EXHIBIT 99.4
CO-LOCATION
AGREEMENT
This Co-location Agreement
(“Agreement”), dated as of December 8, 2005, by
and between Instinet Holdings Incorporated f/k/a Iceland
Acquisition Corp., a Delaware corporation (“Newco”),
Norway Acquisition Corp. f/k/a Instinet Group Incorporated, a
Delaware corporation (“Company”) and The Nasdaq Stock
Market, Inc., a Delaware corporation
(“Parent”).
WHEREAS, Company entered into that
certain Agreement and Plan of Merger, dated as of April 22,
2005, by and among Instinet Group Incorporated, a Delaware
corporation (“Iceland”), Parent and Company, pursuant
to which, among other things, Company merged with and into Iceland
(the “Merger”);
WHEREAS, concurrently therewith,
Newco, Company and Parent entered into that certain Transaction
Agreement dated as of April 22, 2005 (the “Transaction
Agreement”), pursuant to which Parent and Company agreed to
sell to Newco all of the Newco Assets;
WHEREAS, the Transaction Agreement
provides that Newco and Company shall enter into certain Ancillary
Agreements, including this Agreement; and
WHEREAS, pursuant to the Transaction
Agreement and in order to ensure an orderly transition of Company
following the Merger and sale of the Newco Assets, Newco and
Company are entering into this Agreement, pursuant to which Newco
will provide or cause to be provided certain co-location services
to Company and its Subsidiaries following the Closing
Date.
NOW, THEREFORE, in consideration of
the Transaction Agreement, the premises and of the mutual
covenants, representations, warranties and agreements contained
herein and therein, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.01 Capitalized terms
used but not defined herein shall have the respective meanings
ascribed to them in the Transaction Agreement.
ARTICLE II
LICENSE
Section 2.01 Co-Location
Space Use
(a) Co-Location Services .
From and after the Closing Date, on the terms and subject to the
conditions contained herein and the obtaining by Newco of any
necessary consents, Company and its Subsidiaries (collectively,
“Services Recipients”) may use,
within the existing data center space designated
on Exhibit A (the “Licensed Space”), up to that amount
of segregated space and consume up to that amount of power
resources designated on Exhibit A for the purpose of hosting
computer and communication equipment of Services Recipients and
their customers. The Newco resources required to support Services
Recipients use of Licensed Space shall be consistent with the
resources and intensity of use of those resources provided Services
Recipients’ predecessor in the six months before the
effective date of the Transaction Agreement (except to the extent
any reduction to such resources is not, individually or in the
aggregate with all reductions to any services, materially adverse
to the conduct of Services Recipients’ business or Services
Recipients’ relationship with any customer, and
provided such reduction is consistent with a reduction in
such resources with respect to Newco’s business).
(b) Common Area Access . From
and after the Closing Date, on the terms and subject to the
conditions contained herein and the obtaining by Newco of any
necessary consents, Services Recipients may enter and use the
common areas of the Harborside Financial Center Data Center (the
“Building”), including general parking areas
(designated for employees), common entrances, common elevators and
common bathrooms, in a manner consistent with the access to such
common areas Services Recipients predecessor had and the intensity
of their use of such common areas before the Closing (except to the
extent any reduction to such access is not, individually or in the
aggregate with all reductions to any services, materially adverse
to the conduct of Services Recipients’ business or Services
Recipients’ relationship with any customer, and
provided that such reduction is consistent with a reduction
in such access with respect to Newco’s business), and subject
to such reasonable rules and regulations as exist in connection
with such areas as of the Closing Date and any restrictions imposed
by the owner or operator of the Building.
(c) Customer Co-location .
From and after the Closing Date, on the terms and subject to the
conditions contained herein and the obtaining by Newco of any
necessary consents, Services Recipients are permitted to allow
their customers to co-locate with the Licensed Space or common
areas provided that (i) such co-location is consistent
with any restrictions imposed by the owner or operator of the
Building; (ii) with each new co-located customer following the
Closing, Services Recipients shall enter into a written agreement
that incorporates the conditions and restrictions set forth herein
with respect to use of the Licensed Space; and (iii) any
amendment to any Existing Co-Location Agreement (as defined below)
shall incorporate the conditions and restrictions set forth herein
with respect to use of the Licensed Space.
(d) Telecommunications . At
the request of the Services Recipients and subject to obtaining any
necessary consents, Newco will take necessary steps, at
Company’s cost and expense, to transfer telecommunications
contracts for lease lines relating solely to the Services
Recipients’ business and will take reasonable steps to allow
the Services Recipients to continue to use shared circuits if
needed to conduct business in a pre-Closing manner with Services
Recipients bearing half the costs of any such shared
circuits.
Section 2.02 Services .
In addition, Newco shall provide from time to time upon the request
of Services Recipients the support services set forth in Exhibit A
(the “Support Services” and, together with the
provision of the Licensed Space, the “Services”). The
Support
2
Services will be provided in all respects with
the same frequency, performance capability, functionality, capacity
and accuracy as such services were provided by Iceland during the
six (6) month period prior to the Closing (except to the
extent any reduction in the frequency, performance capability,
functionality, capacity and accuracy of such services is not,
individually or in the aggregate with all reductions to any
services, materially adverse to the conduct of Services
Recipients’ business or Services Recipients’
relationship with any customer, and provided that such
reduction is consistent with a reduction in the frequency,
performance capability, functionality, capacity and accuracy of
such services with respect to Newco’s business),
provided that the Services shall be provided at all times
(a) to Services Recipients in accordance with applicable law;
and (b) to Services Recipients’ co-located customers
that are parties to a co-location agreement set forth on Exhibit B
(collectively, the “Existing Co-location Agreements”),
in accordance with the terms of the respective Existing Co-location
Agreement.
Section 2.03 Equipment
Installation and Removal . Prior to the end of the Term,
Services Recipients shall remove from the Licensed Space all of
their property and the property of their customers, and shall
repair any damage to the Licensed Space or the Building resulting
from the installation, use or removal of such property.
Section 2.04 Condition of
Licensed Space . Services Recipients hereby acknowledge that
they have inspected the Licensed Space and agree to accept same in
its “as is” condition as of the Closing Date,
provided that Newco agrees to maintain the Licensed Space in
such condition for the Term. Company further acknowledges and
agrees that the Services Recipients, co-located customers and their
employees and other representatives shall use due care in their use
of the Licensed Space and any common areas, the fixtures and other
existing structures in such locations.
Section 2.05 Alterations
. Services Recipients, at their expense, shall have the right to
make installations, repairs, alterations, improvements, changes,
decorations or additions in or to the Licensed Space,
provided that Services Recipients will not make any
alterations that (i) are structural in nature;
(ii) affect the exterior of any structural portions or
components of the Building; or (iii) negatively affect Newco,
any of its co-located customers, or any equipment of Newco or its
co-located customers.
Section 2.06 TCP/IP
Addresses . Upon termination or expiration of this Agreement
for any reason, Newco, at the cost and expense of Services
Recipients, shall take all steps and execute all documents to
transfer all registered TCP/IP addresses used by Services
Recipients or their customers to the Company or its
designee(s).
Section 2.07 Service
Coordinators; Dispute Resolution
(a) Newco and Company shall each
nominate a representative to act as the primary contact person with
respect to the performance of the Services (each, a “Service
Coordinator”). Unless otherwise agreed by the parties, all
communications relating to this Agreement and to the Services
provided hereunder shall be directed to the Service Coordinators.
The initial Service Coordinators for