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UK ASSIGNMENT AND ASSUMPTION AGREEMENT
among
CANTOR XXXXXXXXXX INTERNATIONAL
CANTOR XXXXXXXXXX INTERNATIONAL HOLDINGS L.P.
eSPEED SECURITIES INTERNATIONAL LIMITED
Dated as of the 9th of December 1999
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ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS AGREEMENT is made and entered into as of this 9th day of December,
1999 between Cantor Xxxxxxxxxx International an unlimited company registered in
England under number 1976691 (the "Assignor"), eSpeed Securities International
Limited a limited company registered in England under number 3809189 (the
"Assignee") and Cantor Xxxxxxxxxx International Holdings L.P. a Delaware limited
partnership ("CFIHLP").
W I T N E S S E T H:
WHEREAS, the Assignor is, among other things, engaged in the business of
operating interactive electronic marketplaces, used principally by financial and
wholesale market participants to trade in fixed income securities, futures,
options and other financial instruments (the "Business").
WHEREAS, the Assignee is a recently formed company that has been set up to
acquire, and subsequently to operate, the Business in accordance with (i) the
Joint Service Agreement (as hereinafter defined) and (ii) the Administrative
Services Agreement (as hereinafter defined) as a separate legal entity.
WHEREAS, the Assignor, among other things, owns, or has the right to use,
certain hardware, software, technologies, systems and other intellectual
property and agreements that are used in the Business.
WHEREAS, the Assignor and the Assignee have agreed among other things
having had regard to a letter from Ernst & Young on the subject, that the value
at the date hereof of the Business to be transferred by the Assignor to the
Assignee (net of the Assumed Liabilities set out in Schedule 1.3) is $4,676,008
(the "Business Value").
WHEREAS, the Assignor proposes to reduce its authorised share capital from
pounds 95,000,000 divided into 75,000,000 Ordinary Shares of pounds 1 each
("Ordinary Shares") and 2,000,000 Preference Shares of pounds 10 each by such an
amount (the "Reduction Amount") as is equal to the product of multiplying the
Business Value, translated to pounds sterling at the closing mid-point spot
exchange rate on the business day (being any day other than a Saturday or a
Sunday on which banks are open for normal banking business in London)
immediately preceding that on which the reduction takes effect, as shown in the
Financial Times published on the day on which the reduction takes effect,
rounding up the resulting amount to the nearest pound), by a fraction of which
the numerator is 74,225,453 and the denominator is 73,730,194, (rounding up the
resulting amount to the nearest pound), the reduced amount of authorised share
capital being divided into such number of Ordinary Shares as is equal to
75,000,000 less the number (the "Reduction Number") of pounds comprised in the
Reduction Amount and 2,000,000 Preference Shares of pounds 10 each, and such
reduction be given effect by:
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(a) cancelling and extinguishing such number of Ordinary Shares
registered in the name of CFIHLP as is equal to such number of
pounds sterling as are comprised in the Business Value translated
into pounds sterling as aforesaid on terms that such capital shall
not be repaid in cash but shall be given effect by the transfer by
the Assignor to the Assignee of the Business and by the issue by the
Assignee of 4,676,008 shares of $1 each (the "Shares"), credited as
fully paid, to CFIHLP with the consent of CFIHLP (as its execution
of this Agreement hereby acknowledges); and
(b) cancelling and extinguishing such number of Ordinary Shares
registered in the name of CFIHLP, LLC (a Delaware limited liability
company) as is equal to the Reduction Number less the number of
Ordinary Shares determined under paragraph (a) above on terms that
the Assignor shall repay in cash to CFIHLP, LLC the amount paid up
or credited as paid up thereon.
NOW THEREFORE, in consideration of the mutual representations, warranties,
covenants and agreements contained herein, and upon the terms and conditions
hereinafter set forth, the parties hereby agree as follows:
ARTICLE 1
TERMS OF ASSIGNMENT
1.1. Assignment. On the terms and subject to the conditions in this
Agreement and for the consideration specified herein, at the Closing (as defined
in Section 1.5 below), the Assignor shall transfer, convey, assign and deliver
to the Assignee, and the Assignee shall acquire and accept from the Assignor
free and clear of all mortgages, pledges, assessments, security interests,
conditional sale or title retention contracts, leases, liens, adverse claims,
Taxes (as hereinafter defined), levies, charges, options, rights of first
refusal, transfer restrictions or other encumbrances of any nature, or any
contracts, agreements or understandings to grant any of the foregoing
(collectively, "Liens"), all of the Assignor's right, title and interest in, to
and under the Business, and to each of the following assets and rights,
including, but not limited to, the assets and rights identified in Schedule 1.1,
in each case to the extent used or held for use principally in the Business, but
excluding the Excluded Assets (as hereinafter defined) (the "Assignment"):
(a) all machinery, equipment, computers, network servers, monitors,
servers and other related items of tangible personal property of the
Assignor, principally used in the Business (the "Equipment");
(b) all fictional business names, trade names, d/b/a names, logos,
Internet domain names (including, without limitation, xxx.xxxxxx.xx.xx),
trademarks, service marks (including, without limitation, eSpeed), trade
dress and any and all UK and foreign
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applications, registrations and renewals therefor, and all the goodwill
associated therewith principally used in the Business (if any)
(collectively, "Marks"); all copyrights in both published works and
unpublished works, and in online works such as Internet web sites, and any
UK or foreign applications, registrations and renewals therefor
principally used in the Business (if any) (collectively, "Copyrights");
all rights in any and all licensed or proprietary computer software,
firmware, middleware, programmes, systems applications, databases and
files (in whatever form or medium), including all material documentation,
relating thereto, and all source and object codes relating thereto
principally used in the Business (if any) (collectively, "Computer
Software and Files"); all know-how, trade secrets, confidential
information, competitively sensitive and proprietary information
(including but not limited to internal pricing information, supplier
information, telephone and telefax numbers, and e-mail addresses),
technical information, data, process technology, drawings and blue prints
principally used in the Business, other than the Information (as
hereinafter defined) (collectively, "Trade Secrets"); and the right to xxx
for past infringement, if any, in connection with any of the foregoing,
including, but not limited to, the intellectual property disclosed in
Schedule 1.1 part B hereto (collectively, the "Intellectual Property");
(c) to the extent allowed, all agreements and arrangements permitting the
Assignor to use the intellectual property, equipment and computer
equipment (as hereinafter defined) owned by third parties, or permitting
third party use of intellectual property, equipment or computer equipment
owned by the Assignor, or for the processing, use, licensing, leasing,
storage, or retrieval of software, data and information principally used
by, and related to, the Business (collectively, "Intellectual Property,
Equipment and Computer Agreements");
(d) any and all accounting business information, management information
and internal reporting data and related books and records (in whatever
form or medium maintained), including but not limited to advertising,
marketing and sales programs, business, marketing and strategic plans,
research and development reports and records, and advertising copy
(including radio and television scripts), creative materials, production
agreements, and all other promotional brochures, flyers, inserts and other
materials used principally in connection with the Business (collectively,
the "Marketing Materials");
(e) all computer tapes, discs and other media which are used to store
Intellectual Property (if any) (the "Computer Equipment");
(f) subject to the provisions of Article 5, all agreements, contracts,
instruments and other documents to which the Assignor is a party that are
listed in Schedule 1.1 part C (the "Assigned Contracts");
(g) all claims of the Assignor against third parties relating to the
Transferred Assets (as hereinafter defined), whether xxxxxx or inchoate,
known or unknown or contingent or non-contingent;
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(h) to the extent transferable, any and all Permits (as hereinafter
defined) used exclusively in connection with the Business; and
(i) prepaid rent and rates valued at US$321,439,
all as the same shall exist on the Closing Date (items (a) through (h)
being, collectively, the "Transferred Assets").
1.2. Excluded Assets. Notwithstanding anything in this Agreement to the
contrary, all assets, properties and rights of the Assignor other than those set
forth in Section 1.1, (including Schedule 1.1) including without limitation, the
following assets, properties and rights of the Assignor (the "Excluded Assets"),
shall be excluded from and shall not constitute part of the Transferred Assets,
and the Assignee shall have no rights, title or interest in or duties or
obligations of any nature whatsoever with respect thereto by virtue of the
consummation of the transactions contemplated by this Agreement:
(a) all contracts and other agreements to which the Assignor is a party,
other than those described in Section 1.1 above (the "Excluded
Contracts");
(b) all rights of the Assignor in and to the trademarks (including
"ESBX"), service marks, and any applications, registrations and renewals
therefor, and all the goodwill associated therewith, licensed by the
Assignor other than those described in Section 1.1(b) (the "Excluded
Marks");
(c) all rights of the Assignor in and to software other than those
described in Section 1.1(b) (the "Excluded Software");
(d) any and all confidential information other than is comprised in the
Trade Secrets;
(e) all rights of the Assignor in the Internet domain names "xx.xx.xx",
"xxxxxxxxxxx.xx.xx", "xxxxxx-xxxxx.xx.xx", "xxxxxx-x-xxxxx.xx.xx",
"xxxxxxxxxxxx.xx.xx", "xxxxxx-xxxxxx.xx.xx", "xxxxxxx-xxxxx.xx.xx",
"xxxxxx.xx.xx", "x-xxxxx.xx.xx", "xxxxxxx.xx.xx" and "x-xxxxx.xx.xx" and
in and to the Internet web site accessed via such domain name, including,
but not limited to, all copyrights in all materials on such sites and the
software underlying such site, all trademarks, service marks, trade names
and goodwill associated therewith, all proprietary computer software,
programmes, applications, databases, files (in whatever form or medium)
and all proprietary information related thereto, in each case only to the
extent that the foregoing is not otherwise required to be listed in
Schedule 3.8(b) hereto;
(f) all rights of the Assignor in, to and under the Data Purchase
Agreement, Data Product Agency and Electronic Trading System Agreement,
dated January 22, 1993, among Cantor Xxxxxxxxxx, XX, Reuters Limited
("Reuters") and Market Data Corporation ("MDC"), as amended, and all other
agreements between Cantor Xxxxxxxxxx XX, Reuters
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and/or MDC or related thereto, as set forth in Schedule 1.2(f) hereto (the
"Reuters Agreement");
(g) all rights of the Assignor with respect to the (i) Agreement, dated
February 23, 1990, between Telerate, Inc. ("Telerate") and CFS, as
amended, and (ii) Master Optional Services Agreement, dated February 23,
1990, between Telerate and MDC, as amended, and all other agreements
between the Assignor, Telerate and/or MDC or related thereto, as set forth
in Schedule 1.2(g) hereto (the "Telerate Agreement");
(h) all right, title and interest with respect to information relating to
bids, offers or trades or any other information on Financial Products (as
defined in the Joint Services Agreement (as hereinafter defined)) created
or received by the Assignor or any of its affiliates (other than the
Assignee) in a brokerage capacity, including, but not limited to,
information licensed, sold, transferred or permitted to be published or
displayed by the Assignor pursuant to the Reuters Agreement and the
Telerate Agreement (the "Information");
(i) all advertising, marketing and sales programs, advertising copy
(including radio and television scripts), creative materials, production
agreements, broadcasting rights, broadcasting and advertising time, space,
allowances and credits and other promotional brochures, flyers, inserts
and other materials used solely in connection with an Excluded Contract
(if any);
(j) any assets, properties, rights and interests relating to the Excluded
Liabilities (as hereinafter defined); and
(k) all rights of the Assignor under this Agreement and the documents and
instruments delivered to the Assignor pursuant to this Agreement.
The Assignor shall bear and pay all of the costs and expenses of the
Assignment except for stamp duty, stamp duty reserve or other similar taxes,
which shall be borne and paid by the Assignee.
1.3. Assumption of Liabilities. Effective as of the Closing Date, the
Assignee will assume and agree to pay, perform and discharge, as and when due,
and indemnify and hold the Assignor harmless from and against, (i) each
liability listed in Schedule 1.3 being liabilities relating to the Business (ii)
each obligation of the Assignor to be performed after the Closing Date with
respect to the Transferred Assets and the Assigned Contracts and (iii) each
other liability of the Assignor thereunder (including liabilities for any breach
of a representation, warranty or covenant, or for any claims for indemnification
contained therein), to the extent and only to the extent that such liability is
due to the actions of the Assignee (or any of the Assignee's affiliates (other
than the Assignor), representatives or agents) after the Closing Date
(collectively, the "Assumed Liabilities"). The Assignee shall not assume, and
shall not be obligated to pay, perform or discharge, any liability or obligation
of the Assignor other than the
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Assumed Liabilities (whether or not related to the Transferred Assets or
Business) (collectively, the "Excluded Liabilities"), and shall not be obligated
for any other claim, loss or liability relating to any act, omission or breach
by the Assignor with respect to the Business, the Transferred Assets or the
Assigned Contracts, for any claim, loss or liability related to the Excluded
Assets or the Excluded Liabilities, all of which, the Assignor shall remain
obligated to pay, perform and discharge and to indemnify and hold the Assignee
harmless against. Without limiting the foregoing, among other things, all
liabilities arising from the matters described in the prospectus attached hereto
(the "Prospectus") under the caption "Legal Proceedings", shall be Excluded
Liabilities except to the extent expressly assumed as provided in Schedule 1.3.
1.4. Consideration. In consideration of the Assignment, in addition to the
assumption of the Assumed Liabilities as provided in Section 1.3, the Assignee
shall issue to CFIHLP the Shares credited as fully paid.
1.5. The Closing.
(a) Date and Place. The closing of the transactions contemplated hereby
(the "Closing") shall take place at the London offices of the Assignor,
Xxx Xxxxxxx Xxxxxx, Xxxxxx XX0X, (or such other place as the Assignor and
the Assignee shall agree) on the date the Assignor so elects, which date
shall be no later than the fourth business day following the date that all
of the conditions to Closing provided in Articles 7 and 8 hereof shall
have been satisfied, or at such other time and/or place and/or on such
other date as the parties may mutually agree (the "Closing Date").
(b) Documents to be delivered and actions to be taken by the Assignor. At
the Closing, the Assignor shall:
(i) deliver to the Assignee a duly executed counterpart to the Joint
Services Agreement (the "Joint Services Agreement") substantially in
the form of Exhibit A hereto;
(ii) deliver to the Assignee a duly executed counterpart to the
Administrative Services Agreement (the "Administrative Services
Agreement") substantially in the form of Exhibit B hereof (together
the Joint Services Agreement and the Administrative Services
Agreement being referred to hereinafter as the "Additional
Agreements");
(iii) make available for collection by the Assignee at the normal
location at which they are held, used or stored and/or give physical
possession to the Assignee or as it may direct of such of the
Transferred Assets as are transferable by delivery;
(iv) effect the capital reduction referred to in the Recitals
hereto;
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(v) deliver to the Assignee all documents of title or other records
establishing title to those Transferred Assets;
(vi) (if requested by the Assignee so to do) deliver to the Assignee
duly executed assignments, transfers or other assurances of and
otherwise vest in the Assignee such other of the Transferred Assets
as are not transferable by delivery, such assignments, transfers or
assurances to be prepared by and at the cost of the Assignor in such
form as the Assignee shall reasonably require and to have been
approved by the Assignor before Closing;
(vii) deliver to the Assignee the originals of all documents in the
Assignor's possession constituting or evidencing the Assigned
Contracts and the Employment Agreements or relating to all equipment
and items which are not owned by the Assignor but are used by it,
otherwise than by way of supply, in the Business at the Closing Date
including without limitation items on loan, lease, licence, or hire
purchase or of which the Assignor is for any reason bailee and items
supplied to the Assignor under a valid retention of title clause or
other terms effective to prevent, or delay, title passing to the
Assignor, together with consents to assignments and/or novation
agreements as may be required to transfer to the Assignee such of
the Assigned Contracts as have been deemed by the Assignee prior to
Closing to be key contracts, duly executed by all parties to them
other than the Assignee;
(viii) deliver to the Assignee all records necessary to enable the
Assignee to carry on the Business, with the exception of the
statutory books of the Assignor;
(ix) give possession to the Assignee of, or otherwise make available
to it, in such form as the Assignee may reasonably require, the
Trade Secrets;
(x) deliver to the Assignee releases of any interests by way of
security (howsoever arising) to which any of the Transferred Assets
or Assigned Contracts are subject (other than floating charges),
duly executed by those entitled to the benefit of such interests;
(xi) deliver to the Assignee a certificate in an agreed form dated
as at the Closing Date from each holder of a floating charge over
assets of the Assignor (if any) to the effect that such floating
charge has not crystallised at that time accompanied by an
acknowledgement by such holder that it consents to the transfer of
the Business and to such assets being transferred to the Assignee
upon such transfer free of such charge and of any other charge which
by virtue of such charge might otherwise attach to them in
consequence of such transfer; and
(xii) execute and deliver to the Assignee such other documents or
instruments to effect the transfer of the Transferred Assets, the
assumption of the Assumed
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Liabilities and the other transactions contemplated hereby, and in
such form, as the Assignee may reasonably request.
(c) Documents to be delivered by the Assignee. At Closing, the Assignee
shall execute and deliver to the Assignor (or as it shall direct):
(i) where relevant executed counterparts of the agreements delivered
by the Assignor under Section 1.5(b);
(ii) such other documents or instruments to effect the transfer of
the Transferred Assets, the assumption of the Assumed Liabilities
and the other transactions contemplated hereby, and in such form, as
the Assignor may reasonably request; and
(iii) a share certificate for the Shares in the name of CFIHLP.
1.6. Definition of Taxes In this agreement Taxes means any form of
taxation, whenever created or unpaid and whether of the United Kingdom or
elsewhere (and without limitation includes income tax, P.A.Y.E., corporation
tax, capital gains tax, capital transfer tax, inheritance tax, stamp duty, stamp
duty reserve tax, value added tax, development land tax, petroleum revenue tax,
withholding tax, rates, Customs and Excise duties, National Insurance
contributions, Social Security and other similar liabilities or contributions)
and generally any amount payable to the revenue, customs or fiscal authorities,
whether of the United Kingdom or elsewhere and all interest and/or penalties
related to or arising in respect thereof.
ARTICLE 2
EMPLOYEES
2.1. Transfer Regulations. The Assignor and the Assignee acknowledge and
agree that the Transfer of Undertakings (Protection of Employment) Regulations
1981 (the "Transfer Regulations") apply to this Agreement and the transfer of
the Business effected by this Agreement is a "relevant transfer" within the
meaning of those regulations and that in accordance with the Transfer
Regulations:
(a) the contracts of employment between the Assignor and the persons
listed in Schedule 2.1 (the "Employees") (save insofar as such contracts
relate to any occupational pension scheme or to any Employee who informs
the Assignor or the Assignee that he objects to becoming employed by the
Assignee under Regulation 5(4A) of the Transfer Regulations) will have
effect after Closing as if originally made between the Assignee and the
Employees;
(b) on Closing all the Assignor's rights, powers, duties and liabilities
under or in connection with each such contract will be transferred to the
Assignee;
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(c) anything done before Closing by or in relation to the Assignor in
respect of each such contract or any Employee will be deemed to have been
done by or in relation to the Assignee; and
(d) Action to be taken by CFIHLP At Closing CFIHLP shall take such actions
and do such things as are reasonably within it power to procure the
effecting of the capital reduction of the Assignor referred to in the
Recitals hereto.
2.2. Apportionment of rights and liabilities. Without prejudice to the
rights and obligations acquired by the Employees as against the Assignee in
consequence of the Transfer Regulations, the Assignor and the Assignee agree
that as between themselves all rights and liabilities, arising or payable, under
or in respect of or in connection with the Employment Agreements (as defined in
Section 2.4 below) or otherwise in respect of the Employees (including all such
rights and liabilities as are transferred or otherwise attach to the Assignee
pursuant to the Transfer Regulations) shall be apportioned as follows:
(a) all rights and liabilities arising or payable on or before the Closing
Date shall belong to the Assignor; and
(b) all rights and liabilities arising or payable after the Closing Date
shall belong to the Assignee.
2.3. Regulation 10 Information. The Assignee shall promptly provide to the
Assignor in writing such information as will enable the Assignor to carry out
its duties under Regulation 10 of the Transfer Regulations.
2.4. Employment Agreements not transferred. If for any reason the contract
or other terms or conditions of employment under which the Employees are for the
time being employed by the Assignor in the Business (the "Employment
Agreements") of any of the Employees is not automatically transferred to the
Assignee pursuant to the Transfer Regulations, the Assignee shall offer to
employ such Employee on terms and conditions no less advantageous to the
Employee than the terms on which he would have been employed had his Employment
Agreement been so transferred.
2.5. Persons other than the Employees. The Assignor and the Assignee
intend that the Transfer Regulations shall apply only to the Employees and
accordingly if any contract of employment (whether oral or written, express or
implied) has been or is at any time entered into by the Assignor in respect of
any person who is not an Employee without the prior consent of the Assignee and
such contract shall have effect or shall be alleged by the person so employed
under it to have effect as if originally made between the Assignee and such
person pursuant to the provisions of Regulation 5 of the Transfer Regulations,
then:
(a) the Assignee may, upon becoming aware of the application of Regulation
5 to such contract or any claim to that effect by the person employed
under it, terminate such
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contract forthwith;
(b) the Assignee shall promptly inform the Assignor of any such claim and
keep the Assignor advised of any action taken by the Assignee in respect
of it; and
(c) the Assignor shall fully indemnify the Assignee against any sums
payable to or for the benefit of such person in respect of his employment
with the Assignor and/or the Assignee and against all other liabilities
whatsoever arising under or in relation to such contract or its
termination and any obligation or liability of whatsoever nature (whether
arising before or after Closing) in relation to or in connection with the
employment of such person in the Business.
2.6. Settlement of Claims. Without prejudice to Section 2.5(c) the
Assignee shall be entitled to settle any claim brought against it after Closing,
by any such person as is described in Section 2.5 provided that such claim is
reasonable and that it has consulted with the Assignor before making such
settlement.
2.7. Joint Letter. On such date as the Assignor and the Assignee may agree
in writing, but in any event by not later than the first business day following
Closing, the Assignor and the Assignee shall join in delivering to each of the
Employees a joint letter from the Assignor and the Assignee in an agreed form.
Such letter shall be handed personally to those Employees who are present for
work on the date selected for such delivery and shall be despatched on that date
by first-class post to those Employees who are not so present.
2.8. Pension Arrangements. The Assignor and the Assignee shall procure
that as from Closing the pension arrangements in respect of the Employees shall
be dealt with in such a way as to ensure that the Employees rights are not
prejudiced by the Assignment.
2.9. Objections to the transfer. If any Employee informs the Assignor or
the Assignee that he objects to the transfer of his employment to the Assignee
under this Agreement pursuant to the Transfer Regulations, the Assignor or the
Assignee (as the case may be) shall notify the other forthwith. If the relevant
employee shall refuse to withdraw such objections, such person shall be deemed
not to be an Employee.
2.10. New employees. If the Assignor shall take any person into its
employment in connection with the Business between the date of this Agreement
and Closing, then, provided the Assignee's written consent thereto shall have
been obtained (but not otherwise), such person shall be deemed to be an
Employee.
2.11. Dismissals. If any person employed in connection with the Business
shall be dismissed or his employment shall otherwise terminate in any way
between the date of this Agreement and Closing, then, without prejudice to the
Assignee's rights in respect of such dismissal or termination, such person shall
be deemed not to be an Employee.
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2.12. Amendments to Schedule 2.1. On any person being deemed to be an
Employee or not to be an Employee pursuant to Sections 2.10 or 2.11, Schedule
2.1 shall be deemed to be amended accordingly.
2.13. Indemnity. The Assignor will indemnify the Assignee against any
loss, cost, damage or expense suffered or incurred by reason of any proceeding,
claim or demand by any Employee (or, where applicable, their employee
representatives):
(a) in relation to the employment or termination of employment of any
Employee during the period ending on Closing (save for any proceeding,
claim or demand arising from any act or omission of the Assignee)
including for the avoidance of doubt liability for personal injuries,
breach of contract and infringement of any relevant statutory provision;
(b) in relation to the breach by the Assignor prior to Closing of any
collective agreement or other custom, practice or arrangement (whether or
not legally binding) with a trade union or staff association in respect of
any Employee (but only in respect of the period ending on Closing);
(c) in relation to the operation of the Transfer Regulations upon the
contract of employment of any employee of the Assignor whose name is not
listed in Schedule 2.1; or
(d) to the extent that it arises from any failure by the Assignor to
comply with its obligations under Regulation 10 of the Transfer
Regulations or section 188 of the Trade Union and Labour Regulations
Consolidation Xxx 0000 in respect of any Employee.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE ASSIGNOR
The Assignor hereby represents and warrants to the Assignee with respect
to itself as follows except as otherwise disclosed in Schedules 3.3, 3.4, 3.5,
3.6, 3.8(b) and 3.9 to this Agreement (the "Disclosure Schedules"), which
Disclosures Schedule specifically reference the particular sections hereof to
which they relate:
3.1. Organisation and Good Standing. The Assignor is duly organised,
validly existing and in good standing under the laws of England and Wales and is
duly qualified to do business and, except as would not singly or in the
aggregate have a Material Adverse Effect, is in good standing in each
jurisdiction in which the ownership, use or leasing of its assets or the conduct
or nature of its business makes such qualification necessary. "Material Adverse
Effect" means any event, change, changes, effect or effects that individually or
in the aggregate are
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materially adverse to (x) the ownership, use, operation or value of the
Transferred Assets or (y) the condition (financial or other) or results of
operations of, or prospects for, the Business.
3.2. Authority. The Assignor has the requisite corporate power and
authority to execute and deliver this Agreement and the Additional Agreements,
to perform its obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby. The execution and delivery by the
Assignor of this Agreement and the Additional Agreements and the consummation by
the Assignor of the transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate, stockholder, member or partner action,
and no other corporate, partner or member proceedings on the part of the
Assignor or any affiliate of the Assignor (other than the Assignee),
respectively, are necessary to authorize the execution and delivery by the
Assignor of this Agreement or the Additional Agreements or to consummate the
transactions contemplated hereby and thereby. This Agreement has been, and at
the Closing the Additional Agreements will be, duly executed and delivered by
the Assignor and constitutes or will constitute, as applicable, legal, valid and
binding obligations of the Assignor enforceable against the Assignor in
accordance with their respective terms.
3.3. No Conflict; Required Filings and Consents.
(a) The execution, delivery and performance by the Assignor of this
Agreement and the Additional Agreements do not, and the consummation of
the transactions contemplated hereby and thereby will not, (i) conflict
with or violate the certificate of incorporation, Memorandum or Articles
of Association or similar organisational or governing document of the
Assignor, or any affiliate thereof as the case may be; (ii) conflict with
or violate any local or foreign laws, rules, statutes, ordinances,
regulations, judgments, settlement agreements, orders or decrees or
arbitration proceedings or pronouncements (collectively "Laws") applicable
to the Assignor or any affiliate thereof, the Business or the Transferred
Assets or by which the Assignor or any affiliate thereof, the Business or
the Transferred Assets are bound or affected; or (iii) result in any
material breach of or constitute a material default (or an event that with
notice or lapse of time or both would become a material default) under, or
give to any other person any right of termination, amendment, acceleration
or cancellation of, or result in the creation of a Lien on any of the
Transferred Assets pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument
or obligation to which the Assignor or any affiliate thereof is a party or
by which the Assignor or any affiliate thereof, the Business or the
Transferred Assets are bound or affected; and
(b) The execution, delivery and performance by the Assignor of this
Agreement and the Additional Agreements do not and the consummation of the
transactions contemplated hereby and thereby do not require the Assignor
or any of its affiliates to seek, obtain or receive any consent, approval,
authorisation or permit from, or make any filing with or notification to,
any governmental agency, authority or court or any other person, body or
committee except for any consents, approvals any authorisations or permits
as have been
12
obtained or filings or notifications as have been made, or as would not
singly or in the aggregate if not obtained or made, have a Material
Adverse Effect.
3.4. Permits; Compliance with the Law. The Assignor is in possession of
all franchises, grants, authorisations, licences, permits, easements, variances,
exemptions, consents, certificates, approvals and orders necessary for it to own
and use the Transferred Assets as presently owned and used and to carry on the
Business as it is now being conducted (the "Permits"), except for those Permits
the failure of which to obtain or maintain would not result in a Material
Adverse Effect, and no suspension, revocation, cancellation or refusal to review
any of the Permits has occurred, or to the knowledge of the Assignor, is
threatened or anticipated. Each of the Permits is listed in Schedule 3.4. The
Assignor has conducted and is conducting the Business, and has owned, used and
operated and owns, uses and operates the Transferred Assets in compliance with,
and not in violation of, (i) any Law applicable to it or by which it, the
Business or the Transferred Assets is bound or affected or (ii) any of the
Permits (except in either case for any such violations as, singly or in the
aggregate, would not have a Material Adverse Effect).
3.5. Title to Transferred Assets. The Assignor owns, free and clear of any
Liens, and has the full right to sell, assign and convey, all of the Transferred
Assets, and at Closing will convey the Transferred Assets to the Assignee, free
and clear of any Liens.
3.6. Absence of Litigation. Except as would not singly or in the aggregate
have a Material Adverse Effect, or is disclosed in the Prospectus, there is no
pending or threatened, nor has there been at any time during the twelve months
preceding the date hereof any, claim, complaint, action, suit, litigation,
proceeding or arbitration or, to the Assignor's knowledge, any inquiry or
investigation of any kind by any consumer protection agency or other
governmental or self-regulatory agency, or any other person or entity which
seeks to enjoin, delay or restrict any of the transactions contemplated by this
Agreement or the Additional Agreements or which involves the Business or any of
the Transferred Assets. Except as would singly or in the aggregate have a
Material Adverse Effect, neither the Assignor nor any affiliate of the Assignor
are subject to any judgment, order, writ, injunction, decree or award which
relates to any of the Transferred Assets or to the Business.
3.7. Contracts; No Default; Etc. Schedule 1.1 part C lists each Assigned
Contract. Correct and complete copies of each Assigned Contract, together with
all amendments, supplements and other instruments (including side letters)
thereto effecting a modification or waiver of the terms thereof, have been
delivered to the Assignee. Each Assigned Contract is valid, subsisting and, to
the Assignor's knowledge, enforceable in accordance with its terms, save only
that such enforceability may be affected by bankruptcy, insolvency, fraudulent
conveyance, moratorium and similar laws affecting the rights of creditors
generally and by general principles of equity (whether considered in a
proceeding at law or in equity). Each such Assigned Contract is in full force
and effect, no written notice of termination or non-renewal of any Assigned
Contract has been given to the Assignor or, to the knowledge of the Assignor, is
13
anticipated, and there is no material default (or any event known to the
Assignor which, with the giving of notice or lapse of time or both, would
constitute a material default) by the Assignor or, to the knowledge of the
Assignor, by any other party to any such Assigned Contract, in the due timely
payment or performance of any obligation to be performed or paid under any
Assigned Contract.
3.8. Intellectual Property and Computer Assets.
(a) Except as would not singly or in the aggregate have a Material Adverse
Effect, the Assignor (or an affiliate of the Assignor) owns all right,
title and interest in, or has valid and subsisting licence rights
sufficient to use and to continue to use, all Intellectual Property
principally used in the conduct of the Business as currently conducted by
the Assignor. All Intellectual Property necessary for the conduct of the
Business as described in the Prospectus (other than the intellectual
property included in the Excluded Assets) is being transferred to the
Assignee hereunder. Except as would not singly or in the aggregate have a
Material Adverse Effect, all Intellectual Property is free and clear of
any and all Liens.
(b) Schedule 3.8(b) lists all of the Assignor's UK and foreign
registrations and applications issued by, filed with or recorded by any
governmental regulatory authority with respect to the Intellectual
Property (if any). Except as singly or in the aggregate would not have a
Materially Adverse Effect, all of such registrations and applications are
valid and in full force and effect and all necessary actions to maintain
the registrations or applications for registration of such Intellectual
Property have been taken or instructions have been given that such actions
be taken, and such actions will be taken as of the date of this Agreement.
3.9. Undisclosed Liabilities. Except as singly or in the aggregate, would
not have a Materially Adverse Effect of the Disclosure Schedules, there are no
claims, losses, obligations or liabilities of, relating to or affecting the
Assignor or any of the Transferred Assets.
3.10. Entire Business. The Transferred Assets, together with the services
to be provided by the Assignor or its affiliates pursuant to the (i)
Administrative Services Agreement and (ii) Joint Services Agreement, constitute
all the assets, properties and rights necessary for the Assignee to conduct the
Business in all material respects as described in the Prospectus.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE ASSIGNEE
The Assignee hereby represents and warrants to the Assignor as follows:
4.1. Organisation and Good Standing. The Assignee is a limited liability
company duly organised, validly existing and in good standing under the laws of
England and Wales. The Assignee has the requisite power and authority to
execute, deliver and perform this Agreement and to consummate the transactions
contemplated hereby.
4.2. Authority; Binding Effect. The Assignee has taken all necessary
corporate actions to authorise, execute and deliver this Agreement and to
perform all of its obligations under, and to consummate the transactions
contemplated by, this Agreement. This Agreement has been duly and validly
executed by the Assignee. This Agreement constitutes the valid and binding
obligation of the Assignee, enforceable against the Assignee in accordance with
its terms, subject to the effect of reorganisation, bankruptcy, insolvency,
moratorium, fraudulent conveyance and other similar laws relating to or
affecting creditors' rights generally and court decisions with respect thereto,
and subject to the application of equitable principles and the discretion of the
court (regardless of whether the enforceability is considered in a proceeding in
equity or at law).
ARTICLE 5
ASSIGNED CONTRACTS
5.1. Novation; Assignment. The Assignor and the Assignee shall, to the
extent possible, arrange for the Assigned Contracts to be novated. To the extent
that the Assignor and the Assignee agree that any particular Assigned Contract
should not be novated, then, as regards those particular Assigned Contracts, the
Assignor hereby assigns with effect from Closing, to the Assignee all of those
particular Assigned Contracts which are capable of assignment and (i) which do
not require the consent of the other parties thereto to any such assignment or
(ii) for which consent to assignment has been obtained from the other parties
thereto prior to Closing.
5.2. Assigned Contract not Novated or Assigned. All other Assigned
Contracts shall as from Closing (pending an assignment or novation thereof) be
held by the Assignor on trust for the Assignee absolutely. Insofar as such
Assigned Contracts:
(a) are not assignable or cannot be assigned without consent or without
such assignment constituting an event of default or termination, the
Assignor shall at the option of the Assignee:
(i) use all reasonable endeavours to procure that any requisite
consent is obtained;
15
or
(ii) use all reasonable endeavours to procure that the Assignee be
granted corresponding rights (and for this purpose shall do all such
acts and things and make all such representations as the Assignee
may reasonably require) and, subject thereto, that the existing
arrangements be terminated; or
(iii) use all reasonable endeavours to procure that all relevant
third parties waive the relevant provisions; or
(iv) execute (or procure there to be executed) a declaration of
trust for the benefit of and in favour of the Assignee; or
(v) otherwise deal with the same as the Assignee may reasonably
direct; or
(b) cannot effectively be transferred to, or the obligations thereunder
cannot effectively be assumed by, the Assignee except by an agreement of
novation with one or more third party:
(i) each of the Assignor and the Assignee shall use their respective
reasonable endeavours to procure that the same be novated; and
(ii) unless and until any such novation is entered into, the
Assignor shall do or procure to be done all such acts and things in
relation thereto as the Assignee may reasonably require.
5.3. Receivables and outgoings; rights and liabilities. In respect of each
of the Assigned Contracts:
(a) as between the Assignor and the Assignee the Assigned Contract shall
be deemed to have been duly transferred to the Assignee as from the
Closing Date;
(b) responsibility for the collection of receivables and the discharge of
outgoings payable under the Assigned Contracts and the respective
obligations of the Assignor and the Assignee to account to or reimburse
each other with respect to receivables so collected and outgoings so
discharged shall be determined in accordance with the Joint Services
Agreement.
(c) as regards all rights under the Assigned Contracts other than
receivables and all liabilities under the Assigned Contracts other than
outgoings:
(i) the Assignor shall exercise all such rights and discharge all
such liabilities which fall due on or before the Closing Date and
the Assignee shall exercise all such rights and discharge all such
liabilities which fall due after the Closing Date; and
16
(ii) the Assignor shall account to the Assignee for the benefit of
all such rights exercised by the Assignor to the extent that they
arise after the Closing Date and the Assignee shall account to the
Assignor for the benefit of all such rights exercised by the
Assignee to the extent that they arise on or before the Closing
Date.
5.4. Matters arising prior to Closing. Nothing in this Agreement:
(a) shall require the Assignee to perform any obligation falling due for
performance, or which should have been performed, prior to Closing;
(b) shall make the Assignee liable for any act, neglect, default or
omission in respect of any of the Assigned Contracts committed by the
Assignor, or occurring, prior to Closing; or
(c) shall impose any obligation on the Assignee for or in respect of any
service performed by the Assignor prior to Closing.
5.5. Mutual Indemnities. The Assignor shall fully indemnify the Assignee
against all liabilities under the Assigned Contracts to the extent that they
arise on or before Closing and, subject to Sections 5.6 and 5.7, the Assignee
shall fully indemnify the Assignor against all liabilities under the Assigned
Contracts to the extent that they arise after Closing.
5.6. Rescission or termination by a third party. If the other parties to
an Assigned Contract shall rescind or terminate or purport to rescind or
terminate the Assigned Contract or shall make any other claim on the ground that
the transfer or purported transfer of the Assigned Contract by the Assignor to
the Assignee constitutes a breach of, or event of default under, the Assigned
Contract the Assignor shall fully indemnify the Assignee against all damages or
other compensation sought by such other party or parties under any such claim.
5.7. Liabilities arising as a result of Closing. Notwithstanding anything
in the previous provisions of this Article 5, the Assignor shall be liable for
and shall discharge at its own expense and for its own account and fully
indemnify the Assignee against all liabilities which arise in respect of any of
the Assigned Contracts in consequence of the execution or Closing of this
Agreement and for the purposes of this Article 5 all such liabilities shall be
deemed to arise on or before the Closing Date.
5.8. Benefit of warranties. The Assignor shall at the request of the
Assignee and at the Assignee's expense use its reasonable endeavours to extend
to the Assignee and enforce on its behalf the benefit of any warranties, express
or implied, given to the Assignor in respect of the goods or services supplied
under any of the Assigned Contracts which are supply contracts.
5.9. Other contracts. The Assignor undertakes to perform any contract or
other of its obligation relating to the Business which the Assignee is not by
this Agreement required to perform. The Assignor shall remain solely responsible
for all contracts to which it is a party
17
which are not Assigned Contracts.
5.10. Right of the Assignee to treat Assigned Contracts as excluded. If
any of the Assigned Contracts which has not been assigned to the Assignee at
Closing has not been novated, assigned or otherwise transferred to the Assignee
within a period of 90 days after Closing, the Assignee may by notice in writing
given to the Assignor elect to treat such Assigned Contract as excluded from the
transfer referred to in Article 1 and as from receipt by the Assignor of such
notice:
(a) neither the Assignor nor the Assignee shall have any further
obligation to the other with regard to the transfer to the Assignee of
that Assigned Contract;
(b) the Assignor and the Assignee shall be released from their obligations
to each other with respect to that Assigned Contract and the Assignor
shall reimburse the Assignee, and shall fully indemnify it against, all
payments made or costs incurred by the Assignee in prior performance of
those obligations after making due allowance for any payments or other
benefits under the Assigned Contract which have been received by the
Assignee; and
(c) the Assignor shall procure that the Assigned Contract is terminated as
soon as practicable and the Assignor shall be solely liable for, and shall
fully indemnify and keep the Assignee indemnified against, all
liabilities, claims, expenses, losses or damages arising under the
Assigned Contract or in respect of its termination and the release of the
Assignor from all further obligations under it.
5.11. Third Party consents. At its own expense the Assignor will give any
notices to third parties, and will use its reasonable efforts to obtain any
third party consents, that the Assignee may request in connection with the
transaction contemplated by this Agreement, including, but not limited to, those
consents listed in Schedule 5.11. Each party to this Agreement will give notices
to, make any filings with, and use its reasonable best efforts to obtain any
authorisations, consents, and approvals of governments and governmental agencies
in connection with, the transactions contemplated by this Agreement.
ARTICLE 6
INDEMNIFICATION
6.1. The Assignor's Indemnification Obligations. Subject to the terms and
conditions of this Article 6, the Assignor agrees to defend, indemnify and hold
the Assignee, its affiliates and assigns and their respective officers,
directors, agents, attorneys, employees and representatives harmless from and
against any and all liabilities, losses, costs, damages, expenses, penalties,
deficiencies, fines and Taxes, including, without limitation, reasonable legal
18
and other expenses (collectively, "Damages"), directly or indirectly arising out
of, resulting from or relating to:
(a) any breach of any representation, warranty, covenant, agreement or
obligation of the Assignor contained in this Agreement;
(b) any Excluded Liability;
(c) the conduct of the Business, and the ownership, use and operation of
the Transferred Assets, on or prior to the Closing Date; and
(d) the use, operation or ownership of the Excluded Assets prior to or
after Closing including, without limitation, the Excluded Software.
6.2. The Assignee's Indemnification Obligations. Subject to the terms and
conditions of this Article 6, the Assignee agrees to defend, indemnify and hold
the Assignor, its affiliates, officers, directors, agents, attorneys, employees
and representatives harmless from and against any and all Damages directly or
indirectly arising out of, resulting from or relating to:
(a) any breach of any representation, warranty, covenant, agreement or
obligation of the Assignee contained in this Agreement; or
(b) any Assumed Liability (including, without limitation, any failure by
the Assignee to perform pursuant hereto the obligations to be performed by
it after the Closing under any Assigned Contracts or the use, operation or
ownership of the Transferred Assets or operation of the Business after
Closing).
6.3. Claims for Indemnification; Defence of Indemnified Claims. For
purposes of this Section, the party entitled to indemnification shall be
referred to as the Indemnified Party and the party required to indemnify shall
be referred to as the Indemnifying Party. In the event that the Indemnifying
Party shall be obligated to the Indemnified Party pursuant to this Article 6 or
in the event that a suit, action, investigation, claim or proceeding is begun,
made or instituted as a result of which the Indemnifying Party may become
obligated to the Indemnified Party hereunder, the Indemnified Party shall give
prompt written notice to the Indemnifying Party of the occurrence of such event,
specifying the basis for such claim or demand, and the amount or estimated
amount thereof to the extent then determinable (which estimate shall not be
conclusive of the final amount of such claim or demand); provided, however, that
the failure to give such notice shall not constitute a waiver of the right to
indemnification hereunder, except to the extent that the Indemnifying Party is
actually prejudiced in a material respect thereby. The Indemnifying Party agrees
to defend, contest or otherwise protect against any such suit, action,
investigation, claim or proceeding at the Indemnifying Party's own cost and
expense with counsel of its own choice, who shall be, however, reasonably
acceptable to the Indemnified Party. The Indemnifying Party may not make any
compromise or settlement without the prior written consent of the Indemnified
Party (which will not be unreasonably withheld or delayed) and the
19
Indemnified Party shall receive a full and unconditional release reasonably
satisfactory to it pursuant to such compromise or settlement. The Indemnified
Party shall have the right but not the obligation to participate at its own
expense in the defence thereof by counsel of its own choice. If requested by the
Indemnifying Party, the Indemnified Party shall (at the Indemnifying Party's
expense) (i) cooperate with the Indemnifying Party and its counsel in contesting
any claim or demand which the Indemnifying Party defends, (ii) provide the
Indemnifying Party with reasonable access during normal business hours to its
books and records to the extent that such books and records relate to the
condition or operation of the Business and are requested by the Indemnifying
Party to perform its indemnification obligations hereunder, and to make copies
of such books and records, and (iii) make personnel available to assist in
locating any books and records relating to the Business or whose assistance,
participation or testimony is reasonably required in anticipation of,
preparation for, or the prosecution and defence of, any claim subject to this
Article 6. In the event that the Indemnifying Party fails timely to defend,
contest or otherwise protect the Indemnified Party against any such suit,
action, investigation, claim or proceeding, the Indemnified Party shall have the
right to defend, contest or otherwise protect the Indemnified Party against the
same and may make any compromise or settlement thereof and recover the entire
cost thereof from the Indemnifying Party, including, without limitation,
reasonable attorneys' fees, disbursements and all amounts paid as a result of
such suit, action, investigation, claim or proceeding or compromise or
settlement thereof.
6.4. Payments; Non-Exclusivity Payments; Non-Exclusivity. Any amounts due
to an Indemnified Party under this Article 6 shall be due and payable by the
Indemnifying Party within fifteen (15) business days after (i) in the case of a
claim which does not involve any third party, receipt of written demand therefor
and (ii) in the case of a claim which involves a third party, the final
disposition of such claim or demand, provided legal and other out-of-pocket
costs and expenses are reimbursed currently within fifteen (15) business days
after demand therefor. The remedies conferred in this Article 6 are intended to
be without prejudice to any other rights or remedies available at law or equity
to the Indemnified Parties, now or hereafter.
ARTICLE 7
CONDITIONS TO THE ASSIGNEE'S OBLIGATIONS
The obligations of the Assignee to consummate the transactions
contemplated hereby shall be subject to the fulfillment on or prior to the
Closing Date of the following conditions any, or all of which may be waived in
whole or in part by the Assignee to the extent permitted by applicable law:
7.1. Representations, Warranties and Covenants of the Assignor. The
Assignor shall have complied in all material respects with all of its agreements
and covenants contained herein (including the obligations of the Assignor to
deliver the documents specified in Section 1.5) to be performed at or prior to
the Closing Date, and all of the representations and warranties of the
20
Assignor contained herein shall be true in all material respects on and as of
the Closing Date with the same effect as though made on and as of the Closing
Date, except to the extent that such representations and warranties were made as
of a specified date and, as to such representations and warranties, the same
shall continue on the Closing Date to have been true in all material respects as
of the specified date.
7.2. Other Consents and Filings. All material approvals and consents of or
filings with governmental or regulatory authorities, and all material approvals
and consents of any other persons (including, without limitation, all third
party consents under each of the Assigned Contracts), required to permit the
consummation of all of the transactions contemplated hereby shall have been
obtained or made, as the case may be, to the reasonable satisfaction of the
Assignee; provided, however, that it shall not be a condition to Assignee's
obligation to close the transactions contemplated hereby if the failure to
obtain any such approvals, consents or filings would not be material to the
Business or the Transferred Assets. For purposes of this Section 7.2, it is
understood and agreed that the failure to obtain any of the approvals, consents
and filings listed in Schedule 7.2 shall be deemed to be material to the
Business or the Transferred Assets.
7.3. Absence of Litigation. No proceeding, action, suit, investigation,
litigation or claim challenging the legality of, or seeking to restrain,
prohibit or modify the transactions contemplated by this Agreement or the
Additional Agreements shall have been instituted and not settled or otherwise
terminated.
7.4. No Prohibition. No law, statute, rule or regulation or injunction,
order, judgment, ruling, decree or settlement of any court or administrative
agency shall be in effect which prohibits the Assignee from consummating the
transactions contemplated hereby or operating any Transferred Asset after the
Closing Date.
ARTICLE 8
CONDITIONS TO THE ASSIGNOR'S OBLIGATIONS
The obligations of the Assignor to consummate the transactions
contemplated hereby shall be subject to the satisfaction (or waiver by the
Assignor) on or prior to the Closing Date of all of the following conditions:
8.1. Representations, Warranties and Covenants of the Assignee. The
Assignee shall have complied in all material respects with all of its agreements
and covenants contained herein (including the obligation of the Assignee to
deliver the documents specified in Section 1.5) to be performed at or prior to
the Closing Date, and all of the representations and warranties of the Assignee
contained herein shall be true in all material respects on and as of the Closing
Date with the same effect as though made on and as of the Closing Date, except
to the extent that such
21
representations and warranties were made as of a specified date and, as to such
representations and warranties, the same shall continue on the Closing Date to
have been true in all material respects as of the specified date.
8.2. No Prohibition. No law, statute, rule or regulation or injunction,
order, judgment, ruling, decree or settlement of any court or administrative
agency shall be in effect which prohibits the Assignor from consummating the
transactions contemplated hereby.
ARTICLE 9
TERMINATION PRIOR TO CLOSING
9.1. Termination. This Agreement may be terminated at any time prior to
the Closing:
(a) by the mutual written consent of the Assignee and the Assignor; or
(b) by either the Assignor or the Assignee in writing, without liability
to the terminating party on account of such termination (provided that the
terminating party is not otherwise in breach of this Agreement), if there
shall have been a material breach by the other party of its
representations, warranties, covenants or agreements contained herein, the
non-breaching party has notified the breaching party of the breach, and
the breach has continued without cure for a period of 30 days after such
notice of breach.
9.2. Effect on Obligations. Termination of this Agreement pursuant to this
Article shall terminate all obligations of the parties hereunder; provided,
however, that termination pursuant to paragraph (b) of Section 9.1 shall not
relieve any party that breached its covenants or agreements contained herein or
in any related agreement from any liability to the other party hereto by reason
of such breach.
ARTICLE 10
MISCELLANEOUS
10.1. Successors and Assigns. This Agreement shall not be assignable by
the Assignee without the prior written consent of the Assignor. The terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors and permitted assigns of the parties hereto.
10.2. Headings. The headings of the Articles and Sections of this
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction hereof.
22
10.3. Modification and Waiver. No amendment, modification or alteration of
the terms or provisions of this Agreement shall be binding unless the same shall
be in writing and duly executed by the parties hereto; provided, however, that
each amendment, modification, alteration or waiver hereof or hereunder must be
approved by a majority of the outside directors of eSpeed, Inc.. For purposes of
this Agreement, an outside director shall mean a director who is not an
employee, partner or affiliate (other than solely by reason of being an eSpeed,
Inc. director) of eSpeed, Inc., Cantor Xxxxxxxxxx, X.X. or any of their
respective affiliates. No waiver of any of the provisions of this Agreement
shall be deemed to or shall constitute a waiver of any other provision hereof
(whether or not similar). No delay on the part of any party in exercising any
right, power of privilege hereunder shall operate as a waiver thereof.
10.4. Broker's Fees. Each party represents and warrants that no broker,
finder or investment banker is entitled to any brokerage, finder's or other fee
or commission in connection with the transactions contemplated hereby.
10.5. Expenses. The Assignor and the Assignee shall pay its own costs and
expenses incurred in connection with the preparation and execution and delivery
of this Agreement, including, without limiting the generality of the foregoing,
fees and expenses of financial consultants, accountants and counsel provided
that the Assignee shall bear the cost of any stamp duty, stamp duty reserve and
similar taxes in connection with any transfer of assets pursuant to this
Agreement. The obligation to pay expenses pursuant to this Section 10.5 shall
not in any way limit or expand any obligation of the Assignor or the Assignee to
bear and pay costs and expenses relating to the actual assignment of Transferred
Assets pursuant to Section 1.1.
10.6. Notices. Any notice, request, instruction or other document to be
given hereunder by either party hereto to the other party shall be in writing
and delivered personally or sent by electronic facsimile transmission, by
overnight courier or by registered or certified mail, postage prepaid,
If to the Assignor to:
Cantor Xxxxxxxxxx International
Xxx Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: General Counsel
Fax Number: 0000 000 0000
If to the Assignee to:
eSpeed Securities International Limited
Xxx Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
23
Attention: General Counsel
Fax Number: 0000 000 0000
If to CFIHLP:
Xxx Xxxxx Xxxxx Xxxxxx, 000 Xxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Fax Number: + 000 000 0000
or at such other address for a party as shall be specified by like notice. Any
notice which is delivered personally or by a form of written telecommunications
in the manner provided herein shall be deemed to have been duly given to the
party to whom it is directed upon the actual receipt by such party. Any notice
which is addressed and sent in the manner herein provided shall be conclusively
presumed to have been duly given to the party to which it is addressed at the
close of business, local time of the recipient, on the first day, if mailed by
overnight courier, and otherwise on the third day, after the day it is so sent.
10.7. Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of England applicable to agreements made and to be
performed wholly within such jurisdiction. Each of the parties hereto hereby
irrevocably and unconditionally consents to submit to the exclusive jurisdiction
of the High Court of Justice in England for any litigation arising out of or
relating to this agreement and the transactions contemplated hereby (and agrees
not to commence any litigation relating thereto except in such courts), and
further agrees that service of any process, summons, notice or document by
registered mail to its respective address set forth in section 10.6 shall be
effective service of process for any litigation brought against it in such
court. Each of the parties hereto hereby irrevocably and unconditionally waives
any objection to the laying of venue of any litigation arising out of this
agreement or the transactions contemplated hereby in the High Court of Justice
in England, and hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such litigation brought in any
such court has been brought in an inconvenient forum.
10.8. Other Covenants. Subject to Section 7.2, to the extent that any
consents needed to assign to the Assignee any of the Transferred Assets have not
been obtained on or prior to the Closing Date, this Agreement shall not
constitute an assignment or attempted assignment thereof if such assignment or
attempted assignment would constitute a breach thereof. If any such consent
shall not be obtained on or prior to the Closing Date, then (i) the Assignee and
the Assignor, if required under applicable law, shall use their reasonable best
efforts in good faith to obtain such consent as promptly as practicable
thereafter (provided that reasonable best efforts shall not include the payment
of monies to any third party) and (ii) until such consent is obtained, the
parties shall use reasonable efforts in good faith to cooperate and to cause
each of their
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respective affiliates to cooperate, in any lawful arrangement (including
licensing, subleasing or subcontracting if permitted) designed to provide to the
Assignee the operational and economic benefits under any such Transferred
Assets.
10.9. Disclosure Schedule and Exhibits; Entire Agreement. The Disclosure
Schedules, and all exhibits and attachments to the Disclosure Schedules, an all
exhibits to, and documents expressly incorporated into this Agreement, and any
other attachments to this Agreement are hereby incorporated into this Agreement
and are made a part hereof as if set out in full in this Agreement. This
Agreement (and the agreements, certificates and other documents delivered
hereunder), unless otherwise provided herein, supersedes all other prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof and constitutes the entire agreement among
the parties hereto with respect to the subject matter hereof.
10.10. Further Assurances. At its own expense each party hereto shall
execute, deliver, file and record, or cause to be executed, delivered, filed and
recorded, such further agreements, instruments and other documents and take, or
cause to be taken, such further actions, as the other party may reasonably
request as being necessary or advisable to effect or evidence the transactions
contemplated by this Agreement. Furthermore, each party hereto agrees to comply
with all applicable laws relating to the conduct of its business.
10.11. Survival of Representations and Warranties. All of the
representations and warranties of the Assignor and the Assignee contained in
this Agreement shall survive Closing (even if the damaged party knew or had
reason to know of any misrepresentation or breach of warranty at the time of
Closing) and continue in full force and effect for ten (10) years thereafter
(subject to any applicable statutes of limitations).
10.12. Invalid Provisions. If any provision of this Agreement is held to
be illegal, invalid or unenforceable, and if the rights or obligations of any
party hereto under this Agreement will not be materially and adversely affected
thereby, (i) such provision will be fully severable, (ii) this Agreement will be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part hereof, (iii) the remaining provisions of this
Agreement will remain in full force and effect and will not be affected by the
illegal, invalid or unenforceable provision or by its severance herefrom and
(iv) in lieu of such illegal, invalid or unenforceable provision, there will be
added automatically as a part of this Agreement a legal, valid and enforceable
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible.
10.13. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original,
and all of which shall constitute the same instrument.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed on its behalf as of the date first above written.
SIGNED by ) Xxx Xxxxxxx
for and on behalf of ) Chief Executive Officer and President
CANTOR XXXXXXXXXX )
INTERNATIONAL )
SIGNED by ) Xxx Xxxxxxx
for and on behalf of ) Director
eSPEED SECURITIES )
INTERNATIONAL LIMITED )
SIGNED by ) Xxxxxxx X. Xxxxxxx
for and on behalf of ) Senior Managing Director
CANTOR XXXXXXXXXX )
INTERNATIONAL HOLDINGS L.P. )
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