ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS AGREEMENT is made and entered into as of this ____ day of _______
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 has resolved to reduce its share capital by the
sum of(pound)[ ], and to apply the reserve arising upon such reduction:
(a) as to the sum of (pound)[ ], being the share of such reserve
attributable to so much of that share capital as is represented by [ ]
shares of the Assignor held by CFIHLP, LLC, (a Delaware limited
liability company) by way of payment in cash to CFIHLP, LLC; and
(b) as to the sum of (pound)[ ], being the share of such reserve
attributable to so much of that share capital as is represented by [ ]
shares of the Assignor held by CFIHLP, by way of transfer, with the
consent of CFIHLP (as its execution of this agreement hereby
acknowledges), of the Business (having a value of (pound)[ ], as
determined by expert valuation conducted by Ernst & Young), to the
Assignee on terms that the Assignee shall issue to CFIHLP, credited as
fully paid, [ ] shares of US$1 each of the Assignee (the "Shares").
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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 federal, state, local
and foreign 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,
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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) 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; and
(h) to the extent transferable, any and all Permits (as hereinafter
defined) used exclusively in connection with the Business,
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");
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(b) all rights of the Assignor in and to the trademarks, 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 name
"xxxxxx.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 site 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(a)
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 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);
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(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 of its portion of the Transferred Assets, 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, (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 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.
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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 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) deliver to the Assignee all documents of title or other records
establishing title to those Transferred Assets;
(v) (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;
(vi) 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
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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;
(vii) 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;
(viii) give possession to the Assignee of, or otherwise make available
to it, in such form as the Assignee may reasonably require, the Trade
Secrets;
(ix) 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;
(x) 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
(xi) execute and deliver to the Assignee 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 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
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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; and
(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.
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
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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 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.
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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.
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
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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 Schedule 3 to this
Agreement (the "Disclosure Schedule"), which Disclosure Schedule specifically
reference the particular sections hereof to which it relates:
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 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
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"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 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
12
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 B 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 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
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 or the Assignor's
affiliates' United States 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.
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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.
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.
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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; 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 date of Closing;
(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
15
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
(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 Section 5 all such liabilities shall be
deemed to arise on or before the Closing Date.
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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 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 Section 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
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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
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
18
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 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:
19
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 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
20
(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
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.
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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.
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
00
Xxx Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: General Counsel
Fax Number: 0000 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 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
23
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.
24
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 o )
for and on behalf of )
CANTOR XXXXXXXXXX )
INTERNATIONAL )
SIGNED by o )
for and on behalf of )
eSPEED SECURITIES )
INTERNATIONAL LIMITED )
SIGNED by o )
for and on behalf of )
CANTOR XXXXXXXXXX )
INTERNATIONAL HOLDINGS L.P. )
25
EXHIBIT A
---------
Form of Joint Services Agreement
EXHIBIT B
---------
Form of Administrative Services Agreement
