<PAGE>
EXHIBIT 2.11
CONTRIBUTION AND
ASSUMPTION AGREEMENT, dated as of November 24, 2003, by
and between Instinet Group Incorporated, a
Delaware corporation ("IGI"), and
Instinet, LLC, a Delaware limited liability
company ("ILLC").
WHEREAS, IGI and
certain other direct and indirect subsidiaries of IGI are
engaging in an internal restructuring (the
"Restructuring") pursuant to
resolutions of the Board of Directors of
IGI dated October 7, 2003;
WHEREAS, ILLC is
a wholly-owned subsidiary of IGI;
WHEREAS, as part
of the Restructuring, IGI desires to contribute to ILLC as
a contribution to capital, and ILLC desires
to acquire from IGI, the assets
listed on Schedule 1 hereto (the
"Transferred Assets");
WHEREAS, in
connection with the acquisition of the Transferred Assets, IGI
also desires to transfer to ILLC, and ILLC
desires to accept, the employment of
the employees listed on Schedule 2 (the
"Transferred Employees") to ILLC;
NOW, THEREFORE,
in consideration of the foregoing and the respective
premises, mutual covenants and agreements
of IGI and ILLC, and other good and
valuable consideration, the receipt and
sufficiency of which are hereby
acknowledged, and subject to the terms and
conditions hereof, IGI and ILLC 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.
"Agreement" means this
Contribution and Assumption Agreement, including all
of the Schedules hereto.
"Assumed
Liabilities" has the meaning set forth in Section 2.3.
"Authority"
means any governmental, judicial, legislative, executive,
administrative, or regulatory authority of
the United States, or of any state,
local or foreign 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.
<PAGE>
"Consents" means
any consents, waivers, approvals or authorizations from,
or notification requirements to, any third
parties or any Authority or any
reports or other filings to be made to, or
registrations or permits or
authorizations to be obtained from, any
Authority.
"Effective Time"
means 1:26 AM EST, December 1, 2003.
"IGI" has the
meaning set forth in the preamble.
"ILLC" has the
meaning set forth in the preamble.
"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" has
the meaning set forth in the recitals.
"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.
"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.
"Restructuring"
has the meaning set forth in the recitals.
"Self Regulatory
Organization" has the meaning set forth in section
3(a)(26) of the Securities Exchange Act of
1934, and the rules and regulations
promulgated thereunder, as amended.
"Transferred
Assets" has the meaning set forth in the recitals.
"Transferred
Employees" has the meaning set forth in the recitals.
1.2.
Interpretation. In this Agreement and in the Schedules hereto:
-2-
<PAGE>
(a) unless
otherwise specified, references to Articles, Sections, clauses
and Schedules are references to Articles,
Sections and clauses of, and Schedules
to, this Agreement;
(b) the headings
in this Agreement are for reference only and shall not
control or affect the meaning or
construction of any of the provisions hereof;
(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; and
(d) references
to any party to this Agreement or any other document or
agreement shall include its successors and
permitted assigns.
ARTICLE II
TRANSFER OF ASSETS AND ASSUMPTION OF LIABILITIES
2.1. Transfer of
Assets and Assumption of Liabilities. 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, as of the
Effective Time, (a) IGI shall hereby
contribute, assign, transfer, convey and
deliver to ILLC on an as-is, where-is
basis, and ILLC shall hereby accept from
IGI, all of IGI's right, title and interest
in and to the Transferred Assets,
and (b) ILLC shall hereby assume and agree
faithfully to perform and fulfill all
the Assumed Liabilities in accordance with
their respective terms.
2.2 Transfer of
Employees. As of the Effective Time, IGI shall hereby
transfer to ILLC, and ILLC shall hereby
accept, the employment of the
Transferred Employees. For the avoidance of
doubt, the transfer of employment of
the Transferred Employees shall not
constitute a termination of employment for
purposes of any compensation or benefit
plan, program, policy, agreement or
other arrangement and, after the Effective
Time, subject to the terms of any
agreement between any Transferred Employee,
on the one hand, and ILLC and its
affiliates, on the other hand, the
employment of any such Transferred Employees
shall be at-will and terminable at any time
for any or no reason whatsoever.
2.3. Assumed
Liabilities. "Assumed Liabilities" shall mean all of the
Liabilities relating to or arising out of
the Transferred Assets and Transferred
Employees and business activity related to
such Transferred Assets and
Transferred Employees, from and after the
Effective Time.
ARTICLE III
COVENANTS
3.1. Documents
Relating to Transfers of Assets and Assumption of
Liabilities. In furtherance of the
contribution, assignment, transfer and
conveyance of the Transferred Assets, the
transfer of employment of the
Transferred Employees and the assumption of
the Assumed
-3-
<PAGE>
Liabilities as set forth in Sections 2.1
and 2.2, as of the Effective Time, (a)
IGI shall execute and deliver such bills of
sale, 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 IGI's right, title and interest in
and to the Transferred Assets to ILLC, and
the transfer of employment of the
Transferred Employees, and (b) ILLC shall
execute and deliver to IGI such bills
of sale, certificates of title, assumptions
of contracts and other instruments
of assumption as and to the extent
necessary to evidence the valid and effective
contribution, transfer, conveyance and
assignment of the Transferred Assets and
the transfer of employment of the
Transferred Employees to, and assumption of
the Assumed Liabilities by, ILLC.
3.2. Further
Assurances. (a) In addition to the actions specifically
provided for elsewhere in this Agreement,
each party 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
in
