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EXECUTION COPY
ASSET CONTRIBUTION AGREEMENT
BY AND BETWEEN
INSTINET CORPORATION
AND
INSTINET GROUP LLC
DATED AS OF JULY 31, 2000
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ASSET CONTRIBUTION AGREEMENT dated as of July 31, 2000, by and
between Instinet Corporation, a corporation organized under the laws of Delaware
("ICorp") and Instinet Group LLC, a limited liability corporation organized
under the laws of Delaware ("IGL"), each (each a "Party" and, collectively, the
"Parties").
WHEREAS, IGL is a wholly-owned subsidiary of ICorp and was
formed to acquire certain assets, business and operations of ICorp;
WHEREAS, ICorp desires to contribute to IGL, and IGL desires
to acquire from ICorp, the ICorp Assets, in consideration for the assumption by
IGL of the ICorp Liabilities and the issuance by IGL to ICorp of membership
interests of IGL, all as more fully described in this Agreement;
WHEREAS, Reuters Holdings Switzerland SA, a corporation
organized under the laws of Switzerland (the "Subscriber"), and IGL are entering
into a Subscription Agreement dated the date hereof pursuant to which IGL is
issuing Shares of Common Stock (as such term is defined in IGL's Limited
Liability Company Operating Agreement) to RHSSA in exchange for $167,300,000,
which represents the value of cash and cash equivalents being retained by ICorp
pursuant to this Agreement (the "Subscription");
WHEREAS, both ICorp and Subscriber are indirect, wholly-owned
subsidiaries of Reuters Group PLC;
NOW, THEREFORE, in consideration of the foregoing and the
respective premises, mutual covenants and agreements of the Parties, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and subject to the terms and conditions hereof, the Parties agree
as follows:
Article I
DEFINITIONS
1.1. Definitions. For the purpose of this Agreement the
following terms shall have the following meanings:
"Action" means any demand, action, suit, countersuit,
arbitration, inquiry, proceeding or investigation by or before any federal,
state, local, foreign or international Authority or any arbitration or mediation
tribunal.
"Adjusted Units" has the meaning set forth in Section 3.4.
"Aggregate IGL Concluded Value" has the meaning set forth in
Section 3.4.
"Agreement" means this Asset Contribution Agreement, including
all of the Schedules hereto.
"Authority" means any governmental, judicial, legislative,
executive, administrative, or regulatory authority of the United States, or of
any state, local or foreign
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government, or any government of any possession or territory of the United
States, or any subdivision, agency, commission, office or authority of any of
the foregoing, or any Self-Regulatory Organization.
"Concluded Value" has the meaning set forth by Xxxxxxxx Xxxxx
Xxxxxx & Xxxxx in their report dated as of April 30, 2000.
"Consents" means any consents, waivers or approvals from, or
notification requirements to, any third parties.
"Contracts" means any and all written executory contracts and
agreements, including those that are franchises, warranties, understandings,
arrangements, leases of personal property, licenses of personal property,
registrations, authorizations, mortgages, bonds, notes and other instruments.
"Euroclear Guarantee" has the meaning set forth in Section
2.2(b)(i)(C).
"Euroclear Fixed Income Liabilities" has the meaning set forth
in Section 2.2(b)(i)(C).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended and the rules and regulations promulgated thereunder from time to time.
"Excluded Assets" has the meaning set forth in Section 2.1(c).
"Excluded Liabilities" has the meaning set forth in Section
2.2(c).
"Fixed Income Liabilities" has the meaning set forth in
Section 2.2(b)(i)(C).
"Governmental Approvals" means any notices, reports or other
filings to be made, or any consents, registrations, approvals, permits or
authorizations to be obtained from, any Authority.
"ICorp" has the meaning set forth in the preamble.
"ICorp Assets" has the meaning set forth in Section 2.1(b).
"ICorp Liabilities" has the meaning set forth in Section
2.2(b).
"IGL" has the meaning set forth in the preamble.
"IGL Units" has the meaning set forth in Section 2.3.
"Indemnified Party" has the meaning set forth in Section
4.4(a).
"Indemnifying Party" has the meaning set forth in Section
4.4(a).
"Instinet Business" means the business as conducted by ICorp
and its subsidiaries on the date hereof.
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"IUK" has the meaning set forth in Section 2.2(b)(i)(C).
"IUK Guarantee" has the meaning set forth in Section
2.2(b)(i)(C).
"IUK Fixed Income Liabilities" has the meaning set forth in
Section 2.2(b)(i)(C).
"Liabilities" means any and all losses, claims, charges,
debts, demands, actions, causes of action, suits, damages, obligations,
payments, costs and expenses, sums of money, accounts, reckonings, indemnities
and similar obligations, exonerations, covenants, contracts, controversies,
agreements, promises, doings, omissions, variances, guarantees, make whole
agreements and similar obligations, and other liabilities, including all
contractual obligations, whether absolute or contingent, matured or unmatured,
liquidated or unliquidated, accrued or unaccrued, known or unknown, whenever
arising, and including those arising under any law, rule, regulation, Action,
threatened or contemplated Action (including the costs and expenses of demands,
assessments, judgments, settlements and compromises relating thereto and
attorneys' fees and any and all costs and expenses whatsoever reasonably
incurred in investigating, preparing or defending against any such Actions or
threatened or contemplated Actions), order or consent decree of any Authority or
any award of any arbitrator or mediator of any kind, and those arising under any
contract, commitment or undertaking, including those arising under this
Agreement, whether or not recorded or reflected or required to be recorded or
reflected on the books and records or financial statements of any Person.
"Operating Agreement" means the Limited Liability Company
Operating Agreement of IGL.
"Parties" has the meaning set forth in the preamble.
"Party" has the meaning set forth in the preamble.
"Person" means an individual, a general or limited
partnership, a corporation, a trust, a joint venture, an unincorporated
organization, a limited liability entity, any other entity and any Authority.
"Report" has the meaning set forth in Section 3.4.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder from time to time.
"Self-Regulatory Organization" has the meaning set forth in
section 3(a)(26) of the Exchange Act.
"Shares of Common Stock" has the meaning set forth in the
Operating Agreement.
"Subscriber" has the meaning set forth in the preamble.
"Subscription" has the meaning set forth in the preamble.
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"Transferred Business" has the meaning set forth in Section
3.4.
"Transferred Companies" means BD Holding of Nevada, LP, a
limited partnership organized under the laws of Delaware; X.X. Xxxxxxxxx + Co.,
Inc., a corporation organized under the laws of Delaware; Instinet (Schweiz),
AG, a corporation organized under the laws of Switzerland; Instinet Bermuda
Limited, a corporation organized under the laws of Bermuda; Instinet Clearing
Services, Inc. a corporation organized under the laws of Delaware; Instinet
Research, Inc., a corporation organized under the laws of Delaware; Xxxxxxxx.xxx
Corporation, a corporation organized under the laws of Delaware; Instinet
International Corporation, a corporation organized under the laws of Delaware;
Thamesway Inc., a corporation organized under the laws of Connecticut; Nasdaq
Stock Market, Inc., a corporation organized under the laws of Delaware;
Harborview, LLC, a limited liability company organized under the laws of
Delaware; and Xxxxx, Xxxxx & Xxxx, Inc., a corporation organized under the laws
of Delaware.
1.2. Interpretation. In this Agreement and in the Schedules
and Exhibits hereto:
(a) the Table of Contents and headings are for convenience
only and shall not affect the interpretation of this Agreement;
(b) unless otherwise specified, references to Articles,
Sections, clauses, Schedules and Exhibits are references to Articles, Sections
and clauses of, and Schedules and Exhibits to, this Agreement;
(c) references to any document or agreement, including this
Agreement, shall be deemed to include references to such document or agreement
as amended, supplemented or replaced from time to time in accordance with its
terms and (where applicable) subject to compliance with the requirements set
forth therein;
(d) references to any party to this Agreement or any other
document or agreement shall include its successors and permitted assigns; and
(e) whenever in this Agreement, a contract or instrument is
referred to as "enforceable," such statement shall be deemed to be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws relating to the enforcement of creditors' rights generally
and by general principles of equity.
Article II
TRANSFER OF ASSETS AND ASSUMPTION OF LIABILITIES
2.1. Transfer of Assets. (a) Subject to the receipt of all
consents, approvals or authorizations of any Authority, or any other Person,
necessary to consummate the transactions contemplated herein, upon the terms and
subject to the conditions set forth in this Agreement, ICorp hereby contributes,
assigns, transfers, conveys and delivers to IGL, and IGL hereby accepts from
ICorp, all of ICorp's right, title and interest in and to the ICorp Assets.
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(b) For purposes of this Agreement, "ICorp Assets" shall mean
the assets, properties, business and goodwill of ICorp of every kind and
description, tangible and intangible, real, personal and mixed, wherever located
and whether or not reflected on the balance sheet accounts of ICorp, existing as
of the date hereof, including, without limitation:
(i) all Contracts, leases and other agreements of every
nature, including all subscriber agreements, and all books, records,
account statements, correspondence and other data and papers of every
nature, relating to the business or operations of ICorp, its employees,
customers, suppliers or others having business dealings with ICorp;
(ii) all hardware, software, and other computer systems
related or incidental to the conduct of the business or operations of
ICorp, including, without limitation, the operation of the Real-Time
Trading Service, the Crossing Network, MarketMatch, and other order
routing, trading, negotiation, research and analytics, and data
dissemination services offered by ICorp;
(iii) all trade names, trademarks, copyrights and pending
applications therefor;
(iv) all rights and interests which ICorp has in and to the
use of the name "Instinet Corporation" or "Instinet" and any of the
names of the Transferred Companies, and any variant or abbreviation of
any thereof and any logos associated with any thereof, together with
all goodwill, going concern value and like intangibles of ICorp;
(v) all trade secrets and proprietary rights to any and all
processes and inventions relating to the business or operations of
ICorp;
(vi) all memberships and interests of ICorp in memberships in
any securities or commodities exchange, or in any Self-Regulatory
Organization, and in any agreements relating to, or under which ICorp
has, the use or right to use, or an interest in, any such membership;
(vii) all equity interests and creditor interests which ICorp
has in any person, firm or corporation, including, without limitation,
its equity interests in the Transferred Companies, as described on
Schedule 2.1(b)(vii);
(viii) all receivables;
(ix) all furniture, fixtures and leasehold improvements; and
(x) all known and unknown, liquidated or unliquidated,
contingent or fixed, rights or causes of action which ICorp has or may
have against any third party and all such rights which ICorp has or may
have in or to any asset or property, excluding, however, all known or
unknown, liquidated or unliquidated, contingent or fixed, causes of
action which ICorp has or may have to the extent they arise out of or
relate to any liability, obligation or claim not to be assumed by IGL
pursuant to Section 2.2(c).
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Notwithstanding the foregoing, the ICorp Assets shall not in any event include
the Excluded Assets referred to in Section 2.1(c) below, nor the assets to be
retained by ICorp pursuant to clause (x) above.
(c) For the purposes of this Agreement, "Excluded Assets"
shall mean the assets listed or described on Schedule 2.1(c) and the contracts,
agreements, books, records, account statements, correspondence and other data
and papers of every nature, relating solely to the assets being retained by
ICorp pursuant to this Section 2.1(c) or the liabilities of ICorp not being
assumed pursuant to Section 2.2.
2.2. Assumption of Liabilities. (a) In furtherance of and as a
part of the contribution of the ICorp Assets to IGL, IGL hereby assumes and
agrees faithfully to perform and fulfill all the ICorp Liabilities in accordance
with their respective terms. IGL shall be responsible for all the ICorp
Liabilities, regardless of when or where such Liabilities arose or arise, or
whether the facts on which they are based occurred prior to or subsequent to the
date hereof, regardless of where or against whom such Liabilities are asserted
or determined or whether asserted or determined prior to the date hereof, and
regardless of whether arising from or alleged to arise from negligence,
recklessness, violation of law, fraud or misrepresentation by ICorp or IGL or by
any of their respective directors, officers, employees or agents.
(b) For the purposes of this Agreement, "ICorp Liabilities"
shall mean (without duplication):
(i) all Liabilities, including, without limitation, such
liabilities and claims, if any, arising under the Securities Act or the
Exchange Act, relating to, arising out of or resulting from:
(A) ICorp's business and operations, as conducted by
ICorp at any time prior to or on, or as conducted by IGL
after, the date hereof (including any Liability relating to,
arising out of or resulting from any act or failure to act by
any director, officer, employee, agent or representative
(whether or not such act or failure to act is or was within
such Person's authority));
(B) the ICorp Assets, whether arising before, on or
after the date hereof; and
(C) (x) the guarantee made by ICorp, on behalf of
Instinet U.K. Limited ("IUK") in favor of any IUK client,
dated as of January 3, 2000 (the "IUK Guarantee"), except for
any Liability under the IUK Guarantee arising out of the fixed
income business of IUK (the "IUK Fixed Income Liabilities")
and (y) the guarantee made by ICorp, on behalf of IUK in favor
of Xxxxxx Guaranty Trust Company of New York, in the amount of
$250,000,000 (the "Euroclear Guarantee"), except for any
Liability under the Euroclear Guarantee arising out of the
fixed income business of IUK (the "Euroclear Fixed Income
Liabilities" and, together with the IUK Fixed Income
Liabilities, the "Fixed Income Liabilities"); and
(ii) the Liabilities listed on Schedule 2.2(b)(ii).
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Notwithstanding the foregoing, the ICorp Liabilities shall not include the
Excluded Liabilities referred to in Section 2.2(c) below.
(c) For the purposes of this Agreement, "Excluded Liabilities"
shall mean:
(i) any and all Liabilities that do not relate to, arise out
of or result from (A) ICorp's business and operations as conducted by
ICorp at any time prior to or on, or by IGL after, the date hereof or
(B) the ICorp Assets;
(ii) any and all Liabilities that relate to, arise out of or
result from the Excluded Assets;
(iii) the Fixed Income Liabilities; and
(iv) the Liabilities listed on Schedule 2.2(c)(iv).
2.3. Issuance of Membership Interests. In consideration for
the contribution by ICorp of the ICorp Assets to IGL, concurrently with the
execution of this Agreement, IGL is issuing to ICorp 169,236,283 Shares of
Common Stock (the "IGL Units"). Schedule A and Schedule B of the Operating
Agreement will be amended to reflect the issuance.
Article III
COVENANTS
3.1. Documents Relating to Other Transfers of Assets and
Assumption of Liabilities. In furtherance of the contribution, assignment,
transfer and conveyance of the ICorp Assets and the assumption of the ICorp
Liabilities set forth in Section 2.1 and Section 2.2, simultaneously with the
execution and delivery hereof or as promptly as practicable thereafter, (a)
ICorp shall execute and deliver such bills of sale, stock powers, certificates
of title, assignments of contracts and other instruments of transfer, conveyance
and assignment as and to the extent necessary to evidence the contribution,
transfer, conveyance and assignment of all of ICorp's right, title and interest
in and to the ICorp Assets to IGL and (b) IGL shall execute and deliver to ICorp
such bills of sale, stock powers, certificates of title, assumptions of
contracts and other instruments of assumption as and to the extent necessary to
evidence the valid and effective contribution and transfer of the ICorp Assets
and assumption of the ICorp Liabilities by IGL.
3.2. Further Assurances. (a) In addition to the actions
specifically provided for elsewhere in this Agreement, each of the Parties shall
use its reasonable best efforts from the date hereof to take, or cause to be
taken, all actions, and to do, or cause to be done, all things, reasonably
necessary, proper or advisable under applicable laws, regulations and agreements
to consummate and make effective the transactions contemplated by this
Agreement.
(b) Without limiting the foregoing on and after the date
hereof, each Party shall cooperate with the other Party, and without any further
consideration, to execute and deliver, or use its reasonable best efforts to
cause to be executed and delivered, all instruments, including instruments of
conveyance, assignment and transfer, and to make all filings with, and to obtain
all consents, approvals or authorizations of, any Authority or any other Person
(including,
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without limitation, all Self-Regulatory Organizations) under any permit,
license, agreement, indenture or other instrument (including any Consents or
Governmental Approvals), and to take all such other actions as such Party may
reasonably be requested to take by any other Party from time to time, consistent
with the terms of this Agreement in order to effectuate the provisions and
purposes of this Agreement and the transfer of the ICorp Assets and the
assignment and assumption of the ICorp Liabilities and the other transactions
contemplated hereby. Without limiting the foregoing, each Party will, at the
reasonable request of the other Party, take such other actions as may be
reasonably necessary to vest in such other Party good and marketable title to
the ICorp Assets if and to the extent it is practicable to do so.
3.3. Delayed Transfers. To the extent that any asset or
Liability that would otherwise be assigned to IGL on the date hereof pursuant to
Section 2.1(a) is not capable of being assigned without obtaining the consent or
waiver of any Authority or any other Person, which consent or waiver has not
been received on or prior to the date hereof, any such asset or Liability will
be assigned on the date the requisite consent or waiver is received. In the
event such consent or waiver is not received prior to the first anniversary of
this Agreement, such asset or Liability shall not be assigned hereunder and the
IGL Units previously issued by IGL pursuant to Section 2.3 shall be adjusted to
reflect such non-assignment (by canceling certain of such IGL Units or by IGL
issuing additional Shares of Common Stock to ICorp) on the basis of the value of
such asset or Liability on the date hereof. Any asset or Liability that is the
subject of this Section 3.3 shall be deemed an Excluded Asset or Excluded
Liability until actually assigned to IGL.
3.4. Post-Closing Adjustment. (a) The Parties acknowledge that
the IGL Units to be issued to ICorp are to represent a percentage of the
aggregate Shares of Common Stock of IGL outstanding on the date hereof following
the Subscription and the consummation of the transactions contemplated by this
Agreement equal to the percentage of the value of the Instinet Business
represented by the assets and liabilities contributed by Instinet to IGL (the
"Transferred Business"). The Parties further acknowledge that for the purposes
of the closing under this Agreement, the value of the Instinet Business has been
estimated based on the value of such business as of April 30, 2000. As soon as
practicable after the date hereof, and in any event no later than thirty (30)
days following the date hereof, IGL shall cause Xxxxxxxx Xxxxx Xxxxxx & Xxxxx
(or such other company agreed upon by both Parties) to prepare a valuation
summary (the "Report") setting forth the Concluded Value of the Instinet
Business on the date hereof (the "Aggregate IGL Concluded Value"). The Report
shall include, among other things, the percentage of the Aggregate IGL Concluded
Value represented by the Transferred Business.
(b) As soon as practicable following the delivery of the
Report, the IGL Units issued to ICorp hereunder shall be adjusted up or down
such that the IGL Units represent a percentage of the outstanding Shares of
Common Stock of the Company equal to the percentage that the value of the
Transferred Business on the date hereof represents of the Aggregate IGL
Concluded Value (the "Adjusted Units"). The number of IGL Units issued on the
date hereof pursuant to this Agreement shall be deemed to be the number of
Adjusted Units.
Article IV
INDEMNIFICATION
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4.1. Indemnification By IGL. IGL shall indemnify, defend and
hold harmless ICorp and its directors, officers and employees, and each of the
heirs, executors, successors and assigns of any of the foregoing, from and
against any and all Liabilities relating to, arising out of or resulting from
any of the following items (without duplication):
(a) the failure of IGL or any other Person to pay, perform or
otherwise promptly discharge any ICorp Liability in accordance with its terms,
whether prior to or after the date hereof; and
(b) the breach of any representation, warranty, covenant or
agreement by IGL contained in this Agreement (including any Exhibit or
Schedule).
4.2. Indemnification By ICorp. ICorp shall indemnify, defend
and hold harmless IGL and its directors, officers and employees, and each of the
heirs, executors, successors and assigns of any of the foregoing, from and
against any and all Liabilities relating to, arising out of or resulting from
any of the following items (without duplication):
(a) the failure of ICorp or any other Person to pay, perform
or otherwise promptly discharge any Excluded Liability in accordance with its
terms, whether prior to or after the date hereof; and
(b) the breach of any representation, warranty, covenant or
agreement by ICorp contained in this Agreement (including any Exhibit or
Schedule).
4.3. Consequential Damages. Except as provided in the
following sentence, in no event shall any indemnity pursuant to Section 4.1 or
Section 4.2 include any incidental, consequential, indirect, special or punitive
damages. However, any indemnity pursuant to Section 4.1 or Section 4.2 shall
include any such incidental, consequential, indirect, special or punitive
damages recovered by any third party pursuant to a claim against an Indemnified
Party (as defined below).
4.4. Defense of Claims. All rights of a Party to
indemnification under this Article IV shall be asserted and resolved as follows:
(a) Promptly after receipt by a Party entitled to
indemnification under Section 4.1 or Section 4.2 (an "Indemnified Party") of
notice of any pending or threatened claim, such Indemnified Party shall give
notice to the Party to whom the Indemnified Party is entitled to look for
indemnification (the "Indemnifying Party") of the commencement thereof; provided
that the failure so to notify the Indemnifying Party shall not relieve it of any
liability that it may have to the Indemnified Party hereunder, except to the
extent that the Indemnifying Party demonstrates that it is actually prejudiced
thereby.
(b) In case any claim shall be brought against an Indemnified
Party and it shall give notice to the Indemnifying Party of the commencement
thereof, the Indemnifying Party shall be entitled to participate therein and, if
it so desires, to assume the defense thereof with counsel reasonably
satisfactory to the Indemnified Party and, after notice from the Indemnifying
Party to the Indemnified Party of its election to assume the defense thereof,
except as provided below the Indemnifying Party shall not be liable to such
Indemnified Party under this Article IV
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for any fees of other counsel or any other expenses, in each case subsequently
incurred by such Indemnified Party in connection with the defense thereof, other
than reasonable costs of investigation. Notwithstanding an Indemnifying Party's
election to assume the defense of a claim, the Indemnified Party shall have the
right to employ separate counsel and to participate in the defense of such
claim, and the Indemnifying Party shall bear the reasonable fees, costs and
expenses of such separate counsel if (i) the use of counsel chosen by the
Indemnifying Party to represent the Indemnified Party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such claim include both the Indemnifying Party and the
Indemnified Party, and the Indemnified Party shall have reasonably concluded
that there may be legal defenses available to it which are different from or
additional to those available to the Indemnifying Party (in which case the
Indemnifying Party shall not have the right to assume the defense of such claim
on the Indemnified Party's behalf), (iii) the Indemnifying Party shall not have
employed counsel reasonably satisfactory to the Indemnified Party to represent
the Indemnified Party within a reasonable time after notice of the institution
of such claim, or (iv) the Indemnifying Party shall authorize the Indemnified
Party to employ separate counsel at the Indemnifying Party's expense. If an
Indemnifying Party assumes the defense of a claim, no compromise or settlement
thereof may be effected by the Indemnifying Party without the Indemnified
Party's written consent unless (i) there is no finding or admission of any
violation of law and no effect on any other claims that may be made against the
Indemnified Party and (ii) the sole relief provided is monetary damages that are
to be paid in full by the Indemnifying Party.
(c) In the event any Indemnified Party should have a claim
against any Indemnifying Party hereunder which does not involve a claim being
asserted by a third party, the Indemnified Party shall as promptly as is
practical notify the Indemnifying Party of such claim, describing such claim,
the amount thereof (if known) and the method of computation of the amount of the
claim, all with reasonable particularity. The failure to give any such notice
shall not relieve the Indemnifying Party of its obligations hereunder except to
the extent that such failure results in actual prejudice to the Indemnifying
Party. Upon the giving of such written notice as aforesaid, the Indemnified
Party shall have the right to commence legal proceedings for the enforcement of
its rights under Section 4.1 or Section 4.2.
4.5. Survival of Indemnities. The rights and obligations of
each the Parties under this Article IV shall survive the closing of the
transactions contemplated hereby and the sale or other transfer by any Party of
any assets or businesses or the assignment by it of any Liabilities.
Article V
MISCELLANEOUS
5.1. Counterparts; Entire Agreement; Corporate Power.
(a) This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each of
the Parties and delivered to the other Party.
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(b) This Agreement and the Exhibits and Schedules hereto
contain the entire agreement between the Parties with respect to the subject
matter hereof, supersede all previous agreements, negotiations, discussions,
writings, understandings, commitments and conversations with respect to such
subject matter and there are no agreements or understandings between the Parties
other than those set forth or referred to herein.
(c) Each of ICorp and IGL represents on behalf of itself as
follows:
(i) each such Person has the requisite corporate or other
power and authority and has taken all corporate or other action
necessary in order to execute, deliver and perform this Agreement and
to consummate the transactions contemplated hereby; and
(ii) this Agreement has been duly executed and delivered by it
and constitutes a valid and binding agreement of it enforceable in
accordance with the terms hereof.
5.2. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
IRRESPECTIVE OF THE CHOICE OF LAWS PRINCIPLES OF THE STATE OF NEW YORK, AS TO
ALL MATTERS, INCLUDING MATTERS OF VALIDITY, CONSTRUCTION, EFFECT,
ENFORCEABILITY, PERFORMANCE AND REMEDIES.
5.3. Submission to Jurisdiction. Each Party hereby irrevocably
agrees that any legal action or proceeding against it arising out of this
Agreement or the transactions contemplated hereby shall be brought only in the
Supreme Court of the State of New York in and for the County of New York or the
U.S. District Court for the Southern District of New York, preserving, however,
all rights of removal to a federal court under 28 U.S.C. Section 1441.
5.4. Assignability. This Agreement shall be binding upon and
inure to the benefit of the Parties hereto and their respective successors and
assigns; provided, however, that no Party hereto may assign its respective
rights or delegate its respective obligations under this Agreement without the
express prior written consent of the other Party hereto.
5.5. Third Party Beneficiaries. Except as provided in Section
5.4, the provisions of this Agreement are solely for the benefit of the Parties
and are not intended to confer upon any Person except the Parties any rights or
remedies hereunder. There are no third party beneficiaries of this Agreement and
this Agreement shall not provide any third person with any remedy, claim,
liability, reimbursement, claim of action or other right in excess of those
existing without reference to this Agreement.
5.6. Notices. Any and all notices or other communications
permitted or required to be delivered or given under this Agreement shall be in
writing and signed by the Party giving such notice or other communication and
shall be sent by telecopy or similar means of simultaneous transmission and
receipt or shall be delivered personally, or sent by registered or certified
mail, postage prepaid and addressed as follows:
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If to ICorp, to: Reuters C Corp.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
If to IGL, to: Instinet Group LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
In the case of personal delivery, the date of personal delivery or, in the case
of telecopy or similar means of simultaneous transmission and receipt, the date
of transmission or, in the case of mailing, the date of receipt, as the case may
be, shall be the date of the delivery or giving of such notice. Any Party may,
by notice to the other Party, change the address to which such notices are to be
given.
5.7. Severability. If any provision of this Agreement or the
application thereof to any Person or circumstance is determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provision to Persons or
circumstances or in jurisdictions other than those as to which it has been held
invalid or unenforceable, shall remain in full force and effect and shall in no
way be affected, impaired or invalidated thereby, so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner adverse to any Party. Upon such determination, the Parties shall
negotiate in good faith in an effort to agree upon such a suitable and equitable
provision to effect the original intent of the Parties.
5.8. Expenses. Except as provided in Article IV, each of the
Parties shall bear its own expenses in connection with this Agreement and the
transactions contemplated hereby.
5.9. Waivers of Default. Waiver by any Party of any default by
the other Party of any provision of this Agreement shall not be deemed a waiver
by the waiving Party of any subsequent or other default, nor shall it prejudice
the rights of the other Party.
5.10. Amendments. No provisions of this Agreement shall be
deemed waived, amended, supplemented or modified by any Party, unless such
waiver, amendment, supplement or modification is in writing and signed by the
authorized representative of the Party against whom it is sought to enforce such
waiver, amendment, supplement or modification.
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IN WITNESS WHEREOF, the Parties have caused this Asset
Contribution Agreement to be executed by their duly authorized representatives.
INSTINET CORPORATION
By:_____________________
Name:
Title:
INSTINET GROUP LLC
By:_____________________
Name:
Title:
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