EXHIBIT 99.5
BRACE ASSIGNMENT and SUPPORT
AGREEMENT
This BRACE Assignment and Support
Agreement (“Agreement”) is dated as of December 8,
2005, by and between Instinet Clearing Services, Inc.
(“ICS”), The Nasdaq Stock Market, Inc.
(“Nasdaq”), and INET ATS, Inc.
(“INET”).
WHEREAS, Instinet Group
Incorporated, Nasdaq and Norway Acquisition Corp.
(“Norway”) entered into that certain Agreement and Plan
of Merger dated as of April 22, 2005 (“Merger
Agreement”);
WHEREAS, pursuant to the Merger
Agreement, INET will become a subsidiary of Nasdaq as of the
Closing Date;
WHEREAS, Iceland Acquisition Corp.,
Norway and Nasdaq entered into that certain Transaction Agreement
dated as of April 22, 2005 (“Transaction
Agreement”), pursuant to which Nasdaq and Norway agreed to
sell to Iceland Acquisition Corp. all of the Newco Assets,
including ownership of ICS;
WHEREAS, ICS and INET have entered
into that certain Fully Disclosed Clearing Agreement dated as of
January 10, 2003, as amended as of the date hereof
(“Clearing Agreement”);
WHEREAS, ICS has developed and
currently uses a transaction processing system known as Beehive,
which includes the functionality set forth on Exhibit 1
(“Beehive”);
WHEREAS, certain INET personnel are
developing on behalf of ICS a transaction processing system
currently known as BRACE, which includes the functionality set
forth on Exhibit 2 (“BRACE”), and the parties desire
that such development and certain support of BRACE continue on the
terms set forth herein; and
WHEREAS, capitalized terms used but
not defined herein shall have the respective meanings ascribed to
them in the Transaction Agreement.
NOW, THEREFORE, in consideration of
the Transaction Agreement, the Clearing Agreement, the premises and
of the mutual covenants, representations, warranties and agreements
contained herein and therein, ICS, Nasdaq and INET agree as
follows:
1. Development
. Nasdaq agrees that it
will cause INET to continue to develop BRACE in accordance with the
specifications provided by ICS and attached hereto as Exhibit 3.
Such development shall be deemed complete, and Nasdaq and INET
shall have no further development obligations, as of the date that
BRACE has been used in production by INET and ICS to submit, in the
aggregate, one million trades to the National Securities Clearing
Corporation (“Production”). INET acknowledges that the
goal of the parties is to reach Production within four
(4) months after Closing.
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2. Delivery
. Within three (3) business
days after Production, INET shall deliver to ICS a master copy of
the BRACE software in source code form.
3. Support
. INET agrees that it will provide
to ICS certain support services for BRACE, which support services
are set forth on Exhibit 4, for four (4) months following
Production.
4. Assignment of Intellectual
Property Interest by INET . INET hereby assigns to ICS a one-half undivided
interest in all intellectual property rights in and to BRACE as the
same now exists and as developed, modified and supplemented by INET
in accordance with Exhibit 3. For the sake of clarity, neither
party shall receive any interest hereunder in or to any
developments, modifications or supplements to BRACE developed by or
on behalf of the other party following Production. Neither party
shall have any duty to account to the other for the exploitation of
its interest in and to BRACE.
5. Assignment of Intellectual
Property Interest by ICS . ICS hereby assigns to INET a one-half undivided
interest in all intellectual property rights in and to Beehive as
the same exists as of Closing. For the sake of clarity, neither
party shall receive any interest hereunder in or to any
developments, modifications or supplements to Beehive developed by
or on behalf of the other party following Closing. Neither party
shall have any duty to account to the other for the exploitation of
its interest in and to Beehive.
6. Development
Incentive . Within
ten (10) business days after Production, ICS shall pay to INET
(i) the applicable aggregate amount payable to the employees
set forth on Exhibit 5 and (ii) an amount equal to all Taxes
payable by INET and Nasdaq with respect to the payments
contemplated by this Section 6, such that INET and Nasdaq are
not liable for any Taxes arising out of INET’s fulfillment of
the obligations set forth in this Section 6. INET shall
distribute such amounts in accordance with Exhibit 5, provided
that, if any INET employee set forth on Exhibit 5 is no
longe
