verification by a Party of an amount payable hereunder to, or receivable hereunder from, another Party.  Such cooperation and assistance shall include:  (i) making available the books, records, Tax Returns, documentation or other information relating to any relevant Tax Return: (ii) the execution of any document that may be necessary or reasonably helpful in connection with the filing of any Tax Return, or in connection with any audit, proceeding, suit or action of the type generally referred to in the preceding sentence, including, without limitation, the execution of powers of attorney and extensions of applicable statutes of limitations, with respect to Tax Returns which SpinCo may be obligated to file on behalf of the DG Group pursuant to Section 2.01; (iii) the prompt and timely filing of appropriate claims for refund; and (iv) the use of reasonable best efforts to obtain any documentation from a Governmental Authority or a third party that may be necessary or helpful in connection with the foregoing.  Each Party shall make its employees and facilities available on a mutually convenient basis to facilitate such cooperation.  Notwithstanding anything to the contrary in this Section 6.01, (x) in the event that the party to whom the request has been made determines that any such provision of information could reasonably be expected to violate any law or agreement or waive any attorney-client privilege, then the parties shall use commercially reasonable efforts to permit compliance with such obligations to the extent and in a manner that avoids such consequence; and (y) the party providing information shall only be obligated to provide such information in the form, condition and format in which it then exists and in no event shall such party be required to perform any improvement, modification, conversion, updating or reformatting of any such information.

6.02CONSISTENT TREATMENT.  Unless and until there has been a Final Determination to the contrary, each Party agrees not to take any position on any Tax Return, in connection with any Tax Claim or otherwise that is inconsistent with (a) the allocation of Taxes between the DG Group and the SpinCo Group as set forth in this Agreement or (b) the Contribution Tax Treatment and the Redemption Tax Treatment.

ARTICLE VII.

RETENTION OF RECORDS; ACCESS

7.01RETENTION OF RECORDS; ACCESS.  For so long as the contents thereof may become material in the administration of any matter under applicable Tax law, but in any event until the later of (i) the expiration of any applicable statute of limitation and (ii) seven years after the Redemption Date, the Parties shall (a) retain records, documents, accounting data and other information (including computer data) necessary for the preparation and filing of all Tax Returns

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in respect of Taxes of any member of either the DG Group or the SpinCo Group for any Pre-Redemption Period or any Straddle Period or for any Tax Claims relating to such Tax Returns, and (b) give to the other Party reasonable access to such records, documents, accounting data and other information (including computer data) and to its personnel (ensuring their cooperation) and premises, for the purpose of the review or audit of such Tax Returns to the extent relevant to an obligation or liability of a Party under this Agreement or for purposes of the preparation or filing of any such Tax Return, the conduct of any Tax Claim or any other matter reasonably and in good faith related to the Tax affairs of the requesting Party.  At any time after the Redemption Date that a Party proposes to destroy such material or information, it shall first notify the other Party in writing and the other Party shall be entitled to receive such materials or information proposed to be destroyed.

ARTICLE VIII.

MISCELLANEOUS PROVISIONS

8.01COUNTERPARTS; ENTIRE AGREEMENT.

(a)This Agreement may be executed and delivered (including by facsimile transmission) in two or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed and delivered shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.

(b)This Agreement, the Separation Agreement and the other Ancillary Agreements and the Appendices and Schedules hereto and thereto contain the entire agreement between the Parties with respect to the subject matter hereof, supersede all previous agreements, negotiations, discussions, writings, understandings, commitments and conversations with respect to such subject matter and there are no agreements or understandings between the Parties other than those set forth or referred to herein or therein.  In the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of the Separation Agreement or any other Ancillary Agreement, the terms and conditions of this Agreement (including amendments hereto) shall control with respect to the tax matters set forth herein.

8.02GOVERNING LAW.  This Agreement, except as expressly provided herein, shall be governed by and construed and interpreted in accordance with the Laws of the State of Delaware, irrespective of the choice of laws principles of the State of Delaware as to all matters, including matters of validity, construction, effect, enforceability, performance and remedies.

8.04APPLICATION TO PRESENT AND FUTURE SUBSIDIARIES.  This Agreement is being entered into by DG and SpinCo on behalf of themselves and the members of their respective Groups.  This Agreement shall constitute a direct obligation of each such entity.  Articles III and VI of this Agreement shall be deemed to have been readopted and affirmed on behalf of any entity that becomes a Subsidiary or Affiliate of DG or SpinCo in the future.

8.05FURTHER ASSURANCES.  Subject to the provisions hereof, the Parties hereto shall make, execute, acknowledge and deliver such other instruments and documents, and take

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all such other actions, as may be reasonably required in order to effectuate the purposes of this Agreement and to consummate the transactions contemplated hereby.

8.06SURVIVAL.  Notwithstanding any other provision of this Agreement to the contrary, all covenants and obligations contained in this Agreement shall survive until the expiration of the applicable statute of limitations with respect to any such matter (including extensions thereof).

8.07ADDRESSES AND NOTICES.  All notices, requests, claims, demands or other communications under this Agreement shall be in writing and shall be deemed to be duly given when (a) delivered in person or (b) deposited in the United States mail or private express mail, postage prepaid, addressed as follows:

If to DG:

Digital Generation, Inc.

750 West John Carpenter Freeway, Suite 700

Irving, TX 75039

Attention: Chief Financial Officer

Facsimile: : (972) 581-2100

with a copy (if prior to the Redemption Date), which shall not constitute notice, to:

Latham & Watkins LLP

555 Eleventh Street, N.W., Suite 1000

Washington, D.C. 20004-1304

Attention: William P. O’Neill

Telephone: (202) 637-2275

Facsimile: (202) 637-2201

E-mail: william.o’neill@lw.com

with a copy (if after the Redemption Date), which shall not constitute notice, to:

Pierce Atwood LLP

100 Summer Street, Suite 2250

Boston, MA  02110

Attention: Timothy C. Maguire, Esq.

Facsimile:  (617) 824-2020

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If to SpinCo, to:

Sizmek Inc.

750 West John Carpenter Freeway, Suite 700

Irving, TX  75039

Attention: Chief Financial Officer

Facsimile: (972) 581-2100

with a copy, which shall not constitute notice, to:

Latham & Watkins LLP

555 Eleventh Street, N.W., Suite 1000

Washington, D.C. 20004-1304

Attention: William P. O’Neill

Telephone: (202) 637-2275

Facsimile: (202) 637-2201

E-mail: william.o’neill@lw.com

Either Party may, by notice to the other Party, change the address to which such notices are to be given by delivery of notice in accordance with this Section 8.07.

8.08BINDING EFFECT.  This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and assigns.

8.09WAIVERS OF DEFAULT.  The failure of either Party to require strict performance by the other Party of any provision in this Agreement, or to exercise any right or remedy under this Agreement will not waive or diminish such Party’s right to demand strict performance or exercise thereafter of that or any other provision, right or remedy hereof.

8.10INVALIDITY OF PROVISIONS.  If any provision of this Agreement or the application thereof to any Person or circumstance is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions hereof, or the application of such provision to Persons or circumstances or in jurisdictions other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby, so long as the economic or legal substance of the transactions contemplated hereby or thereby, as the case may be, is not affected in any manner adverse to any Party.  Upon such determination, the Parties shall negotiate in good faith in an effort to agree upon such a suitable and equitable provision to affect the original intent of the Parties.

8.11CONSTRUCTION.  The language in all parts of this Agreement shall in all cases be construed according to its fair meaning and shall not be strictly construed for or against any Party.

8.12NO DOUBLE RECOVERY.  No provision of this Agreement shall be construed to provide an indemnity or other recovery for any costs, damages or other amounts for which the damaged Party has been fully compensated under any other provision of this Agreement or under

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any other agreement or action at law or equity.  Unless expressly required in this Agreement, a Party shall not be required to exhaust all remedies available under other agreements or at law or equity before recovering under the remedies provided in this Agreement.

8.13SETOFF.  All payments to be made by any Party under this Agreement may be netted against payments due to such Party under this Agreement, but otherwise shall be made without setoff, counterclaim or withholding, all of which are hereby expressly waived.

8.14NO THIRD PARTY RIGHTS.  This Agreement is only intended to allocate the responsibility for certain Taxes between DG and SpinCo and to address the other Tax matters stated herein.  Except for the indemnification rights under this Agreement of any DG Indemnitee or SpinCo Indemnitee in their respective capacities as such, (a) the provisions of this Agreement are solely for the benefit of the Parties and are not intended to confer upon any Person except the Parties any rights or remedies hereunder, and (b) there are no third party beneficiaries of this Agreement and this Agreement shall not provide any third party with any remedy, claim, liability, reimbursement, claim of action or other right in excess of those existing without reference to this Agreement.  Notwithstanding the foregoing, DG and SpinCo acknowledge and agree that the rights of the Indemnified Parties expressly provided under this Agreement may only be enforced by DG and SpinCo.

8.15SEPARATION AGREEMENT.  To the extent not inconsistent with any specific term of this Agreement, the provisions of the Separation Agreement shall apply in relevant part to this Agreement, including Article IX (Dispute Resolution) and Article XI (Termination), Section 12.4 (Assignability), Section 12.10 (Headings; Interpretation), Section 12.13 (Specific Performance), Section 12.14 (Amendments) and Section 12.15 (Waiver of Jury Trial).

[Signature Page Follows]

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

DIGITAL GENERATION, INC.
By:	/s/ Craig Holmes
	Name:	Craig Holmes
	Title:	Chief Financial Officer
SIZMEK INC.
By:	/s/ Neil Nguyen
	Name:	Neil Nguyen
	Title:	President and Chief Executive Officer

EX-10.3

Exhibit 10.3

EMPLOYEE MATTERS AGREEMENT

This EMPLOYEE MATTERS AGREEMENT (including all Schedules hereto, this “Agreement”), dated as of February 6, 2014, is entered into by and between Digital Generation, Inc., a Delaware corporation (“DG”), and Sizmek Inc., a Delaware corporation (“SpinCo”) (each a “Party” and collectively, the “Parties”). Capitalized terms used herein shall have the meanings ascribed to them in Article I.

RECITALS

WHEREAS, DG has entered into that Agreement and Plan of Merger dated as of August 12, 2013, by and among Extreme Reach, Inc., a Delaware corporation (“Buyer”), Dawn Blackhawk Acquisition Corp., a Delaware corporation (“Acquisition Sub”), and DG (the “Merger Agreement”), pursuant to which Acquisition Sub will merge with and into DG (the “Merger”) with DG surviving the Merger, subject to the terms and conditions set forth in the Merger Agreement;

WHEREAS, DG’s operations are divided into two reporting segments for purposes of reporting its financial condition and results of operations, notably its Online Business and its Television Business;

WHEREAS, Buyer and Acquisition Sub desire to acquire from DG, and DG desires to transfer to Buyer and Acquisition Sub, only the Television Business under the terms and conditions of the Merger Agreement as more fully described in this Agreement, that certain Separation and Redemption Agreement, dated as of the date hereof, by and between DG and SpinCo (the “Separation and Redemption Agreement”) and the other Ancillary Agreements;

WHEREAS, following the separation of the Online Business (which will be conveyed to and vest in SpinCo) and the Television Business (which will remain with DG and its Subsidiaries that are not being conveyed to SpinCo) in accordance with the Separation and Redemption Agreement (the “Separation”), and as a condition to the Merger, immediately prior to the Effective Time, each share of common stock of DG then issued and outstanding will be partially redeemed (the “Redemption”) by conversion into the right to receive one (1) share of common stock of SpinCo;

WHEREAS, the Parties desire to enter into this Agreement to allocate between them assets, liabilities and responsibilities with respect to certain employee compensation, benefit plans, programs and arrangements, and certain employment matters; and

WHEREAS, DG and SpinCo intend in the Separation and Redemption Agreement, this Agreement and the other Ancillary Agreements to set forth the principal corporate and commercial arrangements between the Parties with respect to the Separation and the Redemption.

NOW, THEREFORE, in consideration (the sufficiency and receipt of which is hereby acknowledged) of the foregoing and the terms, conditions, covenants and provisions of this Agreement, DG and SpinCo mutually covenant and agree as follows:

ARTICLE I

DEFINITIONS

Capitalized terms used in this Agreement (other than the formal names of Plans) and not otherwise defined in this Article I or elsewhere in this Agreement shall have the respective meanings assigned to them in the Separation and Redemption Agreement.

Wherever used in this Agreement, the following terms shall have the meanings indicated below or as such term may be defined elsewhere in this Agreement, unless a different meaning is plainly required by the context.  The singular shall include the plural, unless the context indicates otherwise.

1.1          401(k) Plan.  “401(k) Plan” means the DG, Inc. 401(k) Plan, and the associated trust (including all predecessor plans and trusts that have been merged into the 401(k) Plan), which is intended to be qualified under Code Section 401(a) and exempt from taxation under Code Section 501(a).

1.2          COBRA.  “COBRA” means the continuation coverage requirements for “group health plans” under Title X of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended from time to time, and as codified in Code Section 4980B and ERISA Sections 601 through 608, and to the extent applicable, also includes any similar applicable state laws providing continuation of coverage benefits.

1.3          Code.  “Code” means the Internal Revenue Code of 1986, as amended.

1.4          Companies.  “Companies” means DG, SpinCo, the Other Subsidiaries and the SpinCo Subsidiaries.

1.5          Continuing DG Contractor.  “Continuing DG Contractor” means any Contractor of DG or any of the Other Subsidiaries, including those Contractors listed on Schedule I, other than a SpinCo Contractor or the Retained DG Individuals.

1.6          Continuing DG Employee.  “Continuing DG Employee” means any Employee of DG or any of the Other Subsidiaries, including those Employees listed on Schedule I, other than a SpinCo Employee or the Retained DG Individuals.

1.7          Contractor.  “Contractor” means any individual actively providing services to the Companies as an independent contractor or other individual service provider other than a member of the Board of Directors of any of the Companies.

1.8          DG Option.  “DG Option” shall mean an outstanding option to purchase shares of DG common stock under any of the DG Option Plans.

1.9          DG Option Plans.  “DG Option Plans” shall mean DG’s 2011 Incentive Award Plan, Amended and Restated 2006 Long-Term Stock Incentive Plan, Amended and Restated 1995 Director Option Plan, 1992 Stock Option Plan, the Viewpoint 1995 Stock Option Plan, the

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Viewpoint 2006 Equity Incentive Plan and the MediaMind Technologies Inc. 2007 Stock Option and Incentive Plan.

1.10        Effective Time.  “Effective Time” has the meaning ascribed in the Merger Agreement.

1.11        Employee.  “Employee” shall mean an active employee or an employee on vacation or on approved leave of absence (including maternity, paternity, family, sick leave, salary continuation, qualified military service under the Uniformed Services Employment and Reemployment Rights Act of 1994, and leave under the Family Medical Leave Act and other approved leaves).

1.12        ERISA.  “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

1.13        Exchange Date.  “Exchange Date” means the date that is two Business Days prior to the Redemption Date.

1.14        FSA Plans.  “FSA Plans” means the flexible spending plans offered by the Companies that cover or are offered to Employees of the Companies, other than any Retained International Plans.

1.15        Health Plans.  “Health Plans” means the medical, HMO, vision, dental Plans and any similar Plans maintained for the benefit of Employees of the Companies and their eligible spouses and dependents, other than any Retained International Plans.

1.16        International Online Employee.   “International Online Employee” means those Continuing DG Employees engaged in the Online Business listed on Schedule VI attached hereto, whose employment with DG or an Other Subsidiary will continue following the Effective Time pursuant to the Transition Services Agreement.

1.17        International TV Employee.  “International TV Employee” means those SpinCo Employees engaged in the Television Business listed on Schedule VII attached hereto, whose employment with SpinCo or any of the SpinCo Subsidiaries will continue following the Effective Time pursuant to the Transition Services Agreement.

1.18        Liabilities.  “Liabilities” means all debts, liabilities, guarantees, assurances, commitments and obligations, whether fixed, contingent or absolute, asserted or unasserted, matured or unmatured, liquidated or unliquidated, accrued or not accrued, known or unknown, due or to become due, whenever or however arising (including, without limitation, whether arising out of any contract or tort based on negligence or strict liability) and whether or not the same would be required by generally accepted accounting principles to be reflected in financial statements or disclosed in the notes thereto.

1.19        SpinCo Contractor.  “SpinCo Contractor” means any current or former Contractor of SpinCo or any of the SpinCo Subsidiaries (other than any former Contractor of SpinCo who is a Continuing DG Employee or a Continuing DG Contractor).  Schedule II attached hereto sets forth each current SpinCo Contractor.

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1.20        SpinCo Employee.  “SpinCo Employee” means any Transferred DG Employee and any current or former Employee of SpinCo or any of the SpinCo Subsidiaries (other than any former Employee of SpinCo who is a Continuing DG Employee or a Continuing DG Contractor).  Schedule II attached hereto sets forth each current Employee of SpinCo or a SpinCo Subsidiary.

1.21        SpinCo Subsidiaries.  “SpinCo Subsidiaries” means those Subsidiaries of SpinCo and its Subsidiaries as listed in the Disclosure Schedules to the Merger Agreement.

1.22        Non-U.S. Plan.  “Non-U.S. Plan” means any Plan covering a Continuing DG Employee or a Continuing DG Contractor on a non-U.S. payroll immediately prior to the Transition Date.

1.23        Online Business.  “Online Business” has the meaning ascribed in the Merger Agreement.

1.24        Other Subsidiaries.  “Other Subsidiaries” means the Subsidiaries of DG other than SpinCo and the SpinCo Subsidiaries.

1.25        Other Welfare Plans.  “Other Welfare Plans” means the employee welfare benefit plans offered by the Companies that cover or are offered to Employees of the Companies (and, as applicable, their dependents), including without limitation, long-term and short-term disability plans and life insurance plans, other than the Retained International Plans.

1.26        Participating Company.  “Participating Company” means, with respect to a Plan, any Person (other than an individual) that has been approved for participation in, has accepted participation in, and/or which is participating in, or the Employees of which participate in or are covered by, such Plan.

1.27        Plan.  “Plan” means any “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) (whether or not subject to ERISA) and any other plan, predecessor plan, policy, program, practice, agreement, contract, trust, insurance policy, understanding or arrangement (whether written or oral) providing compensation or other benefits to any current or former director, Employee, or Contractor (or to any dependent, domestic partner, or beneficiary thereof) of the Companies or any of their affiliates, subsidiaries, or controlled group members (as defined in Section 414(b), (c), (m) or (o) of the Code) (collectively, the “DG ERISA Affiliates”), which is or has been maintained, sponsored, or contributed to by any of the Companies or a DG ERISA Affiliate prior to the Effective Time.

1.28        Restricted Stock Unit.  “Restricted Stock Unit” means an outstanding restricted stock unit related to DG common stock granted pursuant to any DG Option Plan.

1.29        Retained DG Agreements.  “Retained DG Agreements” means those agreements set forth on Schedule III attached hereto.

1.30        Retained DG Individuals.  “Retained DG Individuals” means the Employees and Contractor of DG set forth on Schedule IV attached hereto.

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1.31        Retained International Plans.  “Retained International Plans” means the benefits provided pursuant to Sunlife Financial Policy No. 70238, which includes extended health care, dental care, long-term disability, life insurance, accidental death and dismemberment, and any Non-U.S. Plan that will not be terminated immediately prior to the Transition Date pursuant to the provisions of Section 2.4 and will instead be retained from and after the Transition Date by DG, an Other Subsidiary or one of their Affiliates.

1.32        Television Business.  “Television Business” has the meaning ascribed in the Merger Agreement

1.33        Transferred DG Contractor.  “Transferred DG Contractor” means the current Contractors of DG and the Other Subsidiaries set forth on Schedule V attached hereto, other than any such Contractors who cease to provide services to DG or any of the Other Subsidiaries prior to the Transition Date, and any other Contractors of DG and the Other Subsidiaries that DG and SpinCo may mutually agree (subject to the written approval of the Buyer, which shall not be unreasonably withheld) shall transfer from DG or one of the Other Subsidiaries to SpinCo or a SpinCo Subsidiary in connection with the Separation.

1.34        Transferred DG Employee.  “Transferred DG Employee” means the current Employees of DG and the Other Subsidiaries set forth on Schedule V attached hereto, other than any such Employees who cease to be employed by DG or any of the Other Subsidiaries prior to the Transition Date, any individuals hired as Employees by the Companies after the date hereof to work in the Online Business and any other Employees of DG and the Other Subsidiaries that DG and SpinCo may mutually agree (subject to the written approval of the Buyer, which shall not be unreasonably withheld) shall transfer employment from DG or one of the Other Subsidiaries to SpinCo or a SpinCo Subsidiary in connection with the Separation.

1.35        Transition Date.  “Transition Date” means, except as may otherwise be agreed between SpinCo and DG, 12:01 a.m. Eastern Time on the Redemption Date; provided, however, that, on the Transition Date prior to the Effective Time, SpinCo agrees to pay all Employees and Contractors of the Companies all amounts to which they are entitled under the terms of their existing employment or consulting arrangements with DG, SpinCo or any subsidiary and under the terms of this Agreement through 11:59 p.m. Central Time on the Redemption Date.

1.36        U.S. Finance Employee.  “U.S. Finance Employee” means those Transferred DG Employees listed on Schedule VIII attached hereto, whose employment with SpinCo or a SpinCo Subsidiary will continue following the Effective Time pursuant to the Transition Services Agreement.

ARTICLE II

GENERAL PRINCIPLES

2.1          Liabilities

(a)           Except as otherwise specified in this Agreement or as mutually agreed upon by DG and SpinCo from time to time (subject to the written approval of the Buyer), effective as of the Transition Date, SpinCo hereby assumes and agrees to pay, perform, fulfill

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and discharge, in accordance with their respective terms (i) all Liabilities of the Companies relating to, arising out of, or resulting from the employment of current or former Employees (including without limitation the Retained DG Individuals, any payments or liabilities related to the termination of, or payments to, the Retained DG Individuals pursuant to Section 6.2), and the service relationship of current or former directors or Contractors, with the Companies, in each case, prior to the Effective Time, (ii) all Liabilities of SpinCo and the SpinCo Subsidiaries relating to, arising out of, or resulting from the employment of SpinCo Employees, and the service relationship of SpinCo Contractors, with SpinCo and the SpinCo Subsidiaries, in each case, from and after the Transition Date, and (iii) all Liabilities of the Companies relating to, arising out of, or resulting from the Plans, in each case, prior to the Effective Time.

(b)           Except as specified otherwise in this Agreement or as mutually agreed upon by DG and SpinCo from time to time (subject to the written approval of the Buyer), effective as of the Effective Time, DG hereby assumes and agrees to pay, perform, fulfill and discharge, in accordance with their respective terms (i) all Liabilities of DG and the Other Subsidiaries relating to, arising out of, or resulting from employment of Continuing DG Employees, and the service relationship of Continuing DG Contractors, with DG and the Other Subsidiaries from and after the Effective Time, and (ii) all Liabilities of DG and the Other Subsidiaries relating to, arising out of, or resulting from any Retained International Plan, in each case, to the extent such Liabilities arise from and after the Effective Time.

2.2          SpinCo Under No Obligation to Maintain Plans.  Except as specified otherwise in this Agreement or as otherwise mutually agreed to by DG and SpinCo, nothing in this Agreement shall preclude SpinCo or any of the SpinCo Subsidiaries, at any time after the Transition Date, from amending, merging, modifying, terminating, eliminating, reducing, or otherwise altering in any respect any Plan, any benefit under any Plan or any trust, insurance policy or funding vehicle related to any Plan, or any employment or other service arrangement with SpinCo Employees or SpinCo Contractors (to the extent permitted by Law), in each case other than the Retained International Plans.

2.3          Termination of Participating Company Status.  Except as may otherwise be agreed upon by SpinCo and DG (subject to the written approval of the Buyer, which shall not be unreasonably withheld), DG and the Other DG Subsidiaries shall remain Participating Companies in all Plans until immediately prior to the Transition Date.  Except as may otherwise be provided in this Agreement or agreed upon by SpinCo and DG (subject to the written approval of the Buyer, which shall not be unreasonably withheld), as of immediately prior to the Transition Date, DG and the Other Subsidiaries shall each automatically, and without further action on the part of DG or the Other Subsidiaries, withdraw from and cease to be Participating Companies in, all Plans that will be retained by or transferred to SpinCo or the SpinCo Subsidiaries as provided elsewhere in this Agreement.

2.4          Retained International Plans.  Subject to Section 2.1(a), DG and SpinCo each intend that the matters, issues or Liabilities relating to, arising out of, or resulting from Non-U.S. Plans and non-U.S.-related employment matters be handled in a manner that is in compliance with the requirements of applicable local Laws.  In furtherance of the foregoing, and without limiting the effect of Section 2.1(a), to the extent that the transfer of any Non-U.S. Plan in the manner contemplated by this Agreement to SpinCo or the SpinCo Subsidiaries would be

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prohibited under applicable Laws (any such Non-U.S. Plan, a “Mandatory Non-U.S. Plan”), DG, an Other Subsidiary or one of their Affiliates will retain such Mandatory Non-U.S. Plan from and after the Transition Date.  To the extent permitted by applicable Law, upon Buyer’s reasonable request, DG will terminate or cause to be terminated any Mandatory Non-U.S. Plan effective as of not later than the Effective Time.  For the avoidance of doubt, SpinCo will indemnify DG for (a) all Liabilities incurred by DG or the Other Subsidiaries following the Effective Time as a result of the participation of any SpinCo Employee in the Mandatory Non-U.S. Plans, or (b) Liabilities accrued prior to the Effective Time related to the participation of any Continuing DG Employee or Retained DG Individual in the Mandatory Non-U.S. Plans prior to the Effective Time.  Subject to the foregoing provisions of this Section, after the Effective Time, DG and the Other Subsidiaries shall be responsible for the administration of the Retained International Plans.

2.5          Transition Services Agreement.  Subject to the Transition Services Agreement, the Parties’ rights, obligations and Liabilities following the Effective Time with respect to the International Online Employees, the International TV Employees and the U.S. Finance Employees shall be governed exclusively by this Agreement.

ARTICLE III

DEFINED CONTRIBUTION PLAN

3.1          401(k) Plan

(a)           Assumption of 401(k) Plan by SpinCo.  Effective immediately prior to the Transition Date, SpinCo shall assume sponsorship of the 401(k) Plan, and DG hereby consents thereto, and SpinCo shall assume all obligations of DG thereunder, including, without limitation, as sponsor, named fiduciary, and plan administrator.  DG and the Other Subsidiaries shall withdraw as Participating Companies in the 401(k) Plan effective as of immediately prior to the Transition Date.  SpinCo shall take, or cause to be taken, all action necessary to assume sponsorship of the 401(k) Plan, including amending the 401(k) Plan document and summary plan description, notifying 401(k) Plan participants, and notifying service providers to the 401(k) Plan.  Effective immediately prior to the Transition Date, the fiduciaries and plan administrator previously serving with respect to the 401(k) Plan shall be relieved of their respective responsibilities and duties to the extent such individuals are Continuing DG Employees, and SpinCo shall appoint, or cause to be appointed, replacement fiduciaries and a plan administrator (each as defined in Section 3(21) and 3(16) of ERISA, respectively) with respect to the 401(k) Plan.  Except as provided above, DG shall be responsible for all 401(k) Plan obligations, including the administration thereof, prior to the Transition Date.  From and after the Transition Date, SpinCo and its appointees shall retain sole responsibility for all Liabilities under the 401(k) Plan, subject to the terms of the 401(k) Plan (including, without limitation, SpinCo’s right to amend and/or terminate the 401(k) Plan), and DG and the Other Subsidiaries shall have no obligation with respect thereto.

(b)           Vesting of Continuing DG Employee Accounts.  Effective as of immediately prior to the Transition Date, the accounts of all Continuing DG Employees and Retained DG Individuals under the 401(k) Plan shall, to the extent then unvested, become vested

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in full.  DG and SpinCo shall take all actions reasonably necessary to effect such vesting of the Continuing DG Employees’ and Retained DG Individuals’ accounts and to notify affected Continuing DG Employees and Retained DG Individuals of this action.

(c)           Distributions.  If, following the Transition Date, any Continuing DG Employee elects a distribution of benefits from the 401(k) Plan, DG will use commercially reasonable efforts to cause any tax-qualified defined contribution plan, in which such Continuing DG Employee is eligible to participate as of the date of such distribution, to accept, if requested by the applicable Continuing DG Employee, a direct rollover of the portion of a Continuing DG Employee’s distribution which constitutes an eligible rollover distribution.

(d)           Cooperation.  Upon request by either Party, each Party agrees to cooperate with the other Party and to provide all eligible compensation and/or other data as necessary for either Party to determine employer contributions, contribution amounts, loan repayments, and any other information reasonably necessary for the administration of matters pertaining to the 401(k) Plan.

ARTICLE IV

HEALTH AND WELFARE PLANS

4.1          Health Plans

(a)           Transition of Health Plans.  Effective as of the Transition Date, SpinCo and the SpinCo Subsidiaries shall assume sponsorship of the Health Plans, and DG hereby consents thereto.  SpinCo and the SpinCo Subsidiaries shall thereafter be solely responsible for (i) all Liabilities with respect to the Health Plans, whether incurred before or after the Transition Date; and (ii) the administration of the Health Plans, including, without limitation, the payment of all employer-related costs in establishing and maintaining the Health Plans, and for the collection and remittance of employee premiums.

(b)           Claims; Run-out Liability.  From and after the Transition Date, SpinCo shall in good faith administer all claims incurred under the Health Plans before the Transition Date and any determination made or settlements entered into by SpinCo with respect to such claims shall be final and binding.

(c)           No Status Change.  The transfer or other movement of employment between DG and SpinCo or any of their respective Subsidiaries at any time before or upon the Transition Date shall neither constitute nor be treated as a “status change” or termination of employment under the Health Plans.

(d)           COBRA.  SpinCo shall be solely responsible for compliance with the health care continuation coverage requirements of COBRA with respect to Employees and qualified beneficiaries (as such term is defined under COBRA) of the Companies whose “qualifying event” (as such term is defined under COBRA) occurs prior to the Effective Time, and for Retained DG Individuals and Transferred DG Employees whose “qualifying event” occurs as of or following the Effective Time and DG and the Other Subsidiaries shall be solely responsible for compliance with the health care continuation coverage requirements of COBRA

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with respect to Continuing DG Employees and qualified beneficiaries whose “qualifying event” occurs as of or following the Effective Time.

4.2          Other Welfare Plans

(a)           Transition of Other Welfare Plans.  Effective as of the Transition Date, SpinCo and the SpinCo Subsidiaries shall assume sponsorship of the Other Welfare Plans, and DG hereby consents thereto.  SpinCo and the SpinCo Subsidiaries shall thereafter be solely responsible for (i) all Liabilities with respect to the Other Welfare Plans, whether incurred before or after the Transition Date; and (ii) the administration of the Other Welfare Plans, including, without limitation, the payment of all employer-related costs in establishing and maintaining the Other Welfare Plans, and for the collection and remittance of Employee premiums.

(b)           Claims; Run-out Liability.  From and after the Transition Date, SpinCo shall in good faith administer all claims incurred under the Other Welfare Plans before the Transition Date and any determination made or settlements entered into by SpinCo with respect to such claims shall be final and binding.

4.3          Leave Employees.  The Parties shall use commercially reasonable efforts to provide that any Continuing DG Employees that, as of the Transition Date, are on leave from active employment (“Leave Employees”) will be eligible to receive benefits under long-term and/or short-term disability plans and other health and welfare plans maintained by DG or an Affiliate of DG (determined as of immediately following the Effective Time) on substantially the same basis as such Employee was receiving benefits under the corresponding Other Welfare Plans as of immediately prior to the Transition Date, without regard to any actively-in-service or similar requirements.  In the event the Parties are not able to provide for such coverage of the Leave Employees under such DG plans, then notwithstanding any provision of this Agreement to the contrary, the Parties shall reasonably cooperate and take such action as is reasonably necessary to cause any such Leave Employee to continue to receive or be entitled to receive benefits under the applicable Other Welfare Plans, provided that SpinCo and the SpinCo Subsidiaries and DG shall negotiate in good faith to determine the amount (if any) of, and financial responsibility for, any out-of-pocket costs with respect to such coverage or the employment or termination of employment of any such Leave Employees.

4.4          Flexible Spending Account Plan.  Effective as of the Transition Date, SpinCo and the SpinCo Subsidiaries shall assume sponsorship of the FSA Plans, and DG hereby consents thereto.  SpinCo and the SpinCo Subsidiaries shall thereafter be solely responsible for all Liabilities with respect to the FSA Plans, whether incurred before or after the Transition Date.  In the event the Transition Date occurs after the beginning of the flexible spending account plan year (as determined under the FSA Plans), then as soon as practicable following the Transition Date, SpinCo shall cause any Excess FSA Balance (as hereinafter defined) held as of the Transition Date in the FSA Plan accounts of the Continuing DG Employees who are participating in the FSA Plans (hereafter, the “DG FSA Participants”) to be transferred to flexible spending accounts established for those DG FSA Participants under a flexible spending account plan maintained by DG or an Affiliate of DG (determined as of immediately following the Effective Time).  For purposes of this Section 4.4, with respect to each DG FSA Participant, the term “Excess FSA Balance” shall mean the excess, if any, of the aggregate accumulated

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contributions made by such DG FSA Participant to his or her account under the FSA Plans prior to the Transition Date during the year in which the Transition Date occurs over the aggregate reimbursement payouts made for such year from such DG FSA Participant’s account under the FSA Plans.  If, for any DG FSA Participant, the aggregate reimbursement payouts from the flexible spending reimbursement account of such DG FSA Participant under the FSA Plans during the portion of the flexible spending account plan year ending on the Transition Date exceeds the aggregate contributions made by such DG FSA Participant to his or her account under the FSA Plans for such portion of the flexible spending account plan year, DG shall cause an amount of cash equal to such excess to be transferred to SpinCo as soon as reasonably practicable following the Transition Date.

ARTICLE V

ADMINISTRATIVE PROVISIONS

5.1          Information.  Subject to applicable Laws of confidentiality and data protection, (a) DG and SpinCo shall share, or cause to be shared, all participant information that is necessary or appropriate for the efficient and accurate administration of each of the Plans during the respective periods applicable to such Plans, and (b) DG and SpinCo and their respective authorized agents shall be given reasonable and timely access to, and may make copies of, all information relating to the subjects of this Agreement in the custody of the other Party or its agents, to the extent necessary or appropriate for such administration.  Upon the Transition Date, all data and information relating to the employment of and benefits for SpinCo Employees, including personnel and medical records, and the service relationship of SpinCo Contractors, subject in each case to obtaining any consents required by applicable Law, shall become the property of SpinCo and/or the SpinCo Subsidiary employing or retaining such Employee or Contractor.

5.2          Third Party Consents.  If any provision of this Agreement is dependent on the consent of any third party and such consent is withheld, the Parties shall use their commercially reasonable efforts to implement the applicable provisions of this Agreement.  If any such provision cannot be implemented due to the failure to obtain a third party consent, the Parties shall negotiate in good faith to implement such provision in a mutually satisfactory manner.

5.3          Regulatory Matters.  DG and SpinCo shall in a timely manner make such applications to regulatory agencies, including the Internal Revenue Service and the Department of Labor, as may be necessary or appropriate.  The Parties shall reasonably cooperate with and provide assistance to one another (and cause their respective subsidiaries to do the same) with respect to any such applications, including applications for determination letters or private letter rulings from the Internal Revenue Service or advisory opinions from the Department of Labor.

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ARTICLE VI

EMPLOYMENT-RELATED MATTERS

6.1          Employment

(a)           Non-Transferring Employees. The Parties intend with respect to each current SpinCo Employee or SpinCo Contractor to provide for the continuity of employment or service of each such SpinCo Employee or SpinCo Contractor with SpinCo or the applicable SpinCo Subsidiary through and following the Transition Date and, subject to applicable Law, nothing in the Separation and Redemption Agreement, this Agreement or any other Ancillary Agreement is intended to provide for a termination of employment or service of any such SpinCo Employee for any purpose.  The Parties intend with respect to each current Continuing DG Employee and Continuing DG Contractor to provide for the continuity of employment or service of each such Continuing DG Employee or Continuing DG Contractor with DG or the applicable Other Subsidiary through and, for such period of time as determined by DG, following the Transition Date and, subject to applicable Law, nothing in the Separation and Redemption Agreement, this Agreement or any other Ancillary Agreement is intended to provide for a termination of employment or service of any such Continuing DG Employee or Continuing DG Contractor for any purpose.

(b)           Transferred DG Employees. The Parties agree that, effective as of no later than the Transition Date, each Transferred DG Employee will cease to be employed by DG or any Other Subsidiary and each Transferred DG Employee shall commence employment with SpinCo or a SpinCo Subsidiary.  Effective as of the Transition Date, DG shall terminate (or have assumed by SpinCo or a SpinCo Subsidiary) all employment rights and relationships of all of its Television Business Employees who reside or perform services in Israel.

(c)           Transferred DG Contractors.  The Parties agree that, effective as of no later than the Transition Date, DG or an Other Subsidiary will assign to SpinCo or a SpinCo Subsidiary and SpinCo or such SpinCo Subsidiary shall assume the engagements of the Transferred DG Contractors.

6.2          Retained DG Individuals.  Prior to the Effective Time (but not more than 30 days prior to the Effective Time), DG’s Board of Directors or a duly authorized committee or officer  thereof shall, without any further action on the part of any Retained DG Individual, take all actions necessary to cause the termination of the employment or service of the Retained DG Individuals by DG and the termination and liquidation of the Retained DG Agreements effective immediately following the Closing.  The payment to such Retained DG Individuals of all amounts due to them under the Retained DG Agreements as a result of such terminations shall be paid in cash, in a lump sum, at the Effective Time and, for the avoidance of doubt, shall be a liability of SpinCo.  Such terminations will be treated as terminations without “Cause” (as defined in the Retained DG Agreements).

6.3          Paid Leave.  On the Transition Date prior to the Effective Time, DG shall pay to each Continuing DG Employee and each Retained DG Individual all accrued but unpaid vacation, paid time off or other leave benefits.

6.4          Incentive and Commission Payments.  On the Transition Date prior to the Effective Time, to the extent not otherwise provided for herein, DG shall pay (a) to each Continuing DG Employee or Continuing DG Contractor all awards, payments and commissions earned but unpaid as of such time (regardless of whether such awards, payments or commissions were scheduled to be paid at a later date) under each short-term incentive, long-term incentive,

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bonus, commission and similar plan or arrangement sponsored or maintained by DG and, subject to any required consents (which the Parties agree to use commercially reasonable efforts to obtain), terminate all such plans or arrangements, and (b) to each Continuing DG Employee who has a right to participate in an annual or quarterly cash incentive bonus plan with a specified target award (whether specifically termed a “target” award or otherwise), a prorated portion, based on the number of days elapsed for the year or quarter, as applicable, in which the Transition Date occurs, of the annual or quarterly cash incentive bonus payable pursuant to the applicable plan for the year or quarter during which the Transition Date occurs based on actual performance attained as determined by DG in good faith applying the parameters DG would normally apply in determining such individual’s bonus under such plan.  Nothing in this Section 6.4 shall require DG to pay any amount to any Continuing DG Employee or Continuing DG Contractor whose entitlement to an award, bonus or payment is purely in the discretion of the Companies or who does not have a specified target award.

6.5          Employment and Severance Agreements; Contractors.  Subject to obtaining any required consents (which the Parties agree to use commercially reasonable efforts to obtain), and except as otherwise agreed by DG and SpinCo, effective as of no later than the Transition Date, DG shall assign or cause to be assigned any and all employment and severance agreements and similar contracts relating to employment or independent contractor services between DG or any Other Subsidiary, on the one hand, and any SpinCo Employee or SpinCo Contractor, on the other, to SpinCo or a SpinCo Subsidiary designated by SpinCo, and SpinCo or such SpinCo Subsidiary shall assume all Liabilities thereunder.  Subject to Section 6.4 of this Agreement and Section 6.1(d) of the Merger Agreement, for the avoidance of doubt, DG or an Other Subsidiary shall assume all Liabilities from and after the Effective Time under all employment agreements and contracts with independent contractors between DG or any Other Subsidiary, on the one hand, and any Continuing DG Employee or Continuing DG Contractor, on the other.

6.6          No Right To Employment; No Third-Party Beneficiaries; No Plan Amendment.  No provision of this Agreement shall be construed to create any right or accelerate any entitlement to any compensation or benefit whatsoever on the part of any current or former Employee or Contractor or other former, present or future employee or other service provider of the Companies under any Plan or otherwise.   No provision of this Agreement shall be construed to create any right in any Person to continued employment or service with any of the Companies or any other Person for any period, which employment or service may be terminated by any of the Companies or any other Person at any time for any reason or no reason, subject to applicable Law and the terms of any applicable agreements.  No provision of this Agreement shall be construed to require the Companies or any other Person to continue to maintain any Plan or provide any benefit and no provision of this Agreement shall be construed as an amendment to any Plan.  No current or former Employee or Contractor of any of the Companies and no Plan shall be deemed a third party beneficiary under this Agreement and no current or former Employee or Contractor of any of the Companies or Plan is entitled to rely on any provision of this Agreement for any purpose.  The Parties to this Agreement assume no Liability to any third party because of any such reliance.

6.7          Beneficiary Coverage.  References herein to a benefit with respect to a current or former Employee shall include, where applicable, benefits with respect to any eligible

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dependents, domestic partners, and beneficiaries of such Employee under the same employee benefit policy, Plan, arrangement, program, practice or agreement.

ARTICLE VII

EQUITY AWARDS

7.1          Treatment of Options.  Subject to the satisfaction or waiver of the conditions set forth in Article VII of the Merger Agreement and in accordance with Section 3.3 of the Merger Agreement, each DG Option, whether vested or unvested, shall by action of DG’s Board of Directors or a duly authorized committee thereof, and without any action on the part of any holder of any DG Option, become fully vested and be exchanged for shares of DG common stock on a net exercise basis on the Exchange Date.  As of the Separation, there shall be no DG Options outstanding.

7.2          Treatment of Restricted Stock Units.  Subject to the satisfaction or waiver of the conditions set forth in Article VII of the Merger Agreement and in accordance with Section 3.3 of the Merger Agreement, each Restricted Stock Unit, whether vested or unvested, shall by action of DG’s Board of Directors or a duly authorized committee thereof and without any further action on the part of any holder of any Restricted Stock Unit, become fully vested and be converted into a share of DG common stock on the Exchange Date.  As of the Separation, there shall be no Restricted Stock Units outstanding.  Prior to the Exchange Date (but in no event more than 30 days prior to the Effective Time), DG’s Board of Directors or a duly authorized committee thereof shall, without any further action on the part of any Retained DG Individual, take all actions necessary to cause the termination and liquidation of the award agreements evidencing the Restricted Stock Units held by such Retained DG Individuals effective on the Exchange Date, subject to the consummation of the Merger.

7.3          Necessary Action.  Prior to the Transition Date, DG shall take any and all actions reasonably necessary to effectuate the provisions of this Article VII, including, without limitation, providing holders of DG Options and Restricted Stock Units with notice of exchange on a net exercise basis of DG Options for DG common stock and the conversion of their Restricted Stock Units as provided herein.

7.4          Employee Stock Purchase Plan.  Effective no later than immediately prior to the Effective Time, DG shall terminate the Digital Generation, Inc. Employee Stock Purchase Plan pursuant to the terms of that Plan.

ARTICLE VIII

MISCELLANEOUS

8.1          Agreement Subject to the Redemption.  If the Redemption does not occur for any reason, then all actions and events that are, under this Agreement, to be taken or occur effective as of such event or otherwise in connection with such event, shall not be taken or occur except to the extent specifically agreed by SpinCo and DG in a separate writing.  As a result, all actions and events that would, under this Agreement, have to be taken in connection with the

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Redemption, shall not be taken or occur except to the extent specifically agreed by SpinCo and DG in a separate writing.

8.2          Governing Law; Dispute Resolution.  This Agreement shall be governed by and construed and interpreted in accordance with the Laws of the State of Delaware, irrespective of the choice of laws principles of the State of Delaware as to all matters, including matters of validity, construction, effect, enforceability, performance and remedies, to the extent not preempted by ERISA.  This Agreement shall be subject to Article IX and Section 12.15 of the Separation and Redemption Agreement.

8.3          Fiduciary Matters.  DG and SpinCo each acknowledge that actions contemplated to be taken pursuant to this Agreement may be subject to fiduciary duties or standards of conduct under ERISA or other applicable Law, and that no Party shall be deemed to be in violation of this Agreement if such Party fails to comply with any provisions hereof based upon such Party’s good faith determination that to do so would violate such an applicable fiduciary duty or standard.

8.4          Amendment; Waivers; Time for Performance.  Subject to Section 9.12 of the Merger Agreement, no change or amendment will be made to this Agreement, except with the prior written consent of SpinCo and DG by an instrument in writing signed by authorized individuals on behalf of each of the Parties to this Agreement.  Except as otherwise provided in this Agreement, the failure by any Party to comply with any obligation, covenant, agreement or condition under this Agreement may be waived by the Party entitled to the benefit thereof only by a written instrument signed by the Party granting such waiver, but such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.  The failure of any Party to enforce at any time any of the provisions of this Agreement shall in no way be construed to be a waiver of any such provision, nor in any way to affect the validity of this Agreement or any part hereof or the right of any Party thereafter to enforce each and every such provision.  No waiver of any breach of such provisions shall be held to be a waiver of any other or subsequent breach.  No failure or delay on the part of either Party hereto in the exercise of any right hereunder shall impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or agreement herein, nor shall any single or partial exercise or waiver of any such right preclude other or further exercise thereof or of any other right.  Nothing in this Agreement is intended to preclude SpinCo and DG by mutual agreement from taking any of the actions specified in this Agreement at any time prior to the time or times specified herein and to the extent any such actions are taken prior to the time or times specified herein, this Agreement shall be deemed amended to the extent necessary to reflect such actions.

8.5          Binding Effect; Assignment.  This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective legal representatives and successors in interest, and, except as expressly provided herein, nothing in this Agreement, express or implied, is intended to confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Agreement.  Neither party may assign this Agreement or any rights or obligations hereunder, without the prior written consent of the other party, and any such assignment not in compliance with the foregoing shall be void; provided, that notwithstanding the foregoing, without the consent of the other Party hereto, any Party may assign (including by

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way of a pledge) to its lenders or other financing sources any or all of its rights hereunder as collateral security to the extent permitted by applicable law (which assignment shall not relieve such assigning party of its obligations hereunder).  Any permitted assignee shall agree to perform the obligations of the assignor of this Agreement, and this Agreement shall inure to the benefit of and be binding upon any permitted assignee.

8.6          Severability.  If any term or other provision of this Agreement is determined by a nonappealable decision by a court, administrative agency or arbitrator to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either Party.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the fullest extent possible.

8.7          Interpretations.  The headings contained in this Agreement or in any Schedule attached hereto are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  When a reference is made in this Agreement to an Article, Section or Schedule, such reference shall be to an Article or Section of, or a Schedule to, this Agreement, unless otherwise indicated.

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

8.9          Notices.  All notices and other communications among the Parties shall be in writing and shall be deemed to have been duly given (a) when delivered in person, (b) when delivered after posting in the United States mail having been sent registered or certified mail return receipt requested, postage prepaid, (c) when delivered by FedEx or other nationally recognized overnight delivery service, or (d) when delivered by facsimile (in the case of this clause (d) solely if receipt is confirmed), addressed as follows:

DG (prior to the Effective Time)

Digital Generation, Inc.

750 West John Carpenter Freeway, Suite 700

Irving, Texas 75039

Attention: Chief Financial Officer

Facsimile:  (972) 581-2100

with a copy to (which copy shall not be deemed to be notice to DG):

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Latham & Watkins LLP

555 Eleventh Street, N.W., Suite 1000

Washington, D.C. 20004-1304

Attention:  William P. O’Neill

Facsimile:  (202) 637-2201

DG (on or after the Effective Time)

Digital Generation, Inc.

c/o Extreme Reach, Inc.
75 2nd Avenue

Needham, MA  02494
Attention: John Roland, Chief Executive Officer
Facsimile: (877) 484-8836

with a copy to (which copy shall not be deemed to be notice to DG):

Pierce Atwood LLP

100 Summer Street, Suite 2250

Boston, MA  02110
Attention: Timothy C. Maguire, Esq.
Facsimile:  (617) 824-2020

SpinCo

Sizmek Inc.

750 West John Carpenter Freeway, Suite 700

Irving, Texas 75039

Attention: Chief Financial Officer

Facsimile:  (972) 581-2100

with a copy to (which copy shall not be deemed to be notice to SpinCo):

Latham & Watkins LLP

555 Eleventh Street, N.W., Suite 1000

Washington, D.C. 20004-1304

Attention:  William P. O’Neill

Facsimile:  (202) 637-2201

8.10        Limitation of Liability.  IN NO EVENT SHALL SPINCO OR ANY SPINCO SUBSIDIARY BE LIABLE TO DG OR ANY OTHER SUBSIDIARY FOR, AND IN NO EVENT SHALL DG OR ANY OTHER SUBSIDIARY BE LIABLE TO SPINCO OR ANY SPINCO SUBSIDIARY FOR, ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, LOST PROFITS OR DIMINUTION IN VALUE, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING

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NEGLIGENCE) ARISING IN ANY WAY OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.11        Entire Agreement.  The Separation and Redemption Agreement, the Transition Services Agreement, the Merger Agreement, this Agreement, the other Ancillary Agreements and the exhibits and schedules referenced or attached hereto and thereto, constitute the entire agreement between the Parties with respect to the subject matter hereof and thereof and shall supersede all prior written and oral and all contemporaneous oral agreements and understandings with respect to the subject matter hereof and thereof.

8.12        Remedies Cumulative.  All rights and remedies existing under this Agreement or the exhibits or schedules attached hereto are cumulative to, and not exclusive of, any rights or remedies otherwise available.

[Signature Page Follows]

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IN WITNESS WHEREOF, the Parties have signed this Employee Matters Agreement effective as of the date first set forth above.

DIGITAL GENERATION, INC.		SIZMEK INC.
By:	/s/ Craig Holmes	By:	/s/ Neil Nguyen
Name:	Craig Holmes	Name:	Neil Nguyen
Title:	Chief Financial Officer	Title:	President and Chief Executive Officer