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EXHIBIT 2.8
CONTRIBUTION AND ASSUMPTION AGREEMENT, dated as of November
24, 2003, by and between Instinet
Corporation, a Delaware corporation ("ICorp"),
and Instinet Group, LLC, a Delaware limited
liability company ("IGLLC").
WHEREAS, Instinet Group Incorporated, a Delaware corporation
("Instinet"), ICorp, IGLLC and certain
other direct and indirect subsidiaries of
Instinet are engaging in an internal
restructuring (the "Restructuring")
pursuant to resolutions of the Board of
Directors of Instinet dated October 7,
2003;
WHEREAS, IGLLC is a wholly-owned subsidiary of ICorp;
WHEREAS, as part of the Restructuring, ICorp desires to
contribute to IGLLC as a contribution to
capital, and IGLLC desires to acquire
from ICorp, the assets listed on Schedule 1
hereto (the "Transferred Assets");
WHEREAS, in connection with the acquisition of the Transferred
Assets, ICorp also desires to transfer to
IGLLC, and IGLLC desires to accept,
the employment of the employees listed on
Schedule 2 (the "Transferred
Employees") to IGLLC;
NOW, THEREFORE, in consideration of the foregoing and the
respective premises, mutual covenants and
agreements of ICorp and IGLLC, and
other good and valuable consideration, the
receipt and sufficiency of which are
hereby acknowledged, and subject to the
terms and conditions hereof, ICorp and
IGLLC 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.
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"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 12:35 AM EST, December 1, 2003.
"ICorp" has the meaning set forth in the preamble.
"IGLLC" 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 and
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:
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(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) ICorp shall hereby
contribute, assign, transfer, convey
and deliver to IGLLC on an as-is, where-is
basis, and, in consideration for the
foregoing, IGLLC shall hereby accept from
ICorp, all of ICorp's right, title and
interest in and to the Transferred Assets,
and (b) IGLLC 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, ICorp
shall hereby transfer to IGLLC, and IGLLC
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
IGLLC 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
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 Liabilities as set forth
in Section 2.1, as of the Effective Time,
(a) ICorp shall execute and deliver
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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 ICorp's right, title and interest in
and to the Transferred Assets to
IGLLC and the transfer of employment of the
Transferred Employees, and (b) IGLLC
shall execute and deliver to ICorp 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, IGLLC.
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
