Exhibit 10.13


 


Datafeed License Agreement


 


October 27, 2003


 


 


CONFIDENTIAL TREATMENT REQUESTED


 


CONFIDENTIAL TREATMENT
REQUESTED: INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS
OMITTED AND IS NOTED WITH THREE ASTERICKS AS FOLLOWS ***. AN UNREDACTED VERSION
OF THIS DOCUMENT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.


 

















 


Table
of Contents


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.

  	
   

  	
  Definitions

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION
  2.

  	
   

  	
  Implementation and Operation of the
  Consolidated Datafeed

  	
   

  	
  3

  
	
  2.1.

  	
   

  	
  Deadline

  	
   

  	
  3

  
	
  2.2.

  	
   

  	
  Expenses;
  Availability

  	
   

  	
  4

  
	
  2.3.

  	
   

  	
  Access

  	
   

  	
  4

  
	
  2.4.

  	
   

  	
  Distribution Guidelines

  	
   

  	
  4

  
	
  .5.

  	
   

  	
  Updates

  	
   

  	
  4

  
	
  2.6.

  	
   

  	
  New
  Components

  	
   

  	
  4

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION
  3.

  	
   

  	
  License

  	
   

  	
  5

  
	
  3.1.

  	
   

  	
  License Grant of Consolidated Datafeed

  	
   

  	
  5

  
	
  3.2.

  	
   

  	
  Sublicenses

  	
   

  	
  5

  
	
  3.3.

  	
   

  	
  License Grant of Enhanced Components

  	
   

  	
  5

  
	
  3.4.

  	
   

  	
  Scope
  of License

  	
   

  	
  5

  
	
  3.5.

  	
   

  	
  Creation
  of Reports

  	
   

  	
  5

  
	
  3.6.

  	
   

  	
  Termination
  of Existing License

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION
  4.

  	
   

  	
  Support
  Services

  	
   

  	
  6

  
	
  4.1.

  	
   

  	
  Service
  Agreement

  	
   

  	
  6

  
	
  4.2.

  	
   

  	
  Additional Support Services

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION
  5.

  	
   

  	
  Ownership
  of Intellectual Property

  	
   

  	
  6

  
	
  5.1.

  	
   

  	
  Ownership
  of Consolidated Datafeed

  	
   

  	
  6

  
	
  5.2.

  	
   

  	
  Ownership
  of Enhanced Components

  	
   

  	
  7

  
	
  5.3.

  	
   

  	
  ISS
  Proprietary Information

  	
   

  	
  7

  
	
  5.4.

  	
   

  	
  ADP
  Proprietary Information

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
   

  	
  Fees

  	
   

  	
  8

  
	
  6.1.

  	
   

  	
  Vote Instruction Fee

  	
   

  	
  8

  
	
  6.2.

  	
   

  	
  Services
  Fee

  	
   

  	
  8

  
	
  6.3.

  	
   

  	
  Minimum Monthly Ballot Requests Fee

  	
   

  	
  8

  
	
  6.4.

  	
   

  	
  Failure to Pay and Overdue Payments

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION
  7.

  	
   

  	
  Representations, Warranties and Covenants

  	
   

  	
  9

  
	
  7 .1.

  	
   

  	
  ISS Representations

  	
   

  	
  9

  
	
  7.2.

  	
   

  	
  ADP Representations

  	
   

  	
  9

  
	
  7.3

  	
   

  	
  ADP
  Covenants

  	
   

  	
  10

  
	
  7.4.

  	
   

  	
  ISS Covenants

  	
   

  	
  11

  
	
  7.5.

  	
   

  	
  Disclaimer
  of Warranties

  	
   

  	
  12

  



 


 


i

















 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION
  8.

  	
   

  	
  Pricing Adjustment

  	
   

  	
  12

  
	
  8.1.

  	
   

  	
  ***

  	
   

  	
  12

  
	
  8.2.

  	
   

  	
  ***

  	
   

  	
  12

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION
  9.

  	
   

  	
  Limitation
  of Liability

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION
  10.

  	
   

  	
  Indemnification

  	
   

  	
  13

  
	
  10.1.

  	
   

  	
  ISS
  Indemnity

  	
   

  	
  13

  
	
  10.2.

  	
   

  	
  ADP
  Indemnity

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION
  11.

  	
   

  	
  Confidentiality

  	
   

  	
  14

  
	
  11.1

  	
   

  	
  Confidential Information

  	
   

  	
  14

  
	
  11.2

  	
   

  	
  Use
  of Confidential Information

  	
   

  	
  14

  
	
  11.3

  	
   

  	
  Unauthorized Use

  	
   

  	
  15

  
	
  11.4

  	
   

  	
  Return
  of Information

  	
   

  	
  15

  
	
  11.5

  	
   

  	
  Tax
  Treatment

  	
   

  	
  15

  
	
  11.6

  	
   

  	
  Injunctions

  	
   

  	
  15

  
	
  11.7

  	
   

  	
  Existing
  Non Disclosure Agreement

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION
  12.

  	
   

  	
  Term
  and Termination

  	
   

  	
  15

  
	
  12.1.

  	
   

  	
  Term

  	
   

  	
  15

  
	
  12.2.

  	
   

  	
  Termination

  	
   

  	
  16

  
	
  12.3.

  	
   

  	
  Effect
  of Termination

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION
  13.

  	
   

  	
  Publicity; Notice

  	
   

  	
  17

  
	
  13.1.

  	
   

  	
  Notice
  of ADP System

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION
  14.

  	
   

  	
  Miscellaneous

  	
   

  	
  17

  
	
  14.1.

  	
   

  	
  Governing Law

  	
   

  	
  17

  
	
  14.2.

  	
   

  	
  Consent to Jurisdiction

  	
   

  	
  18

  
	
  14.3.

  	
   

  	
  Waiver
  of a Jury Trial

  	
   

  	
  18

  
	
  14.4.

  	
   

  	
  Relationship

  	
   

  	
  18

  
	
  14.5.

  	
   

  	
  No
  Promotion

  	
   

  	
  18

  
	
  14.6.

  	
   

  	
  Notices

  	
   

  	
  18

  
	
  14.7.

  	
   

  	
  Entire
  Agreement

  	
   

  	
  19

  
	
  14.8.

  	
   

  	
  Severability

  	
   

  	
  19

  
	
  14.9.

  	
   

  	
  Further
  Assurances

  	
   

  	
  19

  
	
  14.10.

  	
   

  	
  Force
  Majeure

  	
   

  	
  19

  
	
  14.11.

  	
   

  	
  Advertising and Publicity

  	
   

  	
  20

  
	
  14.12.

  	
   

  	
  Amendments; Waivers

  	
   

  	
  20

  
	
  14.13.

  	
   

  	
  Assignment

  	
   

  	
  20

  
	
  14.14.

  	
   

  	
  Successors;
  Assigns; Third-Party Beneficiaries

  	
   

  	
  20

  



 


ii

















 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14.15.

  	
   

  	
  Survival

  	
   

  	
   

  
	
  14.16.

  	
   

  	
  Counterparts

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  	
  20

  
	
  Exhibits, Appendices and Annexes

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  I.

  	
   

  	
  Exhibit
  A

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  II.

  	
   

  	
  Annex
  I

  	
   

  	
   

  
	
   

  	
   

  	
  A                                      Appendix I

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  B                                        Appendix II

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  III.

  	
   

  	
  Annex
  II

  	
   

  	
   

  



 


 


iii

















EXECUTION COPY


 


DATAFEED
LICENSE AGREEMENT


 


This
Datafeed License Agreement (this “Agreement”), entered into on the 27th
day of October, 2003 (“Effective Date”), sets forth the understanding between
ADP Investor Communication Services, Inc., a Delaware corporation (“ADP”), and
Institutional Shareholder Services, Inc., a Delaware corporation (“ISS”),
concerning the implementation and operation of the Consolidated Datafeed to
facilitate straight-through processing of Ballots and Vote Instructions.


 


WHEREAS,
ADP owns a Datafeed which ISS wishes to license in connection with the
management and tracking of proxy votes by ISS, and ADP wishes to so license the
Consolidated Datafeed to ISS for such purposes;


 


NOW,
THEREFORE, be it resolved that, in consideration of the mutual covenants and
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties to this
Agreement hereby agree as follows:


 


SECTION 1.                               Definitions


 


As used herein, the
following terms have the following meanings:


 


“ADP” has the meaning set
forth in the Preamble hereto.


 


“ADP Proprietary Information”
has the meaning set forth in Section 5.4(a).


 


“Affiliate”
means, with respect to any Person, (a) any Person directly or indirectly
controlling, controlled by or under common control with such Person and (b) any
executive officer or director of such Person. For purposes of this definition,
the terms “controlling,” “controlled by,” or “under common control with” shall
mean possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.


 


“Agreement”
has the meaning set forth in the preamble hereto. Agreement, as used herein,
shall include all Exhibits, Annexes, Schedules and Appendices attached hereto.


 


“Applicable
Law” means, as to any Person, any statute, law, rule, regulation, directive,
treaty, judgment, order, decree or injunction of any Governmental Authority
that is applicable to or binding upon such Person or any of its properties.


 


“Ballot” means any voteable
position identified by ADP to be sent to ISS by any means.


 


“Business Day” means a day
other than a Saturday, Sunday or other day on which banks in the State of New
York are not required or authorized to close


 


“Confidential Information”
has the meaning set forth in Section 11.2.


 

















 


“Consolidated Datafeed”
means the specific data exchanges of the consolidated agenda file, consolidated
meeting file, consolidated director file, consolidated ballot file datafeed and
the returned ballot confirmation file and vote instruction files for accounts
of institutions for which ISS has voting authority.


 


“Datafeed Vote Instruction
Fee“ has the meaning set forth in Section 6.1.


 


“Disclosing Party” has the
meaning set forth in Section 11.1.


 


“Downtime”
means those periods of time during which the Consolidated Datafeed is not
available to ISS for purposes of processing meeting, agenda and Ballot
information, but not including Scheduled Maintenance and Unscheduled
Maintenance.


 


“Effective
Date” means the date of this Agreement. 


 


“Enhanced
Components” has the meaning set forth in Section 3.3.


 


“Extended
Third-Party Agreement” has the meaning set forth in Section 8.3.


 


“File Transfer” means a file
transfer that is encrypted using the SCP (secure copy) over SSH (secure shell)
open standards based protocol or its equivalent as mutually agreed to by ADP
and ISS


 


“Governmental
Authority” means any domestic or foreign government, governmental authority,
court, tribunal, agency or other regulatory, administrative or judicial agency,
commission or organization, and any subdivision, branch or department of any of
the foregoing.


 


“Initial
Term” has the meaning set forth in Section 12.1. 


 


“ISS”
has the meaning set forth in the Preamble hereto.


 


“ISS
Agenda Codes” has the meaning set forth in the Statement of Work.


 


“ISS
Business” has the meaning set forth in Section 3.1.


 


“ISS
Proprietary Information” has the  meaning set forth in Section 5.3(a).


 


“ISS
Vote Instructions” has the meaning set forth in the Statement of Work.


 


“Live
Date” has the meaning set forth in Section 2.1.


 


“Material
Adverse Effect” means a material adverse effect on the business, financial
condition, assets or results of
operations of a party.


 


“Minimum Monthly Ballot
Requests Fee” has the meaning set forth in Section 6.3.


 


“Monthly Fee Ballot
Percentage” has the meaning set forth in Section 6.3.


 


2

















 


“Nominees” has the meaning
set forth in Section 12.2(e).


 


“Person”
means any natural person, corporation, partnership, limited liability company,
trust or any other legal entity.


 


“Proxy
Edge License Agreement” has the meaning set forth in Section 3.6.


 


“Receiving
Party” has the meaning set forth in Section 11.1.


 


“Revised
Term” has the meaning set forth in Section 8.2.


 


“Scheduled
Maintenance” means those periods of time, during which ADP performs maintenance
to or repairs all or part of the Consolidated Datafeed. Any Scheduled
Maintenance shall occur between 11:00 a.m. and 4:00 p.m. E.S.T. on Saturday or
Sunday, and is subject to prior e-mail notification to ISS, at least two weeks
in advance of the Scheduled Maintenance.


 


“Service
Agreement” has the meaning set forth in Section 4.1. 


 


“Services”
has the meaning set forth in Section 4.2.


 


“Statement
of Work” has the meaning set forth in Section 2.1.


 


“Support
Services” has the meaning set forth in Section 4.1.


 


“Term”
has the meaning set forth in Section 12.1.


 


“Third-Party
Agreement” has the meaning set forth in Section 8.1.


 


“Third-Party
Favorable Terms” has the meaning set forth in Section 8.2.


 


‘Transition
Period” has the meaning set forth in Section 12.3.


 


“Unsanctioned
Method or Unsanctioned Form” means any method or form of Vote Instruction
transmitted electronically by ISS other than through such method or form
prescribed by ADP in the instructions published
and available for review by a user upon accessing the applicable electronic form or method
in question.


 


“Unscheduled Maintenance” means those periods
of time, aside from Scheduled Maintenance
periods, during which ADP performs maintenance to or repairs all or part of the
Consolidated Datafeed.


 


“Vote
Instruction” means any instruction given by a beneficial owner of a security
that directs a Person with legal authority to vote such security and which is
transmitted to ADP.


 


SECTION
2.                     Implementation and Operation of the
Consolidated Datafeed.


 


2.1.                                  Deadline. The parties shall implement and operate the Consolidated Datafeed pursuant to the statement of work attached hereto as Exhibit A, which shall include a


 


3

















 


detailed migration plan (the
“Statement of Work”). The completion of the Consolidated Datafeed migration and
implementation shall be deemed to have occurred when the Consolidated Datafeed
is fully operational, which shall be no later than January 8, 2004 (the “Live
Date”); provided, however, that in the event any of the migration milestones
set forth in the Statement of Work have not been met, the deadline for
implementation of the Consolidated Datafeed shall be extended by the parties to
a date to be mutually agreed upon in good faith (the date upon which the
Consolidated Datafeed is fully operational shall be deemed to be the Live
Date). The obligations of ISS and ADP with respect to implementation are set
forth in this Section 2 and the Statement of Work. Notwithstanding the
foregoing, either party may terminate this Agreement in the event that the
Consolidated Datafeed is not fully operational by September 1, 2004.


 


2.2.                                 Expenses; Availability. ADP shall, at its expense, provide the
Consolidated Datafeed to ISS in the ADP standard format and as described in the
related documentation. ADP shall provide ISS in a timely manner related
documentation, which will include a data dictionary describing each data field
(with mandatory or optional designations and acceptable values for the data
fields) and sample files. The Consolidated Datafeed will be delivered in the
manner set forth in the Statement of Work, or as otherwise agreed between both
parties. ADP shall ensure that the Consolidated Datafeed is available to ISS at
all times, other than during Scheduled Maintenance, Unscheduled Maintenance or
emergency maintenance as set forth in the Statement of Work.


 


2.3.                                 Access. ISS may access the Consolidated Datafeed from any ISS personal
computer, local area network or other central processing unit located at any
ISS facility. ISS shall provide at its own expense all communications
equipment, including telephone lines and modems, usage or connect charges,
necessary for access to the Consolidated Datafeed.


 


2.4.                                 Distribution Guidelines. ADP will be responsible for the accuracy,
completeness, and timely availability of meeting notice, ballots and agenda
data on the Consolidated Datafeed that are generated, in keeping with ADP’s
normal standards for delivery of such information.


 


2.5.                                 Updates. During the Term, ADP may from time to time update, enhance or modify
the Consolidated Datafeed. ADP shall provide ISS with the most current,
up-to-date version of the Consolidated Datafeed, including, without limitation,
the most current version of the Consolidated Datafeed, reflecting any updates,
enhancements or modifications as may be required by applicable law or
Securities and Exchange Commission rules or regulations, at such time as the
new version is released. Any such updates to the Consolidated Datafeed shall be
no additional charge. The parties acknowledge that from time to time the
Consolidated Datafeed may require certain mutually agreed upon modifications to
properly interface with each of the parties’ servers. Upon ISS’s request, ADP
shall perform necessary modifications to the Consolidated Datafeed so that it
will continue to interface properly with the ISS server.


 


2.6.                                 New Components. If, during the Term, ADP develops new
components or functionality for the Consolidated Datafeed, then the new
components or functionality shall be offered to ISS at an additional fee to be
mutually agreed upon. ISS may, at its option, accept or reject the inclusion of
each new component or functionality in the Consolidated Datafeed. Upon the acceptance
of each new component or functionality by ISS, such new component or


 


4

















 


functionality
will be automatically included in the license granted to ISS hereunder and ADP
shall support the new component or functionality on terms and conditions
mutually acceptable to both parties. If ISS accepts a new component or
functionality that requires customization for integration into the Consolidated
Datafeed, both parties shall use commercially reasonable efforts to enter into
a statement of work to integrate such new component or functionality. Upon
execution by the parties, each such statement of work shall constitute an
amendment to this Agreement. If at any time during the Term ISS elects not to
use any new component or functionality, then included in the Consolidated
Datafeed, then ISS shall, at its sole expense and within 60 days of the
implementation of such new component or functionality, do whatever is necessary
to adapt to any format changes that may be required to allow ISS to continue to
use the Consolidated Datafeed as contemplated by this Agreement.


 


SECTION
3.                           License.


 


3.1.                                 License Grant of Consolidated Datafeed. During the Term, ADP hereby grants to ISS a
non-exclusive, worldwide license to use, possess, display and otherwise process
and handle the Consolidated Datafeed in all electronic forms and media in
connection with ISS’s voting agent services solely and exclusively for the
purposes of processing meeting, agenda and ballot information of custodians using
ADP as their proxy processing agent for accounts for which ISS has voting
authority and generating, distributing and returning ISS Vote Instructions for
positions held with such custodians. Except for the license granted herein, ISS
shall have no other rights to the Consolidated Datafeed or the information
provided by ADP.


 


3.2.                                 Sublicenses. During the Term, ISS shall have the right to sublicense (including,
without limitation, the right to further sublicense) to any Affiliate the
rights licensed to ISS in Section 3.1 License Grant of Consolidated Datafeed
exclusively, provided that each sublicensee agrees in writing to be bound by
the terms of this Agreement.


 


3.3                                    License Grant of Enhanced Components. During the Term, ISS hereby grants to ADP a
royalty-free worldwide license to use, possess, reproduce, modify, display,
distribute and otherwise process and handle ISS Vote Instructions and ISS
Agenda Codes (collectively, “Enhanced Components”) solely for the purpose of
providing the Consolidated Datafeed to ISS pursuant to the terms of this
Agreement. ADP shall not use the Enhanced Components in any fashion that would
reveal, disclose or identify any information (which was not otherwise previously known or acquired by ADP
through lawful means) about ISS clients or their voting histories or
instructions.


 


3.4.                                 Scope of License. Except as expressly provided herein, no license, right, title or interest in or to the
Consolidated Datafeed is granted to ISS, and no license, right, title or
interest in or to the Enhanced Components is granted to ADP, either expressly
or by implication, estoppel or otherwise.


 


3.5.                                 Creation of Reports. Notwithstanding anything to the contrary
contained in this Agreement, ISS is hereby authorized to extract investment
position and vote history information generated by the use of the Consolidated
Datafeed (including the Enhanced Components) and to incorporate such extracted
information into ISS’s vote compilation software for the purpose of creating
reports, which indicate an investor’s combined positions and voting


 


5

















 


history records across all
accounts for which ISS has voting authority. ISS is solely responsible for the
content of any and all information and/or data extracted as set forth above and
ADP shall have no liability or obligation with respect to the accuracy of such
information and data or the accuracy of any reports generated therefrom.


 


3.6.                                 Termination of Existing License. Between the Effective Date and the Live
Date, all Ballots processed through the existing Proxy Edge Software (and not
through the Consolidated Datafeed) shall be governed in all respects by the
existing Proxy Edge Software License and Services Agreement dated January 1,
1998 between ADP and ISS (as amended, the “Proxy Edge License Agreement”). As
of the Live Date, this Agreement shall supersede and replace the Proxy Edge
License Agreement, which shall be terminated as of the Live Date.


 


SECTION
4.                            Support Services


 


4.1.                                 Service Agreement ADP shall provide the support services
specified in and according to the terms and conditions as set forth in the
Service Level Agreement (the “Service Agreement”) between ADP and ISS, and
attached hereto as Annex I (the “Support Services”).


 


4.2.                                  Additional Support Services. ADP shall, at no additional cost, provide
to ISS the following support services (together with the Support Services, the “Services”)
for the Consolidated Datafeed (including all updates, enhancements and
modifications thereto): (a) provide telephone support on every Business Day to
assist in the implementation, utilization and maintenance of the Consolidated
Datafeed; (b) provide upgrades or updates (and appropriate documentation) that
contain error or defect corrections; and (c) correct any error or defect in
content or the transmission of the Consolidated Datafeed reported by ISS, or
any of which ADP becomes aware, within a reasonable time frame given the
severity of such error or defect, which error or defect causes the Consolidated
Datafeed not to perform substantially in accordance with the description of its
functions contained in the Statement of Work; and (d) answer questions and
respond to problems related to (i) data communications, data quality and
accuracy, (ii) whether a share position has been reported, and (iii) whether an
electronic ballot has been transmitted, received, confirmed, released, or
reported for tabulation. Upon request by ISS or custodians of ISS’ clients, ADP
will ascertain the current voting status of any account, including review of
unreleased votes. Telephone or telecommunication charges under this Agreement
will be borne by the party placing the call. ADP may but shall not be obligated
to record telephone calls and ISS hereby consents to the recording of such
calls.


 


SECTION
5.                            Ownership of Intellectual Property


 


5.1.                                 Ownership of Consolidated Datafeed. ISS acknowledges that as between the
parties ADP owns all right, title and interest in and to the Consolidated
Datafeed other than the Enhanced Components. ISS shall not take any action that
is inconsistent with such ownership of the Consolidated Datafeed and agrees
that nothing in this Agreement and no use of the Consolidated Datafeed by ISS
pursuant to this Agreement shall vest in ISS, or be construed to vest in ISS,
any right of ownership in or to the Consolidated Datafeed other than the right
to use the Consolidated Datafeed solely in accordance with the terms and
conditions of this Agreement.


 


6

















 


5.2.                                  Ownership of Enhanced Components. ADP acknowledges that as between the
parties ISS owns all right, title and interest in and to the Enhanced
Components. ADP shall not take any action that is inconsistent with such
ownership of the Enhanced Components and agrees that nothing in this Agreement
and no use of the Enhanced Components by ADP pursuant to this Agreement shall
vest in ADP, or be construed to vest in ADP, any right of ownership in or to
the Enhanced Components other than the right to use the Enhanced Components
solely in accordance with the terms and conditions of this Agreement.


 


5.3.                            ISS Proprietary Information.


 


(a)                                        ADP acknowledges and understands ISS’s
representation that the securities holdings, investment plans, client records
and other proprietary or confidential information of ISS, and all information
relating thereto, are confidential, proprietary and trade secrets of ISS and
ISS’s clients (except with respect to information in the public domain) (“ISS
Proprietary Information”). ADP acknowledges that during its performance of its
obligations hereunder, ADP may be provided with or have access to ISS
Proprietary Information, which it shall treat as Confidential Information and
comply with the obligations concerning Confidential Information set forth in
Section 11. ADP further agrees that in addition to ISS’s right to equitable and
injunctive relief to prevent unauthorized, negligent or inadvertent use or
disclosure of ISS Proprietary Information as provided for in Section 11.6, ISS
shall be entitled to recover the amount of all such damages (including
reasonable attorneys’ fees and expenses)
in connection with such use or disclosure.


 


(b)                                       Notwithstanding anything in this Section 5.3
to the contrary, ADP may use (i) information obtained from ISS such as its
feedback and suggestions regarding the Consolidated Datafeed, and (ii) ISS’s
and ISS clients’ voting patterns for purposes of providing statistical data to
third parties, provided that in each case neither ISS’s nor its clients’
identities are disclosed nor could reasonably be inferred from the context of
the description. ISS shall have the right to review and approve in writing the
characterization of ISS ‘ client voting records (identified. as such) or
patterns prior to any dissemination of such information to any Person other
than ISS. Nothing in this paragraph or anywhere else in this Agreement shall be
interpreted as a restriction of any kind on ADP’s use of information (i) that
is not ISS Proprietary Information; (ii) of which ISS is not the owner or (iii)
that did not emanate from ISS (so long as such information was previously known
or acquired by ADP through lawful means).


 


7

















 


5.4.                            ADP
Proprietary Information.


 


(a)                                          ISS
acknowledges and understands ADP’s representation that the securities holdings,
investment plans, client records as well as certain intellectual property
contained in ADP’s Proxy Plus System and other proprietary or confidential
information of ADP, and all information relating thereto, are confidential, proprietary
and trade secrets of ADP and ADP’s clients (except with respect to information
in the public domain) (“ADP Proprietary Information”). ISS acknowledges that
during its performance of its obligations hereunder, ISS may be provided with
or have access to ADP Proprietary Information, which it shall treat as
Confidential Information and comply with the obligations concerning
Confidential Information set forth in Section 11.6. ISS further agrees that in
addition to ADP’s right to equitable and injunctive relief to prevent
unauthorized, negligent or inadvertent use of disclosure of ADP Proprietary
Information as provided for in Section 11, ADP shall be entitled to recover the
amount of all such damages (including reasonable attorney’s fees and expenses)
in connection with such use or disclosure.


 


SECTION 6.                        Fees.


 


6.1.           Vote Instruction Fee. ISS and ADP
shall each use commercially reasonable efforts to minimize the number of paper
ballots transmitted by ADP to ISS, and returned by ISS to ADP, during the Term,
to further a system of full electronic interchange between the parties. During
the Term, subject to Section 6.3 below, ISS shall pay ADP a fee per Vote
Instruction (the “Datafeed Vote Instruction Fee”) as set forth on Annex II
hereto (subject to any adjustments pursuant to Section 8 herein) for Vote
Instructions pertaining to Ballots transmitted via any method by ADP to ISS,
and returned by ISS to ADP through the Consolidated Datafeed. The aggregate
Datafeed Vote Instruction Fees shall be invoiced to ISS on a monthly basis.


 


6.2.          Services Fee. ADP shall provide the
Services (outlined in Section 4.1 and 4.2 herein) to ISS at no additional cost.


 


6.3.           Minimum Monthly Ballot Requests Fee.
Notwithstanding anything contained in this Agreement to the contrary, with
respect to each month of the Term, ISS shall be obligated to pay to ADP a
minimum fee (the “Minimum Monthly Ballot Requests Fee”) equal to the product of
(x) the weighted average of the applicable
monthly Datafeed Vote Instruction Fee(s) and (y) a number equal to 95%
(the “Monthly Fee Ballot Percentage”) of all Ballots which ISS’s clients have
requested that ISS vote on their behalf and which are sent or transmitted by
ADP, by whatever means, to ISS during the month in question. ISS’s obligation
to pay the Minimum Monthly
Ballot Requests Fee shall be absolute, irrespective
of the number of Vote Instructions actually transmitted to ADP via the Consolidated Datafeed for the month in
question. On an annual basis during the Term, beginning on the first anniversary
of the Live Date, ADP and ISS shall, in good faith, perform a review of (i) the
total number of Ballots transmitted by ADP, by whatever means, to ISS during
the previous year, (ii) the total number of Ballots voted by ISS and
returned to ADP, by whatever means, during the previous year, (iii) the total
number of Ballots voted by ISS and returned to ADP via the Consolidated
Datafeed during the previous year, and (iv) any qualifying factors identified by each of ISS and ADP with
respect to the immediately preceding clauses (i) through (iii), in order to
determine whether any


 


8

















 


adjustment to the Monthly
Fee Ballot Percentage is required based on the initial formula used to
determine the Monthly Fee Ballot Percentage. If, and to the extent, such
percentage shall be adjusted, the aggregate Minimum Monthly Ballot Requests
Fees for the previous year shall be reconciled to reflect a credit or balance
due to or by ISS for such adjustment of the Monthly Fee Ballot Percentage.


 


6.4.                                  Failure to Pay and Overdue Payments. Any payments other than payments subject to
a bona fide dispute, that are not made within 60 days of the invoice date as
provided in this Section 6 shall bear interest at the annual rate of 8%. Such
remedy is not exclusive but shall be cumulative along with any and all other
remedies available to ADP under this Agreement and Applicable Law.


 


SECTION
7.                        Representations, Warranties and Covenants.


 


7.1.                                  ISS Representations. ISS represents and warrants to ADP the
following:


 


(a)                                  It is duly incorporated, validly existing,
and in good standing under the laws of the State of Delaware and has full power
and authority to execute and deliver this Agreement and to perform its
obligations hereunder. All requisite corporate actions necessary for the due
authorization, execution, delivery, and performance of this Agreement by ISS
have been duly taken. ISS has duly executed and delivered this Agreement. This
Agreement constitutes a valid and binding obligation of ISS enforceable against
ISS in accordance with its terms (except as may be limited by bankruptcy,
insolvency, or similar laws of general application and by the effect of general
principles of equity, regardless of whether considered at law or in equity).


 


(b)                                 The execution, delivery and performance by
ISS of this Agreement does not and will not violate or conflict with, or
require the consent of any third party under, any agreements, rights, or
obligations existing between ISS and any other Person.


 


(c)                                  It has the full legal right to grant to ADP
the licenses granted under this Agreement. ISS’ performance of its obligations
under this Agreement does not infringe upon any intellectual property right or
proprietary right of any Person


 


7.2.                                  ADP Representations. ADP represents and warrants to ISS the
following:


 


(a)                                  It is duly organized, validly existing, and
in good standing under the laws of the State of Delaware and has full power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. All requisite corporate actions necessary for the due authorization, execution,
delivery, and performance of this Agreement by ADP have been duly taken. ADP
has duly executed and delivered this Agreement. This Agreement constitutes a
valid and binding obligation of ADP enforceable against ADP in accordance with
its terms (except as may be limited by bankruptcy,
insolvency, or similar laws of general application and by the effect of
general principles of equity, regardless of whether considered at law or in
equity).


 


9

















 


(b)                                      The execution, delivery  and
performance by ADP of this Agreement does not and will not violate or conflict
with, or require the consent of any third party under, any agreements, rights,
or obligations existing between ADP and any other Person.


 


(c)                                       It has the full legal right to grant to ISS
the licenses granted under this Agreement and its performance of its
obligations under this Agreement does not infringe upon any intellectual
property right or proprietary right of any Person.


 


7.3.                            ADP Covenants. ADP covenants to ISS as follows:


 


(a)                                       During the Term, ADP shall not knowingly
distribute any material or operate any system including, without limitation,
its Consolidated Datafeed that (i) infringes any intellectual property rights
of any Person or (ii) violates any law, statute, ordinance, or regulation
(including without limitation, the laws and regulations governing export
control), and shall use commercially reasonable efforts to prevent the
distribution of any material, program, device or system, including, without
limitation, the Consolidated Datafeed, that contains any viruses, trojan
horses, worms, time bombs, cancelbots, or other computer programming routines
that are intended to damage, detrimentally interfere with; surreptitiously
intercept, gain unauthorized access
to or control over, or expropriate any system, data or personal information or
in anyway affect its obligations hereunder.


 


(b)                                      The Consolidated Datafeed shall comply in all
material respects, and operate in substantial conformance, with the
descriptions and representations set forth in this Agreement, including the
Statement of Work (and any amendments to this Agreement).


 


(c)                                       During the Term, ADP shall conduct an annual
SAS-70 audit or similar audit at least as comprehensive as a SAS-70 audit and
shall provide the results of such audit to ISS.


 


(d)                                      During the Term, ADP shall conduct a
bi-annual disaster recovery test and provide the results of such test to ISS.


 


(e)                                       During the Term, but only on one (1) occasion
per year, ISS may retain an independent third party, at its cost, to conduct a
quality assurance review of the Consolidated Datafeed; however, such review
shall not extend to review, disclosure and audit of any proprietary systems,
trade secrets or intellectual property of ADP, including, but not limited to,
source code or password protected code, inventions, know-how, confidential
customer data or third party software or proprietary material licensed by ADP.
The audit may be conducted provided that the actual report and the results of
such audit shall be deemed Confidential Information of ADP and the report and
results of such audit may only be disclosed to ISS after execution by ISS of an
appropriate non-disclosure agreement, and in no event shall the report and
results be disclosed to any third party without ADP’s prior written consent. In
no event shall the results of the audit be used by ISS to compete with ADP or
to the detriment of ADP’s business.


 


(f)                                         On the first anniversary of the Term, ADP
shall negotiate in good faith with ISS to determine the appropriateness and
extent, if any, of a mutually beneficial increase to the de minimis activity
threshold set forth in Section 12.2(e).


 


10

















 


7.4.                              ISS Covenants. ISS covenants to ADP as follows:


 


(a)                                       During the Term, ISS shall not knowingly
distribute any material or operate any system, including, without limitation,
the Enhanced Components, that (i) infringes any intellectual property rights of
any Person or (ii) violates any law, statute, ordinance, or regulation
(including without limitation, the laws and regulations governing export
control), and shall use commercially reasonable efforts to prevent the distribution
of any material, program, device or system, including, without limitation, the
Enhanced Components, that contains any viruses, trojan horses, worms, time
bombs, cancelbots, or other computer programming routines that are intended to
damage, detrimentally interfere with, surreptitiously intercept, gain
unauthorized access to or control over, or expropriate any system, data or
personal information or in anyway affect its obligations hereunder.


 


(b)                                      During the Term, ISS shall conduct an annual
SAS-70 audit or similar audit at least as comprehensive as a SAS-70 audit and
shall provide the results of such audit to ADP.


 


(c)                                       During the Term, ISS shall conduct a
bi-annual disaster recovery test and provide the results of such test to ADP.


 


(d)                                      During the Term, but only on one (1) occasion
per year, ADP may retain an independent third party, at its cost, to conduct an
audit of the process flow and controls used by ISS to provide the ISS proxy
voting services contemplated under this Agreement; however, such audit shall
not extend to review, disclosure and audit of any proprietary systems, trade
secrets or intellectual property of ISS, including, but not limited to, source
code or password protected code, inventions, know-how, confidential customer
data or third party software or proprietary material licensed by ISS. The audit
may be conducted provided that the actual report and the results of such audit
shall be deemed Confidential Information of ISS and the report and results of
such audit may only be disclosed to ADP after execution by ADP of an
appropriate non-disclosure agreement, and in no event shall the report and results
be disclosed to any third party without ISS’s prior written consent. In no
event shall the results of the audit be used by ADP to compete with ISS or to
the detriment of ISS’s business.


 


(e)                                       Subject to ADP’s obligations set forth in
Annex I, ISS agrees to transmit all Vote Instructions pertaining to Ballots
received from ADP via the Consolidated Datafeed by use of the Consolidated
Datafeed unless ISS shall be precluded from transmitting such Vote Instructions
by such means due to Downtime, Scheduled Maintenance or Unscheduled
Maintenance. In the event that ISS (i) receives a Ballot from ADP via any
method other than via the Consolidated Datafeed, or (ii) is precluded from
transmitting Vote Instructions via the Consolidated Datafeed due to Downtime,
Scheduled Maintenance or Unscheduled Maintenance or due to any act or omission
of ADP in contravention of its obligations under this Agreement, ISS may, under
such circumstances, transmit Vote Instructions through such method(s)
(including, without limitation, via the Internet, telephone and facsimile) as
ISS shall determine in its sole discretion. Notwithstanding the foregoing, ISS
shall not use any Unsanctioned Method or Unsanctioned Form.


 


11

















 


(f)                                         On the first anniversary of the Term, ISS
shall negotiate in good faith with ADP to determine the appropriateness and
extent, if any, of a mutually beneficial increase to the de minimis activity
threshold set forth in Section 12.2(e).


 


7.5.                              Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, ALL OTHER WARRANTIES AND CONDITIONS ON BEHALF OF EITHER
PARTY, WHETHER EXPRESSED OR IMPLIED BY STATUTE, COMMON LAW, OR OTHERWISE, ARE
TO THE EXTENT PERMISSIBLE BY LAW HEREBY EXCLUDED. IN PARTICULAR,
ADP AND ISS HEREBY ACKNOWLEDGE THAT NEITHER ADP NOR ISS MAKES
ANY WARRANTY, EXPRESS OR IMPLIED, TO THE OTHER OR TO ANY THIRD PARTIES AS TO
THE QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PRODUCTS AND SERVICES OFFERED UNDER THIS AGREEMENT. EXCEPT AS EXPRESSLY STATED
IN THIS AGREEMENT, NEITHER PARTY GIVES ANY ASSURANCE OR WARRANTY REGARDING THE
PAST OR CONTINUED SUPPLY, ACCURACY, CALCULATION OR PUBLICATION OF THE
CONSOLIDATED DATAFEED OR THE ENHANCED COMPONENTS.


 


SECTION
8.                        Pricing Adjustment.


 


***


 


12

















 


SECTION
9.                        Limitation of Liability.


 


NEITHER
PARTY SHALL HAVE ANY LIABILITY FOR LOST PROFITS OR INDIRECT, PUNITIVE OR
SPECIAL DAMAGES ARISING OUT OF THIS AGREEMENT, EVEN IF NOTIFIED OF THE
POSSIBILITY OF SUCH DAMAGES.


 


SECTION
10.                  Indemnification.


 


10.1.                      ISS Indemnity. ISS shall indemnify and hold harmless ADP,
its Affiliates and their respective officers, directors, partners, employees
and agents against any and all judgments, damages, costs or losses of any kind
(including reasonable attorneys’ and experts’ fees) resulting from any third
party claim, action, or proceeding that directly arises out of or relates to:
(i) any breach by ISS of its representations, warranties or covenants
hereunder; or (ii) any claim that the Enhanced Components, any part thereof or
any technology used in connection therewith, infringes any U.S. patent,
copyright, trademark, trade name or other proprietary right, including
misappropriation of trade secrets; provided, however, that (a) ADP notifies ISS
promptly of any such claim, action or proceeding; (b) ADP grants ISS control of
its defense and/or settlement; and (c) ADP cooperates with ISS, at ISS’s
expense, in the defense thereof. Upon request by ADP, ISS shall periodically
reimburse ADP for its reasonable expenses incurred under this Section 10.1. ADP
shall have the right, at its own expense, to participate in the defense of any
claim, action or proceeding against which it is indemnified hereunder;
provided, however, it shall have no right to control the defense, consent to
judgment, or agree to settle any such claim, action or proceeding without the
written consent of ISS without waiving the indemnity hereunder. ISS, in the
defense of any such claim, action or proceeding, except with the written
consent of ADP, shall not consent to the entry of any judgment or enter into
any settlement which either (A) does not include, as an unconditional term, the
grant by the claimant to ADP of a release of all liabilities in respect of such
claims or (B) adversely affects the rights or public image of ADP in respect of
such claim, action or proceeding.


 


10.2.                     ADP Indemnity.


 


(a)                             ADP shall indemnify and hold harmless ISS,
its Affiliates and their officers, directors, partners, employees and agents
against any and all judgments, damages, costs or losses of any kind (including
reasonable attorneys’ and experts’ fees) resulting from any third party claim,
action, or proceeding that directly arises out of or relates to: (i) any breach
by ADP of its representations, warranties or covenants hereunder; or (ii) any
claim that the Consolidated Datafeed, any part thereof or any technology used
in connection therewith, infringes any U.S.
patent, copyright, trademark, trade name or other proprietary right, including misappropriation of trade
secrets; provided, however, that (a) ISS notifies ADP promptly of any such claim, action or proceeding of which it
becomes aware; (b) ISS grants ADP control of its defense and/or settlement; and
(c) ISS cooperates with ADP, at ADP’s expense, in the defense thereof. Upon
request by ISS, ADP shall periodically reimburse ISS for its reasonable
expenses incurred under this Section 10.2. ISS shall have the right, at its own
expense, to participate in the  defense of any claim, action or proceeding against which it is
indemnified hereunder; provided, however, it shall have no right to control the
defense, consent to judgment, or agree to settle any such claim, action or
proceeding without the written consent of ADP without waiving the indemnity
hereunder. ADP, in the defense of any such claim, action or proceeding, except
with the written


 


13

















 


consent of ISS, shall not
consent to the entry of any judgment or enter into any settlement which either
(A) does not include, as an unconditional term, the grant by the claimant to
ISS of a release of all liabilities in respect of such claims or (B) adversely
affects the rights or public image of ISS in respect of such claim, action or
proceeding.


 


(b)                                       Without limiting the rights to
indemnification set forth herein, if, as a result of any such infringement
claim, ISS is enjoined from using the Consolidated Datafeed, or in ADP’s
judgment such an injunction is likely to be issued, ADP, at its expense, may
either modify the Consolidated Datafeed so that it is no longer infringing (so
long as its functionality is not impaired), replace the Consolidated Datafeed
with functionally equivalent products or services, or obtain a right from such
claimant for ISS to continue to use the Consolidated Datafeed on terms no less
favorable than those set forth in this Agreement.


 


SECTION
11.                      Confidentiality.


 


11.1.                          Confidential Information. The parties recognize that, in connection
with the performance of this Agreement (including the Services), before and
after the date of this Agreement, each party or their respective Affiliates (in
such capacity, the “Disclosing Party”) has disclosed and may disclose
Confidential Information to the other party or such party’s Affiliates (the “Receiving
Party”). For purposes of this Agreement, “Confidential Information” means (i)
all information about either party’s business, business plans, customers,
strategies, trade secrets, operations, records, finances, assets, and
information that reveals the processes, methodologies, technology (including
source code and object code) or know-how by which either party’s existing or
future products, services, applications and methods of operation are developed,
conducted or operated, regardless of its form or the medium in which it is
stored; or (ii) any information that reasonably should be expected by the
Receiving Party to be confidential by virtue of its content or context.


 


11.2.                          Use of Confidential Information. Notwithstanding anything to the contrary
contained in Section 11.1, “Confidential Information” shall not include
information which: (i) was at the time of disclosure already in the possession
of the Receiving Party and not subject to any duty or obligation of
confidentiality or nondisclosure, as shown by written record; (ii) becomes
publicly known through no
wrongful act of the Receiving Party; (iii) was independently made available to
the Receiving Party by an unrelated and independent third party whose
disclosure shall not, to the knowledge of the Receiving Party after due
inquiry, constitute a breach of any duty of confidentiality owed to the
Disclosing Party; or (iv) has been independently developed by the Receiving
Party. The Receiving Party agrees (A) not to use any such Confidential
Information for any purpose other
than in the performance of its obligations
under this Agreement or as permitted hereby and (B) not to disclose any
such Confidential Information, except (1) to a limited number of its employees
on a need to know basis, (2) to its agents, representatives, lawyers and other
advisers that have a need to know such Confidential Information, (3) to
software consultants and advisors who have a need to know such Confidential
Information in the course of the performance of their duties, provided that
such parties enter into appropriate written agreements to keep all Confidential
Information confidential which are enforceable by the Disclosing Party, to
protect the confidentiality of such Confidential Information, and (4) if
compelled to be disclosed pursuant to a court order or other legal process,


 


14

















 


provided that the Disclosing
Party shall first have the opportunity to request an appropriate protective
order.


 


11.3.                           Unauthorized Use. The Receiving Party shall take all
commercially reasonable measures to protect the secrecy and confidentiality of,
and avoid disclosure or unauthorized use of, the Disclosing Party’s
Confidential Information and shall be responsible for any disclosure or misuse
of Confidential Information that results from a failure to comply with this
Section 11.3. The Receiving Party shall be fully responsible for any breach of
this Agreement by its agents, contractors, representatives and employees. The
Receiving Party shall promptly report to the Disclosing Party any actual or
suspected violation of the terms of this Agreement and shall take all reasonable
further steps required by the Disclosing Party to prevent, control or remedy
any such violation.


 


11.4.                           Return of Information. The  Receiving Party shall, at the request of the
Disclosing Party, retrieve all Confidential Information from its permitted
disclosees and thereafter shall (i) promptly return all Confidential
Information held or used by the Receiving Party in whatever form, or (ii) at
the discretion of the Receiving Party, promptly destroy all such Confidential
Information and certify such destruction to the Disclosing Party, provided
that during the Term, the Disclosing Party will not make such a request with
respect to Confidential Information necessary for the Receiving Party to
perform its obligations hereunder.


 


11.5.                          Tax Treatment. Notwithstanding any statement to the
contrary in this Agreement, each of the parties and their respective affiliates
and their advisors authorize employees, representatives or other agents, from
and after the commencement of any discussions with any such party, to disclose
to any and all Persons without limitation of any kind the tax treatment and tax
structure related to this Agreement and all materials of any kind (including
opinions or other tax analyses) relating to such tax treatment or tax structure
that may be provided, except for any information identifying either party
hereto or their Affiliates. For purposes hereof, the terms “tax treatment” and “tax
structure” shall have the meaning provided by Treasury Regulation Section 1.6011-4.


 


11.6.                           Injunctions. In view of the difficulties of placing a monetary value on the
Confidential Information, the Disclosing Party may be entitled to a preliminary
and final injunction without the necessity of posting any bond or undertaking
in connection therewith to prevent any further breach of this Section 11 or
further unauthorized use of its Confidential Information. This remedy is
separate from and in addition to any other remedy the Disclosing Party may
have.


 


11.7.                          Existing Non Disclosure Agreement. This Section 11 supercedes and replaces the
existing Non Disclosure Agreement between ISS and ADP and such Non Disclosure
Agreement shall be deemed terminated as of the Effective Date.


 


SECTION
12.                     Term and Termination.


 


12.1.                           Term. Subject to early termination under Section 12.2, the term of this
Agreement shall commence on the Effective Date and terminate on the eighth (8th)
anniversary of the Effective Date (the “Initial Term”); provided, that
this Agreement shall be renewable for


 


15

















 


successive five (5) year
periods (together with the Initial ‘Term, the “Term”) unless it is terminated
by either party by giving written notice to the other party at least ninety
(90) days before the end of the Initial Term or any succeeding renewal term.


 


12.2.                    Termination. Notwithstanding anything to the contrary contained herein, this
Agreement may be terminated at any time:


 


(a)                                       By mutual consent of ADP and ISS;


 


(b)                                     By ISS if ADP has breached any
representation, warranty, covenant or agreement contained in this Agreement and
has not, in the case of a breach of a covenant or agreement, cured such breach
within ten Business Days after written notice of such breach is given to ADP
(provided that ISS is not then in material breach of the terms of this
Agreement, and provided further that no cure period shall be required for a
breach which  by its nature
cannot be cured) unless such breach shall not reasonably be likely to prevent
the consummation of the transactions contemplated by this Agreement or have a
Material Adverse Effect on ISS;


 


(c)                                      By ADP if ISS has breached any
representation, warranty, covenant or agreement contained in this Agreement and
has not, in the case of a breach of a covenant or agreement, cured such breach
within ten Business Days after written notice of such breach is given to ISS
(provided that ADP is not then in material breach of the terms of this
Agreement, and provided further that no cure period shall be required for a
breach which by its nature cannot be cured) unless such breach shall not
reasonably be likely to prevent the consummation of the transactions
contemplated by this Agreement or have a Material Adverse Effect on ADP;


 


(d)                                     By ISS upon a breach by ADP of Section
7.3(f);


 


(e)                                      Subject to Sections 7.3(f) and 7.40), by ADP
if, during the Term, ISS commences any activity, other than on a “de minimis”
basis, related to acting as an agent or otherwise as an outsourced service
provider, on behalf of banks, broker-dealers or other nominees in North America
(in the aggregate, “Nominees”), in connection with fulfilling such Nominees’
obligations pursuant to Rules 14b-1 or 14b-2, respectively, under the
Securities Exchange Act of 1934, as amended, or any successor rules or
regulations. For purposes of this Section 12.2(e), a “de minimis” basis shall
mean the processing by ISS of 3,000 or fewer Nominee customer accounts in any
calendar year; provided, such Nominee customer accounts (i) contain positions
for securities of North American issuers trading on North American securities
exchanges and (ii) are accounts of Persons not domiciled in North America.
Within 10 Business Days after the end of each calendar year during the Term,
ISS shall deliver to ADP a certificate signed by the President and Chairman of
ISS certifying ISS’s compliance with the provisions of this Section 12.2(e);


 


(f)                                        By either party upon a breach by the other
party of Section 14.13 (Assignment);


 


(g)                                     By either party if: (i) there shall be a
final, non-appealable order of a Federal or state court in effect preventing
consummation of the transactions contemplated


 


16














 


hereby; or (ii) there shall be any final action taken, or any statute,
rule, regulation or order enacted, promulgated or issued or deemed applicable
to the transactions contemplated hereby by any Governmental Entity which would
make consummation of the transactions contemplated hereby illegal; and


 


(h)                                  By either party in the event the other party
intentionally discloses any Confidential Information of the other party in
breach of this Agreement.


 


12.3.                      Effect of Termination.


 


(a)                                    Upon the expiration or termination of this
Agreement, provided that ISS continues to pay Fees pursuant to Section 6, ADP
shall permit and not prohibit ISS’s continued use of the Consolidated Datafeed
for a transition period (the “Transition Period”) in order to provide ISS
adequate time to execute an uninterrupted migration by ISS from the use of the
Consolidated Datafeed to the use and operation of an alternate system so as not
to disrupt the business activities of ISS or any of ISS’s clients. Once such
alternate system is operational on the ISS system, ISS shall discontinue all
use of the Consolidated Datafeed and return to ADP all materials and
documentation related to the Consolidated Datafeed that are proprietary to ADP.
In no event shall this Transition Period be less than 120 days or greater than
six (6) months from the date of expiration or termination of this Agreement.


 


(b)                                    Upon the termination of this Agreement
pursuant to Section 12.2(e) above, ISS shall have the right to license ADP’s
Proxy Edge Software for purposes of processing Ballots on such terms and
conditions in existence under the Proxy Edge License Agreement immediately
prior to the Live Date, except for the term set forth in such agreement, which
shall be of no shorter duration than the then-remaining portion of the Term
under this Agreement. Notwithstanding the foregoing, in the event that the
parties revert to the Proxy Edge Software License Agreement, the pricing terms
set forth in such agreement immediately prior to the Live Date shall automatically be increased to reflect the aggregate
annual increase in the United States Consumer Price Index as released by the
United States Department of Labor.


 


(c)                                      Subject to Section 12.3(a), upon the
expiration or termination of this Agreement, (i)
ADP shall return to ISS all materials and documentation related to the Enhanced
Components that are proprietary to ISS, and (ii) ISS shall return to ADP all
materials and documentation related to the Consolidated Datafeed that are
proprietary to ADP.


 


SECTION 13. Notice.


 


13.1.                         Notice of ADP System. During the Term, ISS shall display in all
views available to vote agency clients, subject to ADP’s prior approval in each
instance, notice that the platform is electronically connected to the ADP Proxy
Plus system.


 


SECTION 14. Miscellaneous.


 


14.1.                          Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the United States of America and the
State of New York applicable to agreements made and to be performed entirely
within such state, without regard to the conflict of law principles of such
state.


 


 


17

















 


14.2.                          Consent to Jurisdiction. Each of ADP and ISS irrevocably and
unconditionally submits, for itself and its property, to the non-exclusive jurisdiction
of the courts of New York State sitting in the County of New York or any
federal court of the United States of America sitting in the Southern District
of New York arising out of or relating to this Agreement or the transactions
contemplated thereby.


 


14.3.                         Waiver of a Jury Trial. Each party waives, to the fullest extent
permitted by Applicable Law, any right it may have to a trial by jury in
respect of any litigation directly or indirectly arising out of, under or in
connection with this Agreement. Each party (i) certifies that no
representative, agent or attorney of the other party has represented, expressly
or otherwise, that the other party would not, in the event of litigation, seek
to enforce the foregoing waiver and (ii) acknowledges that it and the other
party have been induced to enter into this Agreement by, among other things,
the mutual waivers and certifications in this Section 14.3.


 


14.4.                         Relationship. Nothing contained in this Agreement shall
be construed as creating a joint venture, partnership, agent or employment
relationship between the parties. Each party will refrain from acting in any
manner which will prejudice or pledge the credit of the other party, from
representing to any other Person that it has the authority to act as agent on
behalf of such party and from making or purporting to make any contract on
behalf such party.


 


14.5.                         No Promotion. Except as contemplated in this Agreement,
each party agrees that it will not, without the prior written consent of the
other party in each instance, (i) use in external advertising, publicity, or
otherwise the name of the other party, or any affiliate of such party, or any
partner or employee of such party, nor any trade name, trademark, trade device,
service mark, symbol or any abbreviation, contraction or simulation thereof
owned by the other party or its affiliates, or (ii) represent, directly or
indirectly, that any information or any service provided by either party has
been approved or endorsed by the other party.


 


14.6.                         Notices. All notices and other communications under this Agreement shall be:


 


(a)               in writing,


 


(b)              delivered by hand, by registered or certified
mail, return receipt requested, by overnight delivery service, or by facsimile
transmission (with confirmation of receipt by telephone) to the address set
forth below or such address as either party shall specify by a written notice
to the other, and


 


(c)               deemed given upon receipt.


 


	
  Notice to ADP:

  	
   

  	
  Automatic Data Processing,
  Inc.

  
	
   

  	
   

  	
  1 ADP Boulevard

  
	
   

  	
   

  	
  Roseland, New Jersey 07068
  1728

  
	
   

  	
   

  	
  Tel: (973) 974 5000

  
	
   

  	
   

  	
  Fax: (973) 974 3324

  
	
   

  	
   

  	
  Attention: General Counsel

  



 


18

















 


 


 


	
   

  	
   

  	
  with a copy
  to:

  
	
   

  	
   

  	
  General
  Manager

  
	
   

  	
   

  	
  ADP Investor
  Communications

  
	
   

  	
   

  	
  51 Mercedes
  Way

  
	
   

  	
   

  	
  Edgewood,
  New York 11717

  
	
   

  	
   

  	
  Fax: (631)
  254 7616

  
	
   

  	
   

  	
  Phone: (631)
  254 7448

  
	
   

  	
   

  	
   

  
	
  Notice to
  ISS:

  	
   

  	
  Institutional
  Shareholder Services, Inc.

  
	
   

  	
   

  	
  2099 Gaither
  Road, Suite 501

  
	
   

  	
   

  	
  Rockville,
  MD 20850

  
	
   

  	
   

  	
  Tel: (301)
  556-0500

  
	
   

  	
   

  	
  Fax: (301)
  556-0491

  
	
   

  	
   

  	
  Attention:
  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Willkie Farr
  & Gallagher LLP

  
	
   

  	
   

  	
  787 Seventh
  Avenue

  
	
   

  	
   

  	
  New York, NY
  10019

  
	
   

  	
   

  	
  Tel: (212)
  728-8000

  
	
   

  	
   

  	
  Fax: (212)
  728-8111

  
	
   

  	
   

  	
  Attention:
  Jeffrey R. Poss, Esq.

  



 


14.7.                          Entire
Agreement. This Agreement and the Schedule, Exhibits, Appendices and
Annexes attached hereto contain the entire agreement between the parties hereto
with respect to the subject matter hereof and thereof and supersede all prior
agreements and undertakings between the parties relating to the subject matter
hereof and thereof, including, without limitation, the Proxy Edge License
Agreement.


 


14.8.                           Severability.
If any provision of this Agreement or the application of any such provision to
any Person or circumstance shall be held invalid, illegal or unenforceable in
any respect by a court of competent jurisdiction, such invalidity, illegality
or unenforceability  shall not affect any other
provision of this Agreement.


 


14.9.                           Further
Assurances. The parties shall each perform such acts, execute and deliver
such instruments and documents, and do all such other things as may be
commercially reasonable to accomplish the transactions contemplated by this
Agreement.


 


14.10.                     Force
Majeure. Neither ADP nor ISS shall bear responsibility or liability for any
losses arising out of any delay in or interruptions of their respective
performance of their obligations under this Agreement due to any act of God,
act of Governmental Authority, act of the public enemy or due to war, the
outbreak or escalation of hostilities, riot, fire, flood, civil commotion,
insurrection, labor difficulty (including, without limitation, any strike, or
other work stoppage or slow down), severe or adverse weather conditions,
communications line failure, or other similar cause beyond the reasonable
control of the party so affected. So long as any such delay or interruption
continues, the party responsible for such performance will use its


 


19

















 


reasonable best efforts to
eliminate such conditions, as applicable, and will keep the other party fully
informed at all times concerning the matters causing such delay or default and
the prospects for their termination.


 


14.11.                     Advertising and Publicity. Neither party, nor anyone acting on such
party’s behalf, shall publish, distribute or otherwise disseminate any press
release, advertising or publicity matter having any reference to the other
party of this Agreement, unless and until such matter has first been submitted
to and approved in writing by the other party.


 


14.12.                     Amendments: Waivers. Except as otherwise expressly provided in
this Agreement, no amendment to this Agreement shall be effective unless it
shall be in writing and signed by the parties. Any failure of a party to comply
with any obligation, covenant, agreement or condition contained in this
Agreement may be waived by the party entitled to the benefits thereof only by a
written instrument signed by the party granting such waiver, but such waiver or
failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure of compliance.


 


14.13.                      Assignment. ADP shall have the right to assign or sublicense this Agreement and
any of its rights, interests, or obligations hereunder to any Person, without
ISS’s prior written consent, so
long as such assignee does not directly or materially compete with ISS
immediately prior to the date of such assignment and, provided that, such
assignee shall be obligated to perform, and capable of performing, all of ADP’s
obligations under this Agreement and shall so agree in writing to such
obligation to perform. ISS shall have the right to assign or sublicense this
Agreement and any of its rights, interests, or obligations hereunder to any
Person, without ADP’s prior written consent, so long as such assignee does not
directly or materially provide substantially similar services or product
offerings as those provided by ADP to ISS customers immediately prior to the
date of such assignment and, provided that, such assignee shall be obligated to
perform, and capable of performing, all of ISS’s obligations under this
Agreement and shall so agree in writing to such obligation to perform.


 


14.14.                      Successors; Assigns: Third-Party Beneficiaries. This Agreement shall be binding upon and
inure to the benefit of each of the parties, and any Person who may become a
party hereto and their respective successors, heirs and legatees and permitted
assigns.


 


14.15.                      Survival. Sections 5, 9, 10, 11, 12.3 shall survive the termination or
expiration of this Agreement. Any and all accrued liabilities shall survive the
termination or expiration of this Agreement.


 


14.16.                      Counterparts. 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 such counterparts have been signed
by each of the parties and delivered to the other party.


 


20

















 


The
parties have caused their respective duly authorized representatives to execute
this Agreement as o f this 27th day of October, 2003.


 


 


	
   

  	
   

  	
  INSTITUTIONAL SHAREHOLDER
  SERVICES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BY:

  	
   /s/ Robert CS Monks

  	
   

  
	
   

  	
   

  	
   

  	
  NAME: Robert CS Monks

  
	
   

  	
   

  	
   

  	
  TITLE: Chairman

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ADP INVESTOR COMMUNICATION
  SERVICES. INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BY:

  	
  /s/ Robert Schifellite

  	
   

  
	
   

  	
   

  	
   

  	
  NAME: Robert Schifellite

  
	
   

  	
   

  	
   

  	
  TITLE: Senior Vice
  President

  



 


 


21

















 


 


Exhibit
A


 


Statement
of Work


 


***


 

















 


 


Annex
I


 


Principal
Terms of 


 


Service
Level Agreement


 


***


 

















 


Appendix I to Annex I


 

















 


Appendix I
to Annex I


 


Contact Details


 


ISS


 


	
  Contact Information

  	
   

  	
   

  
	
  Primary Contact

  	
   

  	
   

  
	
  Name

  	
   

  	
  ISS Helpdesk

  
	
  Telephone

  	
   

  	
  (301) 556-0556

  
	
  Fax

  	
   

  	
   

  
	
  Email

  	
   

  	
  helpdesk@issproxy.com

  
	
  Secondary Contact

  	
   

  	
   

  
	
  Name

  	
   

  	
  Lauren Morningstar

  
	
  Telephone

  	
   

  	
  (301) 556-0276

  
	
  Fax

  	
   

  	
   

  
	
  Email

  	
   

  	
  lauren.morningstar@issproxy.com

  
	
  Emergency/Escalation

  	
   

  	
   

  
	
  Contact

  	
   

  	
   

  
	
  Name

  	
   

  	
  Tim Matthews

  
	
  Telephone

  	
   

  	
  (301) 556-0268

  
	
  Fax

  	
   

  	
   

  
	
  Email

  	
   

  	
  tim.matthews@issproxy.com

  
	
  Data Feed Contact

  	
   

  	
   

  
	
  Name

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax

  	
   

  	
   

  
	
  Email

  	
   

  	
   

  
	
  Data Feed Contact

  	
   

  	
   

  
	
  Name

  	
   

  	
   

  
	
  Telephone

  	
   

  	
   

  
	
  Fax

  	
   

  	
   

  
	
  Email

  	
   

  	
   

  



 


ADP


 


	
  Contact Information

  	
   

  	
   

  
	
  Primary Contact

  	
   

  	
   

  
	
  Name

  	
   

  	
  Network Operations Center

  
	
  Telephone

  	
   

  	
  (631) 254-7500

  
	
  Fax

  	
   

  	
  (631) 254 7699

  



 

















 


	
  Email

  	
   

  	
  netalert@adp.com

  
	
  Secondary Contact

  	
   

  	
   

  
	
  Name

  	
   

  	
  Network Operations Center

  
	
  Telephone

  	
   

  	
  (631) 254-7500

  
	
  Fax

  	
   

  	
  (631) 254 7699

  
	
  Email

  	
   

  	
  netalert@adp.com

  
	
  Emergency/Escalation

  Contact

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name

  	
   

  	
   

  
	
  Telephone

  	
   

  	
   

  
	
  Fax

  	
   

  	
   

  
	
  Email

  	
   

  	
   

  
	
  Data Feed Contact

  	
   

  	
   

  
	
  Name

  	
   

  	
   

  
	
  Telephone

  	
   

  	
   

  
	
  Fax

  	
   

  	
   

  
	
  Email

  	
   

  	
   

  
	
  Data Feed Contact

  	
   

  	
   

  
	
  Name

  	
   

  	
   

  
	
  Telephone

  	
   

  	
   

  
	
  Fax

  	
   

  	
   

  
	
  Email

  	
   

  	
   

  



 

















 


Appendix II to Annex I


 

















 


ADP/ICS


 


APPENDIX 2


 


 


Version 1.1


October 17, 2003


 


ADP/1CS CONSOLIDATED DATA FEED


 


1


 

















 


ADP/ICS


APPENDIX 2


 


INDEX OF CONTENTS


 


 


	
  SECTION

  	
   

  	
   

  	
   

  	
  PAGE

  
	
  1.

  	
   

  	
  PE LITE SECURITY/MEETING

  	
   

  	
  3 – 12

  
	
  2.

  	
   

  	
  PE LITE AGENDA

  	
   

  	
  13 – 18

  
	
  3.

  	
   

  	
  PE LITE BALLOT

  	
   

  	
  19 – 25

  
	
  4.

  	
   

  	
  PE LITE DIRECTOR

  	
   

  	
  26 – 30

  
	
  5.

  	
   

  	
  PE LITE BALLOT CONFIRMATION

  	
   

  	
  31 – 35

  
	
  6.

  	
   

  	
  ISS DOMESTIC VOTE

  	
   

  	
  36 – 45

  
	
  7.

  	
   

  	
  ISS GLOBAL VOTE

  	
   

  	
  46 – 56

  



 


2

















 


ADP/ICS


PE LITE SECURITY/MEETING


INTERFACE FILE REQUIREMENTS


‘469’


 


 


Version 1.1


October
17, 2003


 


3

















 


 


PE LITE SECURITY/MEETING


INCOMING RECORD LAYOUT


 


TABLE OF CONTENTS


 


	
  SECTION

  	
   

  	
   

  	
   

  	
  PAGE

  
	
  1.

  	
   

  	
  LEAD
  RECORD LAYOUT

  	
   

  	
         5

  
	
  2.

  	
   

  	
  LEAD.
  RECORD SUMMARY

  	
   

  	
         7

  
	
  3.

  	
   

  	
  PE LITE
  SECURITY/MEETING INFORMATION 

  	
   

  	
         12

  



 


4

















 


***


 


5

















 


 


ADP/ICS


PE LITE AGENDA


INTERFACE FILE REQUIREMENTS


‘138’


 


 


Version 1.1 


October 17, 2003


 


13














PE LITE AGENDA INCOMING

RECORD LAYOUT


 


TABLE OF CONTENTS


 


	
  SECTION

  	
   

  	
   

  	
  PAGE

  
	
  1.

  	
   

  	
  LEAD
  RECORD LAYOUT

  	
  15

  
	
  2.

  	
   

  	
  LEAD
  RECORD SUMMARY

  	
  16

  
	
  3.

  	
   

  	
  PE LITE
  AGENDA INFORMATION

  	
  18

  



 


14

















 


***


 


15

















 


ADP/ICS

PE LITE BALLOT

INTERFACE FILE REQUIREMENTS

‘388’


 


 


Version 1.1

October 17, 2003


 


19

















 


PE LITE BALLOT INCOMING

RECORD LAYOUT


 


TABLE OF CONTENTS


 


	
  SECTION

  	
   

  	
   

  	
  PAGE

  
	
  1.

  	
   

  	
  LEAD
  RECORD LAYOUT

  	
  21

  
	
  2.

  	
   

  	
  LEAD
  RECORD SUMMARY

  	
  22

  
	
  3.

  	
   

  	
  PE LITE BALLOT INFORMATION

  	
  25

  



 


20

















 


***


 


21

















 


ADP/ICS 

PE LITE DIRECTOR

INTERFACE FILE REQUIREMENTS

‘45’


 


 


Version 1.1 

October 17, 2003


 


26

















 


PE LITE DIRECTOR INCOMING

RECORD LAYOUT


 


TABLE OF CONTENTS


 


	
  SECTION

  	
   

  	
   

  	
  PAGE

  
	
  1.

  	
   

  	
  LEAD RECORD LAYOUT

  	
  28

  
	
  2.

  	
   

  	
  LEAD RECORD SUMMARY 

  	
  29

  
	
  3.

  	
   

  	
  PE LITE
  DIRECTOR INFORMATION

  	
  30

  



 


27

















 


***


 


28

















 


ADP/ICS

PE LITE BALLOT
CONFIRMATION


INTERFACE FILE REQUIREMENTS

‘31’


 


 


Version 1.0 

September 16, 2003


 

















 


PE LITE BALLOT CONFIRMATION

INCOMING RECORD LAYOUT


 


TABLE OF CONTENTS


 


	
  SECTION

  	
   

  	
   

  	
  PAGE

  
	
  1.

  	
   

  	
  LEAD RECORD LAYOUT

  	
  3

  
	
  2.

  	
   

  	
  LEAD RECORD SUMMARY

  	
  4

  
	
  3.

  	
   

  	
  PE LITE BALLOT CONFIRMATION INFORMATION

  	
  5

  



 


2

















 


***


 


3

















 


ADP/ICS 

ISS DOMESTIC VOTE

INTERFACE FILE REQUIREMENTS

‘180’


 


 


Version 1.1 

October 17, 2003


 


36

















 


ISS DOMESTIC VOTE 

INCOMING RECORD LAYOUT


 


TABLE OF CONTENTS


 


	
  SECTION

  	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  HEADER
  RECORD LAYOUT

  	
  38

  
	
  2.

  	
   

  	
  HEADER
  RECORD SUMMARY

  	
  39

  
	
  3.

  	
   

  	
  DETAIL
  RECORD LAYOUT

  	
  40

  
	
  4.

  	
   

  	
  DETAIL
  RECORD SUMMARY

  	
  41

  
	
  5.

  	
   

  	
  TRAILER
  RECORD LAYOUT

  	
  43

  
	
  6.

  	
   

  	
  TRAILER
  RECORD SUMMARY

  	
  44

  
	
  7.

  	
   

  	
  ISS
  DOMESTIC VOTE INFORMATION 

  	
  45

  



 


37

















 


***


 


38

















 


ADP/ICS 

ISS GLOBAL VOTE

INTERFACE FILE REQUIREMENTS

‘250’


 


 


Version 1.1 

October 17, 2003


 


46

















 


ISS GLOBAL VOTE 

INCOMING RECORD LAYOUT


 


TABLE OF CONTENTS


 


	
  SECTION

  	
   

  	
   

  	
  PAGE

  
	
  1.

  	
   

  	
  HEADER
  RECORD LAYOUT

  	
  48

  
	
  2.

  	
   

  	
  HEADER
  RECORD SUMMARY

  	
  49

  
	
  3.

  	
   

  	
  DETAIL
  RECORD LAYOUT

  	
  50

  
	
  4.

  	
   

  	
  DETAIL
  RECORD SUMMARY

  	
  51

  
	
  5.

  	
   

  	
  TRAILER
  RECORD LAYOUT

  	
  54

  
	
  6.

  	
   

  	
  TRAILER
  RECORD SUMMARY

  	
  55

  
	
  7.

  	
   

  	
  ISS
  GLOBAL VOTE INFORMATION

  	
  56

  



 


47

















 


***


 


48

















 


Annex II


 

















 


Annex II


ISS Vote Instruction Returned via the Consolidated Datafeed


 


	
  Year

  	
   

  	
  Price Per Vote Instruction(1)

  	
   

  	
  Volume

  	
   

  
	
  Year 1

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Year 2

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Year 3

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Year 4

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Year 5

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
  Year 6

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Year 7

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Year 8

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Each Renewal Term Year

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






(1)   The Price Per Vote Instruction set forth in
this column may be reduced from time to time pursuant to Section 8.1.