1
CORPORATE AGREEMENT
THIS CORPORATE AGREEMENT (the "Agreement") is entered into as of May
____, 2001 by and between REUTERS LIMITED, a company organized under the laws of
England and Wales ("Reuters"), and INSTINET GROUP INCORPORATED, a Delaware
corporation ("Instinet").
RECITALS
WHEREAS, the parties are contemplating the possibility that Instinet
will issue shares of common stock in an initial public offering (the "Initial
Public Offering") registered under the Securities Act.
WHEREAS, the parties desire to enter into this Agreement to set
forth their agreement regarding certain corporate governance matters, certain
registration rights with respect to the Registrable Securities and certain other
matters with respect to the on-going relationship between Instinet and Reuters.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Reuters and Instinet, for
themselves and their successors and assigns, hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1. Definitions. As used in this Agreement, the following terms
will have the following meanings, applicable both to the singular and the plural
forms of the terms described:
"Affiliate" means, with respect to a given Person, any other Person
that, directly or indirectly, controls, is controlled by, or is under common
control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlled by" and "under
common control with"), as applied to any Person, means the possession, directly
or indirectly, of the power to vote forty percent (40%) or more of the
securities having voting power for the election of directors (or other Persons
acting in similar capacities) of such Person or otherwise to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agreement" has the meaning ascribed thereto in the preamble hereto,
as such agreement may be amended and supplemented from time to time in
accordance with its terms.
"Board of Directors" means the board of directors of Instinet.
"Business Day" means any day other than a Saturday, Sunday or any
day on which banking institutions are authorized or obligated by law or
executive order to be closed in London or New York.
2
2
"Cash Equivalents" means (i) United States dollars, Japanese Yen,
Euros and British Pounds Sterling (and foreign currency exchangeable into such
currencies within 30 days), (ii) securities issued or directly and fully
guaranteed or insured by the United States government or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than
thirty-six months from the date of acquisition, (iii) certificates of deposit
and eurodollar time deposits with maturities of twelve months or less from the
date of acquisition, bankers' acceptances with maturities not exceeding twelve
months and overnight bank deposits, in each case with any domestic commercial
bank having a long term credit rating of A3 or higher from Xxxxx'x Investors
Service, Inc. or A- or higher from Standard & Poor's Corporation, (iv)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (ii) and (iii) above entered into
with any financial institution meeting the qualifications specified in clause
(iii) above and (v) commercial paper or similar short term securities having one
of the two highest ratings obtainable from Xxxxx'x Investors Service, Inc. or
Standard & Poor's Corporation and in each case maturing within twelve months
after the date of acquisition.
"Common Stock" means the common stock, par value $0.01 per share, of
Instinet, and any other class of Instinet's capital stock representing the right
to vote generally for the election of directors.
"Covered Transaction" has the meaning ascribed thereto in Section
2.1.
"Delaware 203" means Section 203 of the Delaware General Corporation
Law, as in effect from time to time.
"Exchange Act" has the meaning ascribed thereto in Section 3.10.
"Holder" means the Reuters Entities and any Transferee.
"Holder Securities" has the meaning ascribed thereto in Section
3.2(c)
"Holders' Representative" means Reuters or any other Holder
designated by Reuters as a Holders' Representative.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended, and the rules and regulations promulgated thereunder.
"Indebtedness" means, with respect to any Person, any indebtedness
of such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or bankers' acceptances
or representing capital lease obligations or the balance deferred and unpaid of
the purchase price of any property, except any such balance that constitutes an
accrued expense or trade payable, if and to the extent any of the foregoing
(other than letters of credit and hedging obligations) would appear as a
liability upon a balance sheet of such Person prepared in accordance with US
GAAP, as well as all Indebtedness of others secured by a lien on any asset of
such Person (whether or not such Indebtedness is assumed by such Person) and, to
the extent not otherwise included, the guarantee by such Person of any
indebtedness of any other Person. The amount of any Indebtedness outstanding as
of any date shall be (i) the accreted value
3
3
thereof, in the case of any Indebtedness issued with original issue discount,
and (ii) the principal amount thereof, together with any interest thereon that
is more than 30 days past due, in the case of any other Indebtedness.
"Initial Public Offering" has the meaning ascribed thereto in the
recitals hereto.
"Initial Public Offering Date" means the date of completion of the
initial sale of Common Stock in the Initial Public Offering.
"Instinet" has the meaning ascribed thereto in the preamble hereto.
"Instinet Entities" means Instinet Parent, Instinet and their
respective Subsidiaries from time to time, and "Instinet Entity" shall mean any
of the Instinet Entities; provided, however, in each case, that any such
Instinet Entity shall cease to be an "Instinet Entity" under this Agreement at
such time as such Person no longer is a Subsidiary of Instinet Parent or
Instinet, as the case may be.
"Instinet Parent" means any Person who succeeds Instinet as the
parent corporation of the Instinet Entities as a result of a corporate
reorganization, merger or otherwise.
"Instinet Securities" has the meaning ascribed thereto in Section
3.2(c).
"Instinet Transferee" shall mean any transferee or purchaser
(together with its Affiliates) from an Instinet Entity of greater than 5% of the
Total Voting Power of Instinet other than pursuant to an underwritten offering;
provided such Person holds more than 5% of the Total Voting Power of Instinet at
the time of the registration or offering in question.
"Lower Threshold" has the meaning ascribed thereto in Section
2.3(a).
"Market Capitalization" means the product of (A) the number of
shares of Common Stock outstanding on the date 30 days prior to the date the
Board of Directors authorizes the relevant Covered Transaction (or, if no such
approval is given or the relevant Instinet Entity(ies) enter into a definitive
agreement with respect to such Covered Transaction more than 60 days after such
approval, then on the date such agreement is entered into) (the "Measurement
Date"), multiplied by (B) (i) the average of the last sale price of such shares
of Common Stock on each of the thirty (30) trading days immediately preceding
the Measurement Date on The Nasdaq National Market or, if such shares are not
listed thereon, on the principal national securities exchange or automated
interdealer quotation system on which such shares are traded or (ii) if such
sale prices are unavailable or such shares are not so traded, the value of such
shares on the Measurement Date determined in accordance with agreed-upon
procedures reasonably satisfactory to each of Instinet and Reuters.
"Material Agreement" means any written agreement, term sheet or
document, binding or not, that relates to a Covered Transaction and sets forth
or otherwise describes any of the contemplated or proposed material terms
thereof.
"Net Indebtedness" means the consolidated Indebtedness of the
Instinet Entities, excluding (i) the Note dated _______________, 2001 in the
amount of US$49.0 million between
4
4
Instinet Corporation and Fleet Street Finance Inc. and (ii) any Indebtedness
incurred in the ordinary course of their brokerage or other similar businesses
in connection with the clearing of traded securities or obligations to
securities exchanges or clearing systems, and less consolidated cash and Cash
Equivalents.
"Nominee Threshold" has the meaning ascribed thereto in Section
2.3(a).
"Other Holders" has the meaning ascribed thereto in Section 3.2(d).
"Other Securities" has the meaning ascribed thereto in Section
3.2(a).
"Ownership Reduction" shall be deemed to have occurred when no
Holder, together with its Affiliates, beneficially owns 20% or more of the Total
Voting Power of Instinet.
"Permitted Acquisition" means an acquisition or series of related
acquisitions by any Instinet Entity(ies), whether by merger, stock purchase,
asset purchase or otherwise, of any business, Person or assets where the
aggregate consideration to be paid by the Instinet Entity(ies) in such
acquisition or related series of acquisitions does not exceed the lesser of (i)
20% of the Market Capitalization of Instinet or (ii) 20% of the total
consolidated revenues (calculated in accordance with US GAAP, and excluding any
extraordinary non-recurring items) of the Instinet Entities for the last four
completed fiscal quarters.
"Person" means any individual, partnership, limited liability
company, joint venture, corporation, trust, unincorporated organization,
government (and any department or agency thereof) or other entity.
"Ratio" has the meaning ascribed thereto in Section 2.3(b).
"Registrable Securities" means shares of Common Stock and any stock
or other securities into which or for which such Common Stock may hereafter be
changed, converted or exchanged and any other shares or securities issued to
Holders of such Common Stock (or such shares or other securities into which or
for which such shares are so changed, converted or exchanged) upon any
reclassification, share combination, share subdivision, share dividend, share
exchange, merger, consolidation or similar transaction or event. As to any
particular Registrable Securities, such Registrable Securities shall cease to be
Registrable Securities when (i) a registration statement with respect to the
sale by the Holder thereof shall have been declared effective under the
Securities Act and such securities shall have been disposed of in accordance
with such registration statement, (ii) they shall have been distributed to the
public in accordance with Rule 144, (iii) they shall have been otherwise
transferred, new certificates for them not bearing a legend restricting further
transfer shall have been delivered by Instinet and subsequent disposition of
them shall not require registration or qualification of them under the
Securities Act or any state securities or blue sky law then in effect or (iv)
they shall have ceased to be outstanding.
"Registration Expenses" means any and all expenses incident to
performance of or compliance with any registration of securities pursuant to
Article III, including, without limitation, (i) the fees, disbursements and
expenses of Instinet's counsel and accountants; (ii) all expenses, including
filing fees, in connection with the preparation, printing and filing of the
5
5
registration statement, any preliminary prospectus or final prospectus, any
other offering document and amendments and supplements thereto and the mailing
and delivering of copies thereof to any underwriters and dealers; (iii) the cost
of printing or producing any underwriting agreements and blue sky or legal
investment memoranda and any other documents in connection with the offering,
sale or delivery of the securities to be disposed of; (iv) all expenses in
connection with the qualification of the securities to be disposed of for
offering and sale under state securities laws, including the fees and
disbursements of counsel for the underwriters or the Holders of securities in
connection with such qualification and in connection with any blue sky and legal
investment surveys; (v) the filing fees incident to securing any required review
by the National Association of Securities Dealers, Inc. of the terms of the sale
of the securities to be disposed of; (vi) transfer agents' and registrars' fees
and expenses and the fees and expenses of any other agent or trustee appointed
in connection with such offering; (vii) all security engraving and security
printing expenses; (viii) all fees and expenses payable in connection with the
listing of the securities on any securities exchange or automated interdealer
quotation system or the rating of such securities; (ix) all expenses with
respect to road shows that the Company is obligated to pay pursuant to Section
3.5(j); and (x) any other fees and disbursements of underwriters customarily
paid by the sellers of securities, but excluding underwriting discounts and
commissions and transfer taxes, if any (which underwriting discounts and
commissions and transfer taxes shall be borne by each selling stockholder
participating in a particular offering and, if selling securities in such
offering, Instinet, pro rata in accordance with the total amount of securities
sold in such offering by each such Person in accordance with Section 3.4).
"Reuters" has the meaning ascribed thereto in the preamble hereto.
"Reuters Audit Committee" means the audit committee of the Reuters
Parent Board of Directors.
"Reuters Director" shall mean (i) any director designated by Reuters
in accordance with the provisions of Section 2.3 and (ii) any director of
Instinet who at such time as Reuters Entities cease to beneficially more than
50% of the Total Voting Power of Instinet is a director or officer of Reuters.
"Reuters Entities" means the Reuters Parent and Subsidiaries of the
Reuters Parent (other than Subsidiaries that constitute Instinet Entities) from
time to time, and "Reuters Entity" shall mean any of the Reuters Entities;
provided, however, in each case, that any Reuters Entity shall cease to be a
"Reuters Entity" under this Agreement at such time as such Person no longer is a
Subsidiary of the Reuters Parent.
"Reuters Parent" means the ultimate parent entity from time to time,
of Reuters, which is currently Reuters Group PLC.
"Reuters Trust Principles" has the meaning used in the Memorandum of
Association of Reuters Founders Share Company Limited, a company organized under
the laws of England and Wales.
"Rule 144" means Rule 144 (or any successor rule to similar effect)
promulgated under the Securities Act.
6
6
"Rule 415 Offering" means an offering on a delayed or continuous
basis pursuant to Rule 415 (or any successor rule to similar effect) promulgated
under the Securities Act.
"SEC" means the United States Securities and Exchange Commission.
"Section 3.2 Notice" shall have the meaning ascribed thereto in
Section 3.2(a).
"Securities Act" means the Securities Act of 1933, as amended, or
any successor statute.
"Selling Holder" has the meaning ascribed thereto in Section 3.5(e).
"Shelf Registration Statement" has the meaning ascribed thereto in
Section 3.3(a).
"Subsidiary" means, as to any Person, any corporation, association,
partnership, joint venture or other business entity of which more than 50% of
the voting power of capital stock or other voting ownership interests entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is owned or controlled, directly or
indirectly, by such Person or by one or more of the Subsidiaries of such Person
or by a combination thereof. "Subsidiary," when used with respect to Reuters or
Instinet, shall also include any other entity affiliated with Reuters or
Instinet, as the case may be, that Reuters and Instinet may hereafter agree in
writing shall be treated as a "Subsidiary" of such Person for the purposes of
this Agreement.
"3 Times Square Arrangements" shall mean (i) that certain Agreement
of Lease, dated February 18, 1998, between 3 Times Square Associates, LLC ("3
Times Square Associates"), as landlord, and Reuters C ("Reuters C"), as tenant,
as amended by First Amendment of Lease, dated as of June 30, 1998, Second
Amendment of Lease, dated as of July 1, 1998, Third Amendment of Lease, dated as
of March 31, 2000, and Fourth Amendment of Lease, dated as of November 28, 2000,
as the same may hereafter from time to time be amended, modified, extended,
renewed or supplemented; (ii) that certain Sublease, dated as of May __, 2001,
between Reuters C, as sublessor and Instinet Global Holdings, Inc. ("Instinet
Global Holdings"), as sublessee; (iii) the documentation executed in connection
with the transaction entered into by Reuters America Inc. ("Reuters America")
with the New York City Industrial Development Agency ("XXX") relating to 3 Times
Square, including, without limitation, that certain Project Agreement, dated as
of April 1, 1998, between the XXX, Reuters America and Reuters America Holdings,
Inc., as guarantor; (iv) that certain Benefits Allocation Agreement, dated as of
May __, 2001, between Reuters America and Instinet Global Holdings; and (v) all
other agreements and contracts pertaining to the development, operation,
management and construction of 3 Times Square to which any Reuters Entity is a
party, including without limitation, that certain Site 3 Leasehold Purchase and
Sale Agreement by and between Three Times Square Center Partners, L.P. , as
seller and 3 Times Square Associates, as buyer.
"Total Voting Power of Instinet" shall mean the total number of
votes which may be cast in the election of members of the Board of Directors by
all holders of Common Stock.
"Transferee" shall mean any of (i) the transferee of all or any
portion of the Common Stock or other Registrable Securities held by any Reuters
Entity or (ii) the subsequent
7
7
transferee of all or any portion of the Common Stock or other Registrable
Securities held by any Transferee; provided that no Transferee shall be entitled
to any benefits of a Transferee hereunder unless such Transferee executes an
instrument substantially in the form provided as Exhibit A, attached hereto.
"UK GAAP" means generally accepted accounting principles in the
United Kingdom as have been approved by a significant segment of the U.K.
accounting profession from time to time and as applied by Reuters in its public
financial statements.
"US GAAP" means generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entities as have been approved by a significant segment
of the accounting profession, which are in effect from time to time, and with
respect to Instinet, consistent with Instinet's public financial statements
filed with the SEC.
1.2. Internal References. Unless the context indicates otherwise,
references to Articles, Sections and paragraphs shall refer to the corresponding
articles, sections and paragraphs in this Agreement and references to the
parties shall mean the parties to this Agreement.
ARTICLE II
CERTAIN GOVERNANCE MATTERS
2.1. Definition of Covered Transaction. For purposes of this
Agreement, a "Covered Transaction" shall mean any of the following actions:
(a) The issuance of equity securities or securities convertible
into, exchangeable for, or options or rights to acquire any equity securities
(except for securities issued pursuant to any of Instinet's employee stock
option or employee benefits plans or in a Permitted Acquisition) in excess of
(i), in any one-year period (commencing on the date after the Reuters Entities
beneficially own 50% or less of the Total Voting Power of Instinet), 10% of the
capital stock of Instinet or Total Voting Power of Instinet outstanding on the
last day of the calendar month immediately prior to such one-year period, or
(ii), in any three-year period (commencing on the date after the Reuters
Entities beneficially own 50% or less of the Total Voting Power of Instinet),
20% of the capital stock of Instinet or Total Voting Power of Instinet
outstanding on the last day of the calendar month immediately prior to such
three-year period; provided, that in calculating any such amounts of capital
stock of Instinet, or Total Voting Power of Instinet above, such calculation
shall also include shares issued pursuant to any of Instinet's employee stock
option, restricted stock award or employee benefit plans during the relevant
period on a weighted average basis;
(b) Any acquisition by any Instinet Entity whether by merger, stock
acquisition, asset purchase or otherwise of any business, Person or assets by
any Instinet Entity other than a Permitted Acquisition; or
(c) A sale or other disposition or series of related sales or
dispositions by any Instinet Entity(ies), whether by merger, stock disposition,
asset sale or otherwise, of any
8
8
business, Person or assets where the aggregate consideration to be received by
the Instinet Entity(ies) in such sale or disposition or related series of sales
or dispositions exceeds the lesser of (i) 20% of the Market Capitalization of
Instinet or (ii) 20% of the total consolidated revenues (calculated in
accordance with US GAAP and excluding any extraordinary non-recurring items) of
the Instinet Entities for the last four completed fiscal quarters.
2.2. Corporate Action Regarding Covered Transactions. (a) So long as
Reuters Entities beneficially own no less than 35% and no more than 50% of the
Total Voting Power of Instinet, Instinet agrees, and agrees to cause each
Instinet Entity, not to execute any Material Agreement or complete a Covered
Transaction, unless such Covered Transaction has been first submitted to Reuters
for its approval and Reuters has approved such Covered Transaction in writing in
accordance with the provisions of Section 2.2 (b) below.
(b) Any request for Reuters' approval of a Covered Transaction shall
be submitted in writing to Reuters by notice which shall (i) describe the
Covered Transaction in reasonable detail, and include reasonably sufficient
information (including such information as is given or will be given to the
Board of Directors), for Reuters to make a determination pursuant to this
Section 2.2 and (ii) indicate that such notice is a formal request for Reuters
approval pursuant to this Section 2.2(b) and state the last date by which
Reuters may respond to such request in accordance with the provisions of this
Section 2.2(b). Instinet shall promptly provide Reuters with all information
requested by Reuters which is in the possession of, or reasonably obtainable by,
Instinet and relates to the Covered Transaction. Reuters shall in good faith use
its commercially reasonable efforts to respond to such request as expeditiously
as possible, but shall in no event respond later than ten Business Days after
receipt of such notice (or such later date as Instinet and Reuters shall agree).
Such request for Reuters' approval will be deemed approved by Reuters unless
Reuters refuses such approval (in its sole discretion) in writing within such
ten Business Day period.
2.3. Seats on Board of Directors. (a) So long as Reuters Entities
beneficially own shares of Instinet's stock having at least 10% (the "Nominee
Threshold") but less than 50% of the Total Voting Power of Instinet, in
connection with any election of directors of Instinet Reuters shall have the
right to designate and Instinet shall cause the nomination of such number of
directors of Instinet such that after such election (assuming all such Reuters
designees are elected to the Board of Directors), the number of Reuters
Directors will be equal to the product of (1) the Total Voting Power of Instinet
beneficially owned by the Reuters Entities multiplied by (2) the total number of
members on the Board of Directors, rounded to the nearest whole number; provided
that in no event shall the number of Reuters Directors nominated pursuant to
this provision constitute (i) 50% or more of the members of the Board of
Directors or (ii) less than one member of the Board of Directors.
Notwithstanding the foregoing, if Instinet grants any other Person at any time
or from time to time the right to nominate a director or directors based on a
lesser percentage of the Total Voting Power of Instinet (the "Lower Threshold")
than the Nominee Threshold, Reuters shall have the right to designate an equal
number of members of the Board of Directors as such other Person so long as it
beneficially owns an amount of capital stock greater than or equal to the Lower
Threshold. If a vacancy occurs or exists on the Board of Directors at any time,
including but not limited to a vacancy because of the death, disability,
retirement, resignation or removal of any director for cause or otherwise, and
the vacant position was held by a Reuters Director, then Reuters shall have the
sole right to designate an individual
9
9
to fill such vacancy, and, subject to the fiduciary duties of directors, the
Board of Directors shall elect such nominee to fill such vacancy. To the extent
permitted by law, Instinet shall use its commercially reasonable efforts to
solicit from the stockholders of Instinet eligible to vote for the election of
directors proxies in favor of the nominees designated by the Board of Directors
in accordance with this Section 2.3(a).
(b) If at any time the total number of directors of Instinet is
increased or decreased, the number of directors that Reuters shall have the
right to designate pursuant to Section 2.3(a) above, shall as promptly as
practicable be increased or decreased so that the adjusted ratio of Reuters
Directors to total directors is not less than the ratio of Reuters Directors
(determined immediately prior to such increase in accordance with the provisions
of Section 2.3(a)) to the total number of directors of Instinet immediately
prior to such increase or decrease, as the case may be (the "Ratio"). In such
event, Reuters and Instinet shall take such steps consistent with the provisions
of Section 2.3(a) to effectuate this increase or decrease of Reuters Directors
in relation to the Ratio as rapidly as reasonably possible.
(c) At the request of Reuters, Instinet shall (x) use its best
efforts to cause a special meeting of stockholders to be held proposing the
removal of any Reuters Director provided, that if in the reasonable good faith
determination by the Board of Directors it is materially detrimental to do so,
then Instinet may delay calling such special meeting; provided that Instinet
will cause such meeting to be held within 135 days of such request by Reuters
and (y) use its best efforts to solicit from stockholders of Instinet eligible
to vote for the election of directors proxies to remove such specified Reuters
Directors.
(d) For so long as the Reuters Entities beneficially own shares of
Instinet's stock having at least 25% of the Total Voting Power of Instinet,
subject to the fiduciary duties of the directors, Reuters Directors shall be
nominated to serve on each committee of the Board of Directors (other than any
committee required by law or stock exchange requirement to consist solely of
independent directors but only to the extent a sufficient number of Reuters
Directors do not qualify as independent directors; provided that such lesser
number of Reuters Directors that do qualify as independent directors shall be
appointed to such committee) so that after such appointment(s), the ratio of
Reuters Directors who are members of such committee to the total number of
members of such committee is not less than the Ratio. Notwithstanding the
foregoing, if Instinet grants any other Person at any time or from time to time
the right to nominate a director or directors to serve on any committee(s) of
the Board of Directors at a percentage less than 25% of the Total Voting Power
of Instinet (the "Lower Percentage"), Reuters shall have the right to appoint an
equal number of Reuter Directors to serve on such committee(s) as such other
Person so long as the Reuters Entities beneficially own an amount of Instinet
stock having at least the same amount of the Total Voting Power of Instinet as
the Lower Percentage. For so long as (i) Reuters beneficially owns shares of
Instinet's stock having at least 10% but less than the Lower Percentage of the
Total Voting Power of Instinet and (ii) there is at least one Reuters Director,
any such Reuters Director shall be permitted to observe the proceedings of (but
shall not be a member of) any committee of the Board of Directors.
Notwithstanding the foregoing, if Instinet grants any other Person at any time
or from time to time the right to appoint a director or directors to observe the
proceedings of any committee(s) of the Board of Directors at a percentage less
than 10% of the Total Voting Power of Instinet, Reuters shall have the right to
appoint an equal number of Reuters Directors to observe such
10
10
proceedings as such other Person so long as the Reuters Entities beneficially
own an amount of Instinet stock having at least the same amount of the Total
Voting Power of Instinet as such lesser percentage.
2.4. Dilution. For so long as the Reuters Entities beneficially own
more than 51% of the Total Voting Power of Instinet, Instinet shall not take any
action without Reuters prior consent which directly or indirectly causes or
could cause the Reuters Entities to own less than 51% of the Total Voting Power
of Instinet or less than 51% of Instinet's capital stock unless Reuters
concludes in writing, in its reasonable judgment following discussions with
Instinet and the lessor, that such action would not result in a material adverse
consequence to the Reuters Entities under the 3 Times Square Arrangements.
2.5. Acknowledgment of Reuters Trust Principles. Instinet
acknowledges that so long as Reuters Entities beneficially own more than 50% of
the Total Voting Power of Instinet, Instinet will, and will cause each of the
other Instinet Entities to, adhere to the Reuters Trust Principles.
2.6. Transfer of Instinet (Schweiz) AG. Notwithstanding any other
provision contained herein, Instinet shall not transfer or dispose of any
interests in Instinet (Schweiz) AG, or take any other action which under Swiss
law or otherwise would require notification or action, until Reuters has
received written notification of such intention and subsequently confirms that
all necessary or required action has been taken by Instinet. Instinet hereby
agrees to indemnify and hold Reuters harmless from and against any and all
losses, liabilities, costs (including reasonable attorneys' fees and
disbursements) claims and damages arising out of, based upon or relating to a
breach of its obligations in the immediately preceding sentence.
ARTICLE III
REGISTRATION RIGHTS
3.1. Demand Registration - Registrable Securities. (a) Upon written
notice provided at any time after the Initial Public Offering Date from any
Holders' Representative requesting that Instinet effect the registration under
the Securities Act of any or all of the Registrable Securities held by the
Holders, which notice shall specify the number of such Registrable Securities to
be registered and the intended method or methods of disposition of such
Registrable Securities, Instinet shall use its commercially reasonable efforts
to effect the registration under the Securities Act and applicable state
securities laws of such Registrable Securities for disposition in accordance
with the intended method or methods of disposition stated in such request;
provided that:
(i) with respect to any registration statement filed, or to be
filed, pursuant to this Section 3.1, (A) if Instinet determines in the
good faith judgment of the Board of Directors, such registration would
cause Instinet to disclose material non-public information which
disclosure would be materially detrimental to Instinet or would materially
interfere with any material financing, acquisition, corporate
reorganization or merger or other transaction involving Instinet and any
of its Subsidiaries and the Board of Directors concludes, as a result of
such potential disclosure or interference, that it is in the best
interests of Instinet to defer the filing of such registration statement
at such time,
11
11
and (B) Instinet shall furnish to such Holders' Representative a
certificate signed by the chief executive officer of Instinet stating that
in the good faith judgment of the Board of Directors it would be
materially detrimental to Instinet for such registration statement to be
filed in the near future and that it is, therefore, in the best interests
of Instinet to defer the filing of such registration statement, then
Instinet shall have the right to defer such filing, provided that such
deferral, together with any other deferral or suspension of its
obligations under Section 3.1 or Section 3.3, shall not be effected more
than twice in any twelve-month period or for a period of more than one
hundred and twenty (120) days, in the aggregate, for all such deferrals or
suspensions over such twelve-month period;
(ii) after an Ownership Reduction, the Holders of Registrable
Securities may collectively exercise their rights under this Section 3.1
through a Holders' Representative on not more than three occasions (it
being acknowledged that prior to any Ownership Reduction, there shall be
no limit to the number of occasions on which such Holders may exercise
such rights; provided, that each Transferee of 10% or less of the Total
Voting Power of Instinet shall be entitled to only one demand right
hereunder through a Holders' Representative);
(iii) except as otherwise provided herein, the Holders of
Registrable Securities shall not have the right to exercise registration
rights pursuant to this Section 3.1 within the 90-day period following the
registration and sale of Registrable Securities effected pursuant to a
prior exercise of the registration rights provided in this Section 3.1;
(iv) Instinet will not be required to take any action pursuant to
this Section 3.1 if the Registrable Securities are registered at the time
of such demand under an effective Shelf Registration Statement; and
(v) the estimated market value of the Registrable Securities to be
registered pursuant to this Section 3.1, together with any Registrable
Securities to be registered pursuant to Section 3.2, at the time such
demand is made is at least $60 million.
(b) Notwithstanding any other provision of this Agreement, a
registration requested by a Holders' Representative of Registrable Securities
pursuant to this Section 3.1 shall not be deemed to have been effected (and,
therefore, not requested for purposes of paragraph (a) above), (i) unless it has
become effective, (ii) if after it has become effective such registration is
interfered with by any stop order, injunction or other order or requirement of
the SEC or other governmental agency or court for any reason other than a
misrepresentation or an omission by such Holder and, as a result thereof, the
Registrable Securities requested to be registered cannot be completely
distributed in accordance with the plan of distribution set forth in the related
registration statement or (iii) if the conditions to closing specified in the
purchase agreement or underwriting agreement entered into in connection with
such registration are not satisfied or waived other than by reason of some act
or omission by such Holder of Registrable Securities.
(c) In the event that any registration pursuant to this Section 3.1
shall involve, in whole or in part, an underwritten offering, the Holders of a
majority of the Registrable Securities to be registered shall have the right to
designate an underwriter or underwriters in accordance
12
12
with the provisions of the following two sentences. No later than ten Business
Days following its receipt of notice by the Holders' Representative pursuant to
Section 3.1(a), Instinet shall deliver to the Holders' Representative in writing
a list (the "List") of at least five internationally recognized investment
banking firms ranked in the top ten in the past year for equity underwritings by
Thomson Financial Securities Data (or such similar ranking service if such
ranking service ceases to exist other than by reason of merger, reorganization
or consolidation or other acquisition). A majority of the Registrable Securities
to be registered shall select from the List an underwriter or underwriters (the
"Holders' Underwriters") and notify Instinet in writing of its selection of the
Holders' Underwriters no later than ten Business Days following receipt by it of
the List.
(d) Instinet shall have the right to cause the registration of
additional equity securities for sale for the account of any Instinet Entity,
any existing or former directors, officers or employees of the Instinet Entities
or any other stockholder of Instinet who is contractually entitled to include
its shares in such registration in any registration of Registrable Securities
requested by the Holders' Representative pursuant to paragraph (a) above;
provided, however, that if such Holders are advised in writing (with a copy to
Instinet) by the lead Holders' Underwriters that, in such firm's good faith
view, all or a part of such Registrable Securities cannot be sold and the
inclusion of all or a part of such additional equity securities in such
registration would be likely to have an adverse effect on the price, timing or
distribution of the offering and sale of the Registrable Securities then
contemplated by any Holder, the registration of such additional equity
securities or part thereof shall not be permitted but only to the extent such
additional equity securities would be likely to have such adverse effect. The
Holders of the Registrable Securities to be offered may require that any such
additional equity securities be included in the offering proposed by such
Holders on the same conditions as the Registrable Securities that are included
therein. In the event that the number of Registrable Securities requested to be
included in a registration statement by the Holders thereof exceeds the number
which, in the good faith view of such investment banking firm, can be sold
without adversely affecting the price, timing, distribution or sale of
securities in the offering, the number shall be allocated pro rata among the
requesting Holders on the basis of the relative number of Registrable Securities
then held by each such Holder (provided that any number in excess of a Holder's
request may be reallocated among the remaining requesting Holders in a like
manner).
3.2. Piggyback Registration (a) In the event that Instinet at any
time after the Initial Public Offering Date proposes or is required to register
any of its Common Stock (including pursuant to Sections 3.1 or 3.3 hereof), any
other of its equity securities or securities convertible into or exchangeable
for its equity securities (collectively, the "Other Securities") under the
Securities Act, whether or not for sale for its own account, in a manner that
would permit registration of Registrable Securities for sale for cash to the
public under the Securities Act, it shall at each such time give prompt written
notice (the "Section 3.2 Notice") to each Holder of Registrable Securities of
its intention to do so and of the rights of such Holder under this Section 3.2.
Subject to the terms and conditions hereof, such Section 3.2 Notice shall offer
each such Holder the opportunity to include in such registration statement such
number of Registrable Securities as such Holder may request. Upon the written
request of any such Holder made within 15 business days after the receipt of the
Section 3.2 Notice (which request shall specify the number of Registrable
Securities intended to be disposed of), Instinet shall use its best efforts to
effect, in connection with the registration of the Other Securities, the
registration
13
13
under the Securities Act of all Registrable Securities which Instinet has been
so requested to register, to the extent required to permit the disposition (in
accordance with such intended method of disposition thereof) of the Registrable
Securities so requested to be registered; provided, that:
(b) if, at any time after giving such Section 3.2 Notice of its
intention to register any Other Securities and prior to the effective date of
the registration statement filed in connection with such registration, Instinet
shall determine for any reason not to register the Other Securities, Instinet
may, at its election (subject to any other obligations it may have in connection
therewith), give written notice of such determination to such Holders and
thereupon Instinet shall be relieved of its obligation to register such
Registrable Securities in connection with the registration of such Other
Securities, without prejudice, however, to the rights of a Holder of Registrable
Securities immediately to request that such registration be effected as a
registration under Section 3.1 or Section 3.3 to the extent permitted
thereunder;
(c) if the registration referred to in the first sentence of this
Section 3.2 is to be an underwritten registration on behalf of Instinet, and the
lead underwriter or managing underwriter advises Instinet in writing that, in
such firm's good faith view, all or a part of such Other Securities and
Registrable Securities cannot be sold and the inclusion of all or a part of such
Other Securities and Registrable Securities in such registration would be likely
to have an adverse effect upon the price, timing or distribution of the offering
and sale of the Other Securities and Registrable Securities then contemplated,
Instinet shall include in such registration: (i) first, all Other Securities
Instinet proposes to sell for its own account ("Instinet Securities"), (ii)
second, all (A) Other Securities proposed to be sold on behalf of any
stockholder of Instinet who beneficially owns a greater number of shares of
Common Stock than the Reuters Entities beneficially own and (B) Registrable
Securities held by Holders that are requested to be included in such
registration (Registrable Securities that are so held being sometimes referred
to herein as "Holder Securities") in excess of the number of Other Securities to
be sold in such offering pursuant to clause (i) above which, in the good faith
view of such investment banking firm, can be sold without adversely affecting
such offering (and (x) if such number is less than the full number of such Other
Securities and Holder Securities, such number shall be allocated pro rata among
holders of such Other Securities (other than Instinet Securities) and Holders of
Registrable Securities on the basis of the number of securities requested to be
included therein by each such holder) and (y) in the event that such investment
banking firm advises that less than all of such Holder Securities may be
included in such offering, such Holders may withdraw their request for
registration of their Registrable Securities under this Section 3.2 and 90 days
subsequent to the effective date of the registration statement for the
registration of such Other Securities and/or remaining Holder Securities request
that such registration be effected as a registration under Section 3.1 or
Section 3.3 to the extent permitted thereunder); and (iii) third, up to the full
number of the Other Securities (other than those registered pursuant to clauses
(i) and (ii) above), if any, in excess of the number of Other Securities and
Registrable Securities to be sold in such offering pursuant to clauses (i) and
(ii) above which, in the good faith view of such investment banking firm, can be
so sold without so adversely affecting such offering;
(d) if the registration referred to in the first sentence of this
Section 3.2 is to be an underwritten secondary registration on behalf of holders
(other than Instinet) of Other Securities
14
14
(the "Other Holders"), and the lead underwriter or managing underwriter advises
Instinet in writing that in their good faith view, all or a part of such
additional securities cannot be sold and the inclusion of such additional
securities in such registration would be likely to have an adverse effect on the
price, timing or distribution of the offering and sale of the Other Securities
and Registrable Securities then contemplated, Instinet shall include in such
registration (i) first, (A) Other Securities sought to be included therein by
the Other Holders pursuant to the exercise of their demand registration rights,
and (B) the number of Holder Securities sought to be included in such
registration (and if such number is less than the full number of such Other
Securities and Holder Securities, such number shall be allocated 66.67% among
the holders of such Other Securities and 33.33% among the Holders of such Holder
Securities (provided that (x) if such number of securities allocated to the
Holders is less than the full number of Registrable Securities requested to be
included, such number shall be allocated pro rata among Holders of Registrable
Securities on the basis of the number of Registrable Securities then held by
each such Holder (unless other agreed by the Holders) and (y) any number of
securities in excess of the request of the holders of Other Securities pursuant
to clause (A) above shall be reallocated among the requesting Holders in a like
manner); provided that in the event that less than all of such Holder Securities
may be included in such offering, any Holder may withdraw its request for
registration of its Registrable Securities under this Section 3.2 and 90 days
subsequent to the effective date of the registration statement for the
registration of such Other Securities and/or remaining Holder Securities request
that such registration be effected as a registration under Section 3.1 or
Section 3.3 to the extent permitted thereunder, and (ii) second, up to the full
number of the Other Securities (other than Other Securities registered pursuant
to clause (i)), if any, in excess of the number of Other Securities and
Registrable Securities to be sold in such offering pursuant to clause (i) above
which, in the good faith view of such investment banking firm, can be sold
without so adversely affecting such offering;
(e) Instinet shall not be required to effect any registration of
Registrable Securities under this Section 3.2 incidental to the registration of
any of its securities on Forms S-4 or S-8 (or any similar or successor form
thereto in connection with mergers, acquisitions, exchange offers, subscription
offers, dividend reinvestment plans or stock option or other executive or
employee benefit or compensation plans) (or any other form that would not be
available for registration of Registrable Securities); and
(f) no registration of Registrable Securities effected under this
Section 3.2 shall relieve Instinet of its obligation to effect a registration of
Registrable Securities pursuant to Section 3.1 or Section 3.3 (except as
otherwise provided in Section 3.1 or Section 3.3).
3.3. Form S-3/Shelf Registration. (a) Instinet shall use all
reasonable efforts to qualify for registration on Form S-3 or any comparable or
successor form or forms. After Instinet has qualified for the use of Form S-3,
in addition to the rights contained in the foregoing provisions of this Article
III, the Holders of Registrable Securities, shall have the right at any time,
and from time to time, to request that Instinet prepare and file with the SEC a
"shelf" registration statement (the "Shelf Registration Statement") on the
appropriate form for an offering to be made on a continuous or delayed basis
pursuant to Rule 415 under the Securities Act (or any successor rule or similar
provision then in effect) covering all or part of the Registrable Securities.
Instinet shall use all reasonable efforts to have the Shelf Registration
Statement declared effective by the SEC as soon as practicable after such
request is made and to
15
15
keep such Shelf Registration Statement continuously effective and free of
material misstatements or omissions (including the preparation and filing of any
amendments and supplements necessary for that purpose) until the earlier of (i)
the date on which all Holders have consummated the sale of all of such Holders'
Registrable Securities registered under the Shelf Registration Statement or (ii)
two years from the date the Shelf Registration Statement first became effective.
Notwithstanding any other provision contained herein, there shall be no
limitation on the number of registrations on Form S-3 that may be requested and
obtained by Holders pursuant to this Section 3.3.
(b) With respect to any Shelf Registration Statement filed, or to be
filed, pursuant to this Section 3.3, (i) if Instinet determines in the good
faith judgment of the Board of Directors, such registration would cause Instinet
to disclose material non-public information which disclosure would be materially
detrimental to Instinet or would materially interfere with any material
financing, acquisition, corporate reorganization or merger or other transaction
involving Instinet and any of its Subsidiaries and the Board of Directors
concludes, as a result of such potential disclosure or interference, that it is
in the best interests of Instinet to defer the filing of such Shelf Registration
Statement at such time, and (ii) Instinet shall furnish to such Holders'
Representative a certificate signed by the chief executive officer of Instinet
stating that in the good faith judgment of the Board of Directors, it would be
materially detrimental to Instinet for such Shelf Registration Statement to be
filed in the near future and that it is, therefore, in the best interests of
Instinet to defer the filing of such Shelf Registration Statement, then Instinet
shall have the right to defer such filing, provided that such deferral, together
with any other deferral or suspension of its obligations under Section 3.1 or
Section 3.3, shall not be effected more than twice in any twelve-month period or
for a period of more than one hundred and twenty (120) days, in the aggregate,
for all such deferrals or suspensions over such twelve-month period.
(c) Instinet agrees, if necessary, to supplement or amend the Shelf
Registration Statement, as required by the rules, regulations or instructions
applicable to the registration form used by Instinet for such Shelf Registration
Statement or by the Securities Act or as otherwise required by this Agreement,
and shall use its all reasonable efforts to have such supplements and amendments
declared effective, if required, as soon as practicable after filing.
(d) A registration will not be deemed to have been effected pursuant
to a Shelf Registration Statement unless the Shelf Registration Statement with
respect thereto has been declared effective by the SEC and Instinet has complied
in all material respects with its obligations under this Agreement with respect
thereto; provided, however, that if after the Shelf Registration Statement has
been declared effective, the offering of Registrable Securities pursuant to such
Shelf Registration Statement is interfered with by any stop order, injunction,
or other order or requirement of the SEC or any other governmental agency or
court, such Shelf Registration Statement will be deemed not to have been
effective during the period of such interference until the offering of
Registrable Securities pursuant to such Shelf Registration Statement may legally
resume.
(e) (i) If Instinet determines in the good faith judgment of the
Board of Directors, the availability of the Shelf Registration Statement for use
would cause Instinet to disclose material non-public information which
disclosure would be materially detrimental to Instinet or would materially
interfere with any material financing, acquisition, corporate reorganization or
16
16
merger or other transaction involving Instinet and any of its Subsidiaries and
the Board of Directors concludes, as a result of such potential disclosure or
interference, that it is in the best interests of Instinet to suspend the use of
such Shelf Registration Statement at such time, and (ii) Instinet shall furnish
to each Holder a certificate signed by the chief executive officer of Instinet
stating that in the good faith judgment of the Board of Directors, it would be
materially detrimental to Instinet for such Shelf Registration Statement to be
available for use in the near future and that it is, therefore, in the best
interests of Instinet to suspend the use of such Shelf Registration Statement,
then Instinet shall have the right to suspend the use of such Shelf Registration
Statement, provided that such suspension, together with any other suspension or
deferral of its obligations under Section 3.1 or Section 3.3, shall not be
effected more than twice in any twelve-month period or for a period of more than
one hundred and twenty (120) days, in the aggregate, for all such suspensions or
deferrals over such twelve-month period.
3.4. Expenses. Except as provided herein, Instinet shall pay all
Registration Expenses with respect to a particular offering (or proposed
offering). Except as provided herein, each Holder and Instinet shall be
responsible for its own fees and expenses of counsel and financial advisors and
internal administrative and similar costs, as well as their pro rata share of
underwriters' commissions and discounts, which shall not constitute Registration
Expenses.
3.5. Registration and Qualification. If and whenever Instinet is
required to effect the registration of any Registrable Securities under the
Securities Act as provided in Sections 3.1, 3.2 or 3.3, Instinet shall as
promptly as practicable:
(a) prepare, file and use its reasonable best efforts to cause to
become effective a registration statement under the Securities Act relating to
the Registrable Securities to be offered;
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective and to comply
with the provisions of the Securities Act with respect to the disposition of all
Registrable Securities until the earlier of (A) such time as all of such
Registrable Securities have been disposed of in accordance with the intended
methods of disposition set forth in such registration statement and (B) the
expiration of six months (or two years in the case of a registration pursuant to
Section 3.3) after such registration statement becomes effective; provided, that
such six-month or two-year period shall be extended for such number of days that
equals the number of days elapsing from (x) the date the written notice
contemplated by paragraph (f) below is given by Instinet to (y) the date on
which Instinet delivers to the Holders of Registrable Securities the supplement
or amendment contemplated by paragraph (f) below;
(c) furnish to the Holders of Registrable Securities and to any
underwriter of such Registrable Securities such number of conformed copies of
such registration statement and of each such amendment and supplement thereto
(in each case including all exhibits), such number of copies of the prospectus
included in such registration statement (including each preliminary prospectus
and any summary prospectus), in conformity with the requirements of the
Securities Act, such documents incorporated by reference in such registration
statement or prospectus, and such other documents, as the Holders of Registrable
Securities or such underwriter may reasonably request, and upon request a copy
of any and all transmittal letters or other
17
17
correspondence to or received from, the SEC or any other governmental agency or
self-regulatory body or other body having jurisdiction (including any domestic
or foreign securities exchange) relating to such offering;
(d) use its commercially reasonable efforts to register or qualify
all Registrable Securities covered by such registration statement under the
securities or blue sky laws of such U.S. jurisdictions as the Holders of such
Registrable Securities or any underwriter to such Registrable Securities shall
request, and use its reasonable best efforts to obtain all appropriate
registrations, permits and consents in connection therewith, and do any and all
other acts and things which may be necessary or advisable to enable the Holders
of Registrable Securities or any such underwriter to consummate the disposition
in such jurisdictions of its Registrable Securities covered by such registration
statement; provided, that Instinet shall not for any such purpose be required to
qualify generally to do business as a foreign corporation in any such
jurisdiction wherein it is not so qualified or to consent to general service of
process in any such jurisdiction;
(e) (i) use its best efforts to furnish to each Holder of
Registrable Securities included in such registration (each, a "Selling Holder")
and to any underwriter of such Registrable Securities an opinion of counsel for
Instinet addressed to each Selling Holder and dated the date of the closing
under the underwriting agreement (if any) (or if such offering is not
underwritten, dated the effective date of the registration statement), (ii) use
its best efforts to furnish to each Selling Holder a "cold comfort" and
"bring-down" letter addressed to each Selling Holder and any underwriter of such
Registrable Securities and signed by the independent public accountants who have
audited the financial statements of Instinet included in such registration
statement, in each such case covering substantially the same matters with
respect to such registration statement (and the prospectus included therein) as
are customarily covered in opinions of issuer's counsel and in accountants'
letters delivered to underwriters in underwritten public offerings of securities
and such other matters as the Selling Holders may reasonably request and, in the
case of such accountants' letter, with respect to events subsequent to the date
of such financial statements and (iii) cause such authorized officers of
Instinet to execute customary certificates as may be requested by the Selling
Holders or any underwriter of such Registrable Securities;
(f) as promptly as practicable, notify the Selling Holders in
writing (i) at any time when a prospectus relating to a registration pursuant to
Sections 3.1, 3.2 or 3.3 is required to be delivered under the Securities Act of
the happening of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading and (ii) of any request by the SEC or any
other regulatory body or other body having jurisdiction for any amendment of or
supplement to any registration statement or other document relating to such
offering, and in either such case, at the request of the Selling Holders prepare
and furnish to the Selling Holders a reasonable number of copies of a supplement
to or an amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
18
18
make the statements therein, in light of the circumstances under which they are
made, not misleading;
(g) cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange and automated interdealer
quotation system on which similar securities issued by Instinet are then listed;
(h) provide a transfer agent and registrar for all Registrable
Securities registered pursuant to such registration statement and a CUSIP number
for all such Registrable Securities, in each case not later than the effective
date of such registration;
(i) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make available to each seller
of Registrable Securities, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve (12) months, but not more than
eighteen (18) months, beginning with the first month after the effective date of
the Registration Statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act;
(j) to the extent reasonably requested by the lead or managing
underwriters, send appropriate officers of Instinet to attend any "road shows"
scheduled in connection with any such registration, with all out-of-pocket costs
and expense incurred by Instinet or such officers in connection with such
attendance to be paid by Instinet; provided that in connection with offerings
made pursuant to Sections 3.1 and 3.3, Instinet shall only be obligated to pay
such road show expenses in connection with a total of four such offerings; and
(k) furnish for delivery in connection with the closing of any
offering of Registrable Securities pursuant to a registration effected pursuant
to Sections 3.1, 3.2 or 3.3 unlegended certificates representing ownership of
the Registrable Securities being sold in such denominations as shall be
requested by the Selling Holders or the underwriters (it being understood that
any Reuters Entity and any Transferee would agree to use their commercially
reasonable efforts to arrange for delivery to the Depository Trust Company).
3.6. Conversion of Other Securities, Etc. In the event that any
Holder offers any options, rights, warrants or other securities issued by it or
any other Person that are offered with, convertible into or exercisable or
exchangeable for any Registrable Securities, the Registrable Securities
underlying such options, rights, warrants or other securities shall continue to
be eligible for registration pursuant to Sections 3.1, 3.2 and 3.3.
3.7. Underwriting; Due Diligence. (a) If requested by the
underwriters for any underwritten offering of Registrable Securities pursuant to
a registration requested under this Article III, Instinet shall enter into an
underwriting agreement with such underwriters for such offering, which agreement
will contain such representations and warranties by Instinet and such other
terms and provisions as are customarily contained in underwriting agreements of
Instinet to the extent relevant and as are customarily contained in underwriting
agreements generally with respect to secondary distributions to the extent
relevant, including, without limitation, indemnification and contribution
provisions substantially to the effect and to the extent provided in Section
3.8, and agreements as to the provision of opinions of counsel and accountants'
letters
19
19
to the effect and to the extent provided in Section 3.5(e). The Selling
Holders on whose behalf the Registrable Securities are to be distributed by such
underwriters shall be parties to any such underwriting agreement and the
representations and warranties by, and the other agreements on the part of,
Instinet to and for the benefit of such underwriters, shall also be made to and
for the benefit of such Selling Holders. Such underwriting agreement shall also
contain such representations and warranties by such Selling Holders and such
other terms and provisions as are customarily contained in underwriting
agreements with respect to secondary distributions, when relevant, including,
without limitation, indemnification and contribution provisions substantially to
the effect and to the extent provided in Section 3.8.
(b) In connection with the preparation and filing of each
registration statement registering Registrable Securities under the Securities
Act pursuant to this Article III, Instinet shall give the Selling Holders of
such Registrable Securities and the underwriters, if any, and their respective
counsel and accountants, such reasonable and customary access to its books and
records and such opportunities to discuss the business of Instinet with its
officers and the independent public accountants who have certified the financial
statements of Instinet as shall be necessary, in the opinion of such Holders and
such underwriters or their respective counsel, to conduct a reasonable
investigation within the meaning of the Securities Act.
3.8. Indemnification and Contribution. (a) In the case of each
offering of Registrable Securities made pursuant to this Article III, Instinet
agrees to indemnify and hold harmless, to the extent permitted by law, each
Selling Holder, each underwriter of Registrable Securities so offered and each
Person, if any, who controls any of the foregoing Persons within the meaning of
the Securities Act, the Affiliates of each of the foregoing, and the officers,
directors, employees and agents of each of the foregoing, against any and all
losses, liabilities, costs (including reasonable attorney's fees and
disbursements), claims and damages, joint or several, to which they or any of
them may become subject, under the Securities Act or otherwise, including any
amount paid in settlement of any litigation commenced or threatened, insofar as
such losses, liabilities, costs, claims and damages (or actions or proceedings
in respect thereof, whether or not such indemnified Person is a party thereto)
arise out of or are based upon any untrue statement by Instinet or alleged
untrue statement by Instinet of a material fact contained in the registration
statement (or in any preliminary or final prospectus included therein) or in any
offering memorandum or other offering document relating to the offering and sale
of such Registrable Securities prepared by Instinet or at its direction, or any
amendment thereof or supplement thereto, or in any document incorporated by
reference therein, or any omission by Instinet or alleged omission by Instinet
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however that Instinet
shall not be liable to any Person in any such case to the extent that any such
loss, liability, cost, claim or damage arises out of or relates to any untrue
statement or alleged untrue statement, or any omission, if such statement or
omission shall have been made in reliance upon and in conformity with
information relating to such Person, another holder of securities included in
such registration statement or underwriter furnished to Instinet by or on behalf
of such Person, other holder or underwriter specifically for use in the
registration statement (or in any preliminary or final prospectus included
therein), offering memorandum or other offering document, or any amendment
thereof or supplement thereto. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of any Selling
Holder, any other holder or any underwriter and shall survive the transfer of
such securities. The foregoing
20
20
indemnity agreement is in addition to any liability that Instinet may otherwise
have to each Selling Holder, other holder or underwriter of the Registrable
Securities or any controlling person of the foregoing and the officers,
directors, Affiliates, employees and agents of each of the foregoing. Each
Selling Holder, each underwriter of Registrable Securities so offered and each
Person, if any, who controls any of the foregoing Persons within the meaning of
the Securities Act, the Affiliates of each of the foregoing, and the officers,
directors, employees and agents of each of the foregoing shall not enter into
any settlement of any litigation commenced or threatened without the prior
written consent of Instinet (such consent not to be unreasonably withheld)
unless Instinet has failed to assume the defense of such action or employ
counsel reasonably satisfactory to the indemnified party.
(b) In the case of each offering made pursuant to this Agreement,
each Selling Holder, by exercising its registration rights hereunder, agrees to
indemnify and hold harmless, and to cause each underwriter of Registrable
Securities included in such offering (in the same manner and to the same extent
as set forth in Section 3.8(a)) to agree to indemnify and hold harmless,
Instinet, each other underwriter who participates in such offering, each other
Selling Holder or other holder with securities included in such offering and in
the case of an underwriter, such Selling Holder or other holder, and each
Person, if any, who controls any of the foregoing within the meaning of the
Securities Act and the officers, directors, Affiliates, employees and agents of
each of the foregoing, against any and all losses, liabilities, costs (including
reasonable attorney's fees and disbursements), claims and damages to which they
or any of them may become subject, under the Securities Act or otherwise,
including any amount paid in settlement of any litigation commenced or
threatened, insofar as such losses, liabilities, costs, claims and damages (or
actions or proceedings in respect thereof, whether or not such indemnified
Person is a party thereto) arise out of or are based upon any untrue statement
or alleged untrue statement by such Selling Holder or underwriter, as the case
may be, of a material fact contained in the registration statement (or in any
preliminary or final prospectus included therein) or in any offering memorandum
or other offering document relating to the offering and sale of such Registrable
Securities prepared by Instinet or at its direction, or any amendment thereof or
supplement thereto, or any omission by such Selling Holder or underwriter, as
the case may be, or alleged omission by such Selling Holder or underwriter, as
the case may be, of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but in each case only to the
extent that such untrue statement of a material fact is contained in, or such
material fact is omitted from information relating to such Selling Holder or
underwriter, as the case may be, furnished to Instinet by or on behalf of such
Selling Holder or underwriter, as the case may be, specifically for use in such
registration statement (or in any preliminary or final prospectus included
therein), offering memorandum or other offering document, or any amendment
thereof or supplement thereto. The foregoing indemnity is in addition to any
liability which such Selling Holder or underwriter, as the case may be, may
otherwise have to Instinet, or controlling persons and the officers, directors,
Affiliates, employees and agents of each of the foregoing.
(c) Each party entitled to indemnification under this Section 3.8
shall give notice to the party required to provide indemnification promptly
after such indemnified party has actual knowledge that a claim is to be made
against the indemnified party as to which indemnity may be sought, and shall
permit the indemnifying party to assume the defense of such claim or litigation
resulting therefrom and any related settlement and settlement negotiations,
subject to
21
21
the limitations on settlement set forth below; provided, that counsel for the
indemnifying party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the indemnified party
(whose approval shall not unreasonably be withheld), and the indemnified party
may participate in such defense at such party's expense; and provided, further,
that the failure of any indemnified party to give notice as provided herein
shall not relieve the indemnifying party of its obligations under this Section
3.8, to the extent such failure is not materially prejudicial. Notwithstanding
the foregoing, an indemnified party shall have the right to retain separate
counsel, with the reasonable fees and expenses of such counsel being paid by the
indemnifying party, if representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due to actual or
potential differing interests between such indemnified party and any other party
represented by such counsel or if the indemnifying party has failed to assume
the defense of such action (provided that in no event shall the indemnifying
party be responsible for the fees and costs of more than one such additional
counsel for all indemnified parties). No indemnifying party, in the defense of
any such claim or litigation, shall, except with the consent of each indemnified
party, consent to entry of any judgment or enter into any settlement that does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release, reasonably satisfactory to the
indemnified party, from all liability in respect to such claim or litigation.
Each indemnified party shall furnish such information regarding itself or the
claim in question as an indemnifying party may reasonably request in writing and
as shall be reasonably required in connection with defense of such claim and
litigation resulting therefrom.
(d) If the indemnification provided for in this Section 3.8 shall
for any reason be unavailable (other than in accordance with its terms) to an
indemnified party in respect of any loss, liability, cost, claim or damage
referred to therein, then each indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, cost, claim or damage in
such proportion as shall be appropriate to reflect (i) the relative benefits
received by the indemnifying party on the one hand and the indemnified party on
the other hand or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, the relative benefits and the relative fault of the
indemnifying party on the one hand and the indemnified party on the other with
respect to the statements or omissions which resulted in such loss, liability,
cost, claim or damage as well as any other relevant equitable considerations.
The relative benefits received by the indemnifying party and the indemnified
party shall be deemed to be in the same respective proportion as the net
proceeds (before deducting expenses) of the offering received by such party (or,
in the case of an underwriter, such underwriter's discounts and commissions)
bear to the aggregate offering price of the Registrable Securities or Other
Securities. The relative fault shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
indemnifying party on the one hand or the indemnified party on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission, but not by
reference to any indemnified party's stock ownership in Instinet. The amount
paid or payable by an indemnified party as a result of the loss, cost, claim,
damage or liability, or action in respect thereof, referred to above in this
paragraph (d) shall be deemed to include, for purposes of this paragraph (d),
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the
22
22
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) Indemnification and contribution similar to that specified in
the preceding paragraphs of this Section 3.8 (with appropriate modifications)
shall be given by Instinet, the Selling Holders and underwriters with respect to
any required registration or other qualification of securities under any state
law or regulation or governmental authority.
(f) The obligations of the parties under this Section 3.8 shall be
in addition to any liability which any party may otherwise have to any other
party.
3.9. Information by Holder. Each Holder shall furnish to Instinet
such information regarding such Holder and the distribution proposed by such
Holder as Instinet may reasonably request in writing and as shall be reasonably
required in connection with any registration, qualification or compliance
referred to in this Article III.
3.10. Rule 144 and Form S-3. Commencing 90 days after the Initial
Public Offering Date, Instinet shall use all reasonable efforts to ensure that
the conditions to the availability of Rule 144 set forth in paragraph (c)
thereof shall be satisfied. Instinet agrees to use all reasonable efforts to
file with the SEC in a timely manner all reports and other documents required of
Instinet under the Securities Act and the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), at any time after it has become subject to such
reporting requirements. Upon the request of any Holder of Registrable Securities
and for so long as such information is a necessary element of such Holders'
ability to avail itself of Rule 144, Instinet will deliver to such Holder (i) a
written statement as to whether it has complied with such requirements and (ii)
a copy of the most recent annual or quarterly report of Instinet, and such other
reports and documents so filed as a Holder may reasonably request in availing
itself of any rule or regulation of the SEC allowing a Holder to sell any such
securities without registration. Instinet further agrees to use its reasonable
efforts to cause all conditions to the availability of Form S-3 (or any
successor form) under the Securities Act of the filing of registration
statements under this Agreement to be met as soon as practicable after the
Initial Public Offering Date.
3.11. Holders' Priority. The Holders may exercise their rights under
Article III in such priority as they shall agree upon among themselves.
3.12. Holdback Agreement. (a) If any registration pursuant to this
Article III shall be in connection with an underwritten public offering of
Registrable Securities, each Holder of more than 5% of the Total Voting Power of
Instinet at the time of such registration or offering agrees not to effect any
public sale or distribution, including any sale under Rule 144, of any equity
security of Instinet or any security convertible into or exchangeable or
exercisable for any equity security of Instinet, (otherwise than through the
registered public offering then being made), within 7 days prior to or 90 days
(or such lesser period as the lead or managing underwriters may permit) after
the effective date of the registration statement (or the commencement of the
offering to the public of such Registrable Securities in the case of Rule 415
offerings); provided that each such Holder shall only be bound so long as (i)
each Instinet Transferee and (ii) each director and executive officer of
Instinet is similarly bound. Instinet hereby also agrees to be subject to the
restrictions set forth in the preceding sentence; provided,
23
23
that, Instinet shall not be so restricted from effecting any public sale or
distribution of any security in connection with any merger, acquisition,
exchange offer, subscription offer, dividend reinvestment plan or stock option
or other executive or employee benefit or compensation plan.
(b) Instinet agrees to require each Instinet Transferee to agree not
to effect any public sale or distribution, including any sale under Rule 144, of
any equity security of Instinet or any security convertible into or exchangeable
or exercisable for any equity security of Instinet (otherwise than through the
registered public offering then being made), within 7 days prior to or 90 days
(or such lesser period as the lead or managing underwriters may permit) after
the effective date of the registration statement (or the commencement of the
offering to the public of such Registrable Securities in the case of Rule 415
offerings) for any registration pursuant to this Article III made in connection
with an underwritten public offering of Registrable Securities.
3.13. Termination of Registration Rights. The right of any Holder to
request registration pursuant to Sections 3.1 or 3.3 shall be suspended on such
date when all shares of Registrable Securities held or entitled to be held by
such Holder may be sold pursuant to Rule 144(k) under the Securities Act;
provided that in order for such rights to terminate with respect to such Holder,
such Holder shall have received an opinion of counsel (which such counsel shall
be satisfactory to such Holder) confirming that all shares of Registrable
Securities held or entitled to be held by such Holder may be sold pursuant to
Rule 144(k). Instinet shall pay all expenses with respect to the opinion
referred to in this Section 3.13.
ARTICLE IV
CERTAIN COVENANT AND AGREEMENTS
4.1. No Violations. Instinet covenants and agrees that it will not,
and will cause the Instinet Entities not to, take any action or enter into any
commitment or agreement which may reasonably be anticipated to result, with or
without notice and with or without lapse of time or otherwise, in a
contravention of any stock exchange rule or similar requirement applicable to
any Reuters Entity (of which Instinet has knowledge of or has otherwise been
made aware by Reuters). Reuters covenants and agrees that it will not, and will
cause the Reuters Entities not to, take any action or enter into any commitment
or agreement which may reasonably be anticipated to result, with or without
notice and with or without lapse of time or otherwise, in a contravention of any
stock exchange rule or similar requirement applicable to any Instinet Entity (of
which Reuters has knowledge or has otherwise been made aware of by Instinet).
4.2. Regulatory Requirements. Subject to the terms and conditions
hereof, Instinet agrees, and agrees to cause each Instinet Entity, and Reuters
agrees, and agrees to cause each Reuters Entity, to use their commercially
reasonable efforts to promptly take, or cause to be promptly taken, or to
refrain or cause to refrain from, as applicable, all action and to do, or cause
to be done, all things necessary, on their respective parts, to assist each
other in obtaining all governmental licenses, permits, consents, approvals,
authorizations, qualifications and orders and to permit each other to be in
compliance with all legal and regulatory requirements (of which such party has
knowledge or has otherwise been made aware of by the other party hereto) as are
reasonably necessary in connection with the operation of their respective
businesses. Instinet shall promptly furnish, and shall cause each Instinet
Entity to furnish, Reuters with such information and assistance as Reuters may
reasonably request in connection with the preparation
24
24
of any necessary filings or submissions by any Reuters Entity to any
governmental or regulatory agency or stock exchange or as otherwise necessary to
comply with law or regulation, including, without limitation, any filings
necessary under the provisions of the HSR Act, the Securities Act, the Exchange
Act or any rules or regulations of the European Union or pursuant to the
requirements of the London Stock Exchange. Reuters shall furnish, and shall
cause each Reuters Entity to furnish, Instinet with such information and
assistance as Instinet may reasonably request in connection with the preparation
of any necessary filings or submissions by any Instinet Entity to any
governmental or regulatory agency or stock exchange or as otherwise necessary to
comply with law or regulation, including, without limitation, any filings
necessary under the provisions of the HSR Act, the Securities Act, the Exchange
Act or any rules or regulations of the European Union.
4.3. Fees and Expenses. Instinet hereby agrees to pay promptly upon
request the fees and reasonable out-of-pocket expenses of the financial advisors
of Reuters in connection with Instinet's Initial Public Offering.
4.4. Delaware 203. So long as the Reuters Entities or any Transferee
and its Affiliates beneficially own 15% or more of the Total Voting Power of
Instinet, Instinet hereby agrees not to amend its Certificate of Incorporation
to "opt-in" to Delaware 203 without the prior written consent of Reuters or such
Transferee. At any time within three years of the date the Reuters Entities
cease to beneficially own at least 15% of the Total Voting Power of Instinet,
Reuters shall vote all of the Common Stock held by Reuters Entities in favor of
any amendment (which is approved by the Board of Directors) to Instinet's
Certificate of Incorporation that proposes to "opt-in" to Delaware 203.
4.5. Limitation on Incurrence of Indebtedness. So long as the
Reuters Entities beneficially own more than 50% of the Total Voting Power of
Instinet, Instinet hereby agrees not to incur (after giving pro forma effect to
such incurrence) in excess of an aggregate of $400 million of Net Indebtedness
outstanding at any one time without Reuters' prior written consent.
ARTICLE V
INFORMATION RIGHTS
5.1. Financial Information. (a) So long as the Reuters Entities
beneficially own 50% or more of the Total Voting Power of Instinet, Instinet
shall deliver to the Reuters Parent:
(i) for each fiscal month, (x) a balance sheet of Instinet and
its consolidated Subsidiaries (including amounts owed by or owing to
the Reuters Entities) as of the end of such fiscal month prepared on
generally the same basis as is prepared by Instinet and submitted to
the Reuters Parent on the date hereof, together with the related
statements of stockholders' equity and the related income statements
for Instinet and its consolidated Subsidiaries for such fiscal month
and for the year to date, and broken out by each division or segment
of Instinet for which Instinet provides separate financial
information, if any, on a basis consistent with the basis Instinet
reports such division or segment on the date hereof; provided that
Instinet may reasonably change such internal reporting practices if
written notice of such change is provided to Reuters, (all of the
25
25
foregoing financial statements, collectively, the "Financial
Statements") and (y) the information set forth in Schedule 5.1(a)
hereto; and
(ii) for each fiscal year and half-year, (A) draft Financial
Statements and supporting information consistent with the Reuters
Parent's accounting practices and policies (together with such
information as is required by the Reuters Parent's accounting
practices and policies as in effect from time to time) of Instinet
and its consolidated Subsidiaries as of the last day of such fiscal
year (or such other period as may be required by the Reuters Parent
for public reporting purposes), together with a reconciliation
thereof to US GAAP, (B) for year-end audited US GAAP only Financial
Statements of Instinet and its consolidated Subsidiaries (reported
on by Instinet's primary outside auditor who shall be an
internationally recognized accounting firm) as of the last day of
such fiscal year (or such other period as may be required by the
Reuters Parent for public reporting purposes), together with a
reconciliation thereof to UK GAAP, (together with such information
as is required by the Reuters Parent's accounting practices and
policies from time to time) and (C) commentary on key features of
performance and comparisons of prior corresponding periods.
(b) So long as the Reuters Entities beneficially own 20% or more of
the Total Voting Power of Instinet (or if the Reuters Parent is otherwise
required to treat Instinet as an "associate" under UK GAAP), Instinet shall
deliver to the Reuters Parent:
(i) for each fiscal quarter, (A) Financial Statements for such
fiscal quarter and for the year to date, together with a reconciliation
thereof to UK GAAP, (B) commentary on key features of performance and
comparisons of prior corresponding periods and (C) the information set
forth in Schedule 5.1(b)(i) hereto; and
(ii) for each fiscal year and half-year, (A) draft Financial
Statements and supporting information of Instinet and its consolidated
Subsidiaries as of the last day of such fiscal year and half-year,
together with a reconciliation thereof to UK GAAP, (B) audited year-end
only Financial Statements of Instinet and its consolidated Subsidiaries,
together with a reconciliation thereof to UK GAAP, reported on by
Instinet's primary outside auditor who shall be an internationally
recognized accounting firm and (C) commentary on key features of
performance and comparisons of prior corresponding periods.
(c) Instinet shall use all reasonable efforts consistent with past
practices, and in consultation with the Reuters Parent, to prepare and submit
(i) all Financial Statements and related financial information pursuant to
Section 5.1(a), in accordance with the Reuters Parent accounting policies and
practices (as may reasonably change from time to time) and (ii) all Financial
Statements and related financial information pursuant to Section 5.1(b) in
accordance with US GAAP, in each case except as otherwise set forth herein. The
Reuters Parent shall provide Instinet with such assistance as is reasonably
necessary, consistent with past practice, to assist Instinet in ensuring that
such financial information is prepared in accordance with the Reuters Parent's
accounting practices and policies. Instinet shall provide the Reuters Parent
with reasonable access to such employees of the Instinet Entities as is
reasonably necessary to
26
26
understand and evaluate the information required to be submitted to the Reuters
Parent by Instinet pursuant to Sections 5.1 (a) and (b).
(d) (i) So long as the Reuters Entities beneficially own 50% or more
of the Total Voting Power of Instinet and except as otherwise expressly
provided, the information required by Section 5.1(a) shall be delivered to the
Reuters Parent within the timeframes required by the Reuters Parent's internal
and external accounting and reporting practices as in effect on the date hereof
or as may be reasonably modified by the Reuters Parent subject to Instinet's
consent, which consent shall not be unreasonably withheld. Instinet shall use
commercially reasonable efforts to provide all information to the Reuters Parent
pursuant to this Section 5.1 in a format reasonably consistent with the format
of the Reuters Parent public financial statements as in effect from time to
time. Instinet shall cooperate with the Reuters Parent in connection with the
preparation of the financial information required by the Reuters Parent, and
shall make financial officers and managers available, upon reasonable notice and
at reasonable times, to discuss and review with the Reuters Parent and its
independent accountants the financial information provided to the Reuters Parent
pursuant to this Section 5.1(d)(i).
(ii) So long as the Reuters Entities beneficially own at least 20%
or more but less than 50% of the Total Voting Power of Instinet and except as
otherwise expressly provided, Instinet shall use reasonable commercial efforts
to deliver, the information required by Section 5.1(b) to the Reuters Parent
within the timeframes required by the Reuters Parent's internal and external
accounting and reporting practices as in effect on the date hereof or as may be
reasonably modified by the Reuters Parent and agreed with Instinet. Instinet
shall cooperate with Reuters in connection with the preparation of the financial
information required by Reuters, and shall make financial officers and managers
available, upon reasonable notice and at reasonable times, to discuss and review
with Reuters and its independent accountants the financial information provided
to Reuters pursuant to this Section 5.1(d)(ii).
(e) So long as Instinet is required to deliver information pursuant
to Section 5.1(a),
(i) Instinet and the Reuters Parent shall coordinate the public
release and disclosure of their public financial information including,
but not limited to, (A) earnings releases and trading statements, (B)
quarterly and annual reports and (C) restatement of earnings, so that all
public disclosure of material new financial information of either which
includes or is included in information of the other shall be made on the
same day and, as far as practicably possible, at the same time, and
provided that if either is unprepared to make its own release or disclose
on the scheduled day through no fault of the other, the other may proceed
with its release or disclosure as previously contemplated provided,
further, that the provisions of this subsection (e)(i) shall not apply to
either party, if in the reasonable judgment of the releasing party, it is
required by law, market practice or regulation to release information on a
basis inconsistent with the other party's schedule;
(ii) Instinet shall provide the Reuters Parent with drafts of
Instinet's public quarterly, annual and other filings, disclosures and
reports that contain financial information and/or discussion and the
Reuters Parent shall provide Instinet with drafts of
27
27
the sections of the Reuters Parent's public quarterly, annual and other
filings, disclosures and reports that contain financial information and/or
discussion that relates to Instinet, in each case sufficiently in advance
of filing to permit the recipient to review such materials to ensure
consistency with similar information to be included in its own materials;
and
(iii) So long as the Reuters Entities beneficially own 50% or
more of the Total Voting Power of Instinet, Instinet shall not change its
fiscal year without the prior written consent of Reuters.
5.2. Annual Business Plan and Budget. So long as the Reuters
Entities beneficially own 50% or more of the Total Voting Power of Instinet,
Instinet shall, consistent with past practice and in accordance with reporting
timetables agreed to by the parties hereto, (A) prepare and submit to the
Reuters Parent a profit forecast for the upcoming three fiscal years including
(i) business forecasts and (ii) details of assumptions used, (B) provide the
Reuters Parent a copy of the budget for the upcoming fiscal year and in
accordance with the Reuters Parent's reporting timetable as may be changed from
time to time subject to Instinet's consent, which consent shall not be
unreasonably withheld, including monthly projections of capital, profits and
losses, manpower and cash flow (collectively the "Annual Budget"), (C) provide
an updated quarterly outlook of information provided under clause (B) above for
current and upcoming financial year in accordance with existing timetables
(collectively the "Outlook") and (D) provide half-yearly tax forecasts
consistent with past practice. Notwithstanding the foregoing, so long as the
Reuters Entities beneficially own at least 20% or more of the Total Voting Power
of Instinet, Instinet shall provide the Reuters Parent with an Annual Budget of
profits or losses with quarterly updated Outlooks of profits or losses in
accordance with reporting timetables agreed to by the parties hereto.
5.3. Audit Rights. To the extent that the Reuters Audit Committee
is required by law or stock exchange requirements to audit, or cause to audit,
any of the affairs of any Instinet Entity, Instinet shall allow on reasonable
notice, the Reuters Audit Committee or its representatives to audit the affairs
of Instinet, including (i) having access to (and take copies of) the records of
the Instinet Entities (and the working papers of its accountants); (ii) having
access to the premises of any Instinet Entity and to have the ability to
consult and discuss matters with the auditors, advisors and management of any
Instinet Entity (during normal office hours). Instinet shall, and (iii)
procuring that each Instinet Entity shall, co-operate fully with the Reuters
Audit Committee and its representatives in relation to this process. In
addition, Instinet shall use all reasonable efforts to allow the independent
accountants of Reuters to audit the working papers of and to assist in any
review undertaken by Instinet's independent accountants. The Reuters Audit
Committee shall coordinate its efforts in good faith with, and work with and
through, the Audit Committee of the Board of Directors and the Instinet
internal audit department to accomplish such objectives.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Reuters represents and warrants as follows:
(a) Status and Authority. Reuters is a company duly organized and
validly existing under the laws of England and Wales. The execution and delivery
by Reuters of this
28
28
Agreement and the performance of its obligations hereunder have been duly
authorized by all necessary corporate action on the part of Reuters, and this
Agreement has been duly executed and delivered by the duly authorized officers
of Reuters and constitutes the valid, legal and binding obligation of Reuters.
(b) No Conflicts.
(i) The execution, delivery and performance of this Agreement by
Reuters will not result in (A) any conflict with the charter documents of
any Reuters Entity, (B) any material breach or violation of or default
under any statute, law, rule, regulation, judgment, decree, order or any
material mortgage, deed of trust, indenture, agreement or any other
instrument to which any Reuters Entity is a party or by which any of their
respective material properties or assets are bound, or (C) the creation or
imposition of any lien, charge, pledge or encumbrance thereon, except for
such breaches, violations or defaults and such liens, charges, pledges or
encumbrances as would not, individually or in the aggregate, have a
material adverse effect on Reuters' business or adversely affect the
ability of Reuters' to perform its obligations hereunder.
(ii) No consent, approval or authorization of or filing with any
governmental authority is required with respect to Reuters in connection
with the execution and delivery of this Agreement, and the performance by
Reuters of its obligations hereunder.
(c) No Litigation. There no judicial or administrative actions,
proceedings or investigations pending or, to the best knowledge or Reuters,
threatened, which question the validity of this Agreement or any action taken or
to be taken by Reuters in connection herewith.
6.2. Instinet represents and warrants as follows:
(a) Status and Authority. Instinet is a company duly organized,
validly existing in good standing under the laws of Delaware. The execution and
delivery by Instinet of this Agreement and the performance of its obligations
hereunder have been duly authorized by all necessary corporate action on the
part of Instinet, and this Agreement has been duly executed and delivered by the
duly authorized officers of Instinet and constitutes the valid, legal and
binding obligation of Instinet.
(b) No Conflicts.
(i) The execution, delivery and performance of this Agreement by
Instinet will not result in (A) any conflict with the charter documents of
any Instinet Entity (B) any material breach or violation of or default
under any statute, law, rule, regulation, judgment, decree, order or any
material mortgage, deed of trust, indenture, agreement or any other
instrument to which any Instinet Entity is a party or by which any of
their respective material properties or assets are bound, or (C) the
creation or imposition of any lien, charge, pledge or encumbrance thereon,
except for such breaches, violations or defaults and such liens, charges,
pledges or encumbrances as would not, individually or in the aggregate,
have a material adverse effect on Instinet's business or adversely affect
the ability of Instinet to perform its obligations hereunder.
29
29
(ii) Except as set forth on Schedule 6.2(b)(ii), no consent,
approval or authorization of or filing with any governmental authority is
required with respect to Instinet in connection with the execution and
delivery of this Agreement, and the performance by Instinet of its
obligations hereunder.
(c) No Litigation. There are no judicial or administrative actions,
proceedings or investigations pending or to the best knowledge of Instinet,
threatened, which question the validity of this Agreement or any action taken or
to be taken by Instinet in connection herewith.
ARTICLE VII
MISCELLANEOUS
7.1. Subsidiaries. Reuters agrees and acknowledges that Reuters
shall be responsible for the performance by each Reuters Entity of the
obligations hereunder applicable to such Reuters Entity. Instinet agrees and
acknowledges that Instinet shall be responsible for the performance by each
Instinet Entity of the obligations hereunder applicable to such Instinet Entity.
7.2. Amendments. This Agreement may be amended, supplemented or
otherwise modified only by a writing duly executed by or on behalf each of the
parties hereto. No waiver by any party of any of the provisions hereof shall be
effective unless explicitly set forth in writing and executed by the party so
waiving. Except as provided in the preceding sentence, no action taken pursuant
to this Agreement, including without limitation, any investigation by or on
behalf of any party, shall be deemed to constitute a waiver by the party taking
such action of compliance with any representations, warranties, covenants or
agreements contained herein. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach.
7.3. Severability. If any provision of this Agreement or the
application of any such provision to any party or circumstances shall be
determined by any court of competent jurisdiction to be invalid, illegal or
unenforceable to any extent, the remainder of this Agreement or such provision
of the application of such provision to such party or circumstances, other than
those to which it is so determined to be invalid, illegal or unenforceable,
shall remain in full force and effect to the fullest extent permitted by law and
shall not be affected thereby, unless such a construction would be unreasonable.
7.4. Notices. All notices and other communications required or
permitted hereunder shall be in writing, shall be deemed duly given upon actual
receipt, and shall be delivered (a) in person, (b) by registered or certified
mail, postage prepaid, return receipt requested or (c) by facsimile or other
generally accepted means of electronic transmission (provided that a copy of any
notice delivered pursuant to this clause (c) shall also be sent pursuant to
clause (a) or (b)) above, addressed as follows:
(a) if to Instinet, to:
Instinet Corporation
Three Times Square
10th Floor
30
30
Attention: General Counsel
Telecopy No.: 000-000-0000
with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxx X. Xxxxxx, Esq.
Telecopy No.: 212-225-3999
(b) If to Reuters, to:
Reuters Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxxxx
XX0X 0XX
Attention: General Counsel
Telecopy No.: 011-44-207-542-5896
with a copy to:
Reuters America Inc.
The Reuters Building
0 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Telecopy No: 000-000-0000
and to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx, Esq.
Telecopy No.: 000-000-0000
or to such other addresses or telecopy numbers as may be specified by like
notice to the other parties; provided, however, that all notices and other
communications required or permitted hereunder regarding any Covered Transaction
shall be delivered only to Instinet Group Incorporated and Reuters Limited (with
a copy to Reuters America Inc.).
7.5. Further Assurances. Reuters and Instinet shall execute,
acknowledge and deliver, or cause to be executed, acknowledged and delivered,
such instruments and take such other action as may be reasonably necessary or
advisable to carry out their obligations under this Agreement and under any
exhibit, document or other instrument delivered pursuant hereto.
31
31
7.6. Governing Law. This Agreement shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York.
7.7. Entire Agreement. This Agreement constitutes the entire
understanding of the parties hereto with respect to the subject matter hereof.
7.8. Successors. This Agreement shall be binding upon, and shall
inure to the benefit of, the parties hereto and their respective successors and
permitted assigns. Except as set forth in Section 7.12, nothing contained in
this Agreement, express or implied, is intended to confer upon any other Person
or entity any benefits, rights or remedies.
7.9. Jurisdiction; Specific Performance. The parties to this
Agreement agree that jurisdiction and venue in any action brought by any party
hereto pursuant to this Amendment shall properly lie and shall be brought in any
federal or state court located in the Borough of Manhattan, City and State of
New York. By execution and delivery of this Agreement, each party hereto
irrevocably submits to the jurisdiction of such courts for itself or herself and
in respect of its or her property with respect to such action. The parties
hereto irrevocably agree that venue would be proper in such court, and hereby
irrevocably waive any objection that such court is an improper or inconvenient
forum for the resolution of such action. The parties hereto acknowledge and
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached.
7.10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original instrument, but all of
which together shall constitute but one and the same agreement.
7.11. Assignment. Neither this Agreement nor any right or obligation
hereunder is assignable in whole or in part by any party without the prior
written consent of the other party hereto. Notwithstanding the foregoing, (a)
Reuters may transfer its rights and obligations under Section 2.3 (in whole or
in part), Article III (in whole or in part), Sections 4.1 and 4.2 (in whole),
Sections 4.4 and 4.5 (in whole and in part) and Sections 5.1 and 5.2 (in whole)
to any Transferee (and any Transferee may transfer such rights and obligations
to any subsequent Transferee) without the prior written consent of Instinet;
provided that a Transferee of less than a majority of the Total Voting Power of
Instinet may receive only those rights and obligations thereunder as to which
Reuters would be entitled to as a holder of such percentage interest or as are
specified herein.
(b) Any assignment pursuant to paragraph (a) of this Section 7.11
shall be effective upon receipt by Instinet of (i) written notice from the
transferring Holder stating the name and address of any Transferee and
indentifying the number of Registrable Securities with respect to which the
rights under this Agreement are being transferred and the nature of the rights
so transferred and (ii) a written agreement in substantially the form attached
as Exhibit A hereto from such Transferee to be bound by the applicable terms of
this Agreement.
7.12. Effective Only Following Completion of Initial Public
Offering. Neither this Agreement nor any right or obligation hereunder shall be
binding on the parties hereto and
32
32
enforceable against them in accordance with the terms thereof unless and until
the Initial Public Offering is complete.
33
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
the day and year first above written.
REUTERS LIMITED
By: ______________________________
Name:
Title:
INSTINET GROUP INCORPORATED
By: ______________________________
Name:
Title:
