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EQUITIES AND OPTIONS ORDER HANDLING AGREEMENT

Option Agreement

EQUITIES AND OPTIONS ORDER HANDLING AGREEMENT | Document Parties: E TRADE FINANCIAL CORP | CITADEL DERIVATIVES GROUP LLC | Citadel Investment Group, LLC | Citadel Limited Partnership You are currently viewing:
This Option Agreement involves

E TRADE FINANCIAL CORP | CITADEL DERIVATIVES GROUP LLC | Citadel Investment Group, LLC | Citadel Limited Partnership

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Title: EQUITIES AND OPTIONS ORDER HANDLING AGREEMENT
Governing Law: New York     Date: 2/28/2008
Industry: Investment Services     Law Firm: Davis Polk;Fried Frank     Sector: Financial

EQUITIES AND OPTIONS ORDER HANDLING AGREEMENT, Parties: e trade financial corp , citadel derivatives group llc , citadel investment group  llc , citadel limited partnership
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Exhibit 10.29

EXECUTION VERSION

EQUITIES AND OPTIONS ORDER HANDLING AGREEMENT

dated as of November 29, 2007

by and among

E*TRADE FINANCIAL CORPORATION,

E*TRADE SECURITIES LLC, and

CITADEL DERIVATIVES GROUP LLC

 


TABLE OF CONTENTS

 

                 Page

ARTICLE I.

 

DEFINITIONS

   1
 

Section 1.1

   

Certain Definitions

   1
 

Section 1.2

   

Additional Definitions

   6

ARTICLE II.

 

ORDER FLOW

   7
 

Section 2.1

   

Direction and Routing of Orders

   7
 

Section 2.2

   

Customer Complaints

   9
 

Section 2.3

   

Execution Quality

   9
 

Section 2.4

   

Customer Disclosure, Segregation and Responsibility

   10
 

Section 2.5

   

Order Transmission Procedures and Requirements

   11

ARTICLE III.

 

PAYMENTS

   11
 

Section 3.1

   

Timing and Amount of Payments by the Company

   11
 

Section 3.2

   

Reports and Other Information

   12
 

Section 3.3

   

Manner of Payments

   12
 

Section 3.4

   

Interest on Late Payments

   12
 

Section 3.5

   

Books of Account

   12

ARTICLE IV.

 

CONFIDENTIAL INFORMATION

   12
 

Section 4.1

   

Confidential Information

   12
 

Section 4.2

   

Communications with Regulators

   13
 

Section 4.3

   

Identification of Parent Customers

   14

ARTICLE V.

 

REPRESENTATIONS AND WARRANTIES; COVENANTS; LIMITATION ON LIABILITY

   14
 

Section 5.1

   

Representations and Warranties

   14
 

Section 5.2

   

Limitation on Liability

   15

 

i

 


 

Section 5.3

   

Disclaimer Of Warranties

   15
 

Section 5.4

   

Covenants

   15
 

Section 5.5

   

Change of Control of Parent

   16
 

Section 5.6

   

Material Transactions

   16
 

Section 5.7

   

Liquidated Damages

   17

ARTICLE VI.

 

INDEMNIFICATION

   18
 

Section 6.1

   

Company Indemnification

   18
 

Section 6.2

   

Parent Indemnification

   18
 

Section 6.3

   

Procedures Relating to Third Party Claims

   18
 

Section 6.4

   

Survival

   19
 

Section 6.5

   

Limitation on Recovery

   19
 

Section 6.6

   

Exclusive Remedy

   19

ARTICLE VII.

 

SECURITY

   20
 

Section 7.1

   

In General

   20
 

Section 7.2

   

Security Breaches

   20
 

Section 7.3

   

Storage of Customer Information

   20

ARTICLE VIII.

 

TERM AND TERMINATION

   20
 

Section 8.1

   

Term

   20
 

Section 8.2

   

Termination

   21
 

Section 8.3

   

Effects of Termination on Accrued Rights

   23
 

Section 8.4

   

Continuation of Routing Service

   23
 

Section 8.5

   

Survival

   23

ARTICLE IX.

 

MISCELLANEOUS

   24
 

Section 9.1

   

Use of Names/Marks

   24

 

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Section 9.2

   

Entire Agreement

   24
 

Section 9.3

   

Descriptive Headings; Certain Interpretations

   24
 

Section 9.4

   

Notices

   25
 

Section 9.5

   

Counterparts; Fax Signatures

   26
 

Section 9.6

   

Benefits of Agreement

   26
 

Section 9.7

   

Amendments and Waivers

   26
 

Section 9.8

   

Assignment

   26
 

Section 9.9

   

Governing Law

   26
 

Section 9.10

   

Consent to Jurisdiction

   26
 

Section 9.11

   

Registration and Filing of this Agreement

   27
 

Section 9.12

   

Force Majeure

   27
 

Section 9.13

   

Waiver

   28
 

Section 9.14

   

Relationship of the Parties

   28
 

Section 9.15

   

Bona Fide Customers

   28

 

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EQUITIES AND OPTIONS ORDER HANDLING AGREEMENT

This EQUITIES AND OPTIONS ORDER HANDLING AGREEMENT, dated as of November 29, 2007 (this “ Agreement ”), by and among CITADEL DERIVATIVES GROUP LLC, a Delaware limited liability company (“the “ Company ”), E*TRADE SECURITIES LLC, a Delaware limited liability company (“ E*TRADE Securities ”), and E*TRADE FINANCIAL CORPORATION, a Delaware corporation (“ Parent ”) (each individually a “ Party ” and together the “ Parties ”).

WHEREAS, Parent and Affiliates of the Company have entered into that certain Investment and Securities Purchase Agreement, dated as of November 29, 2007 (the “ Investment Agreement ”), which provides for, among other things, the issuance by Parent to Affiliates of the Company of certain debt and equity securities and the purchase by an Affiliate of the Company of certain assets from the bank Affiliate of Parent; and

WHEREAS, Parent and the Company at the Initial Closing (as defined in the Investment Agreement) are entering into this Agreement which sets forth the terms upon which Parent and its Affiliates will route Covered Orders to the Company and the Company will provide to Parent and its Affiliates routing, order handling and execution services for such Covered Orders (the “ Company Services ”).

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein and in the Investment Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Parties hereto agree as follows:

ARTICLE I.

DEFINITIONS

Section 1.1 Certain Definitions . In this Agreement, the following words and phrases shall have the following meanings:

(a) “ Adverse Reputational Event ” shall mean, with respect to a Person, (i) a conviction of such Person for a felony or a plea of guilty or nolo contendere to a felony by such Person, which in either case is final and non-appealable, or a disqualification, suspension or temporary or permanent bar imposed on such Person by the Securities and Exchange Commission or any SRO for misconduct that prohibits such Person from acting generally as a Broker-Dealer, if such disqualification or bar continues for more than 90 days or (ii) a plea or consent to the entry of an order by the Securities and Exchange Commission, a court of competent jurisdiction, an SRO or a state securities regulator that includes a finding that such Person engaged in intentional wrongdoing (with scienter) or fraud (with scienter) in the execution of customer orders as a market maker or order router.

 


(b) “ Affiliate ” of a Person shall mean any Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person.

(c) “ Broker-Dealer ” shall mean a Person registered as a broker or dealer under Section 15 of the Securities Exchange Act.

(d) “ Business Day ” means a day other than a Saturday or Sunday or other day on which banks located in New York, New York are authorized or required by law to close.

(e) “ Change in Control of E*TRADE Capital Markets ” shall mean a direct or indirect change in control of E*TRADE Capital Markets, LLC or an Affiliate of E*TRADE Capital Markets, LLC that has the effect of disposing of more than fifty percent (50%) of the assets of its market making business for Covered Orders to a Person (other than an Affiliate of E*TRADE Capital Markets).

(f) “ Change of Control of the Company ” means a direct or indirect change of control of the Company or an Affiliate of the Company that has the effect of disposing of more than fifty percent (50%) of the assets of the execution business for Covered Orders (i) to a Person (other than an Affiliate of the Company) that is a direct competitor of Parent in a business segment which represents twenty-five percent (25%) or more of Parent’s gross annual revenues and twenty-five percent (25%) or more of such Person’s gross annual revenues, or (ii) to a Person (other than an Affiliate of the Company) that is not of sound financial standing and business reputation.

(g) “ Change of Control of Parent ” shall mean an event where Parent consummates a merger, consolidation, reorganization or similar transaction or series of related transactions, including a third-party tender offer, whether direct or indirect, with another Person, including such other Person’s Affiliates (the “ Acquiring Person ”), in which fifty percent (50%) or more of the voting power of the outstanding voting securities of the combined company following such transaction is held by Persons who were shareholders of the Acquiring Person immediately prior to such transaction.

(h) “ Confidential Information ” shall mean all information disclosed in connection with, or arising out of a Party’s obligations under this Agreement including (i) technology and intellectual property, such as systems, source code, databases (including their design), hardware, software, programs, applications, engine protocols, routines, manuals, displays, designs, descriptions, procedures, formulas, discoveries, inventions, specifications, drawings, sketches, models, samples, codes, improvements, concepts, ideas and past, present and future research and development; (ii) any unpublished information concerning research activities and plans, marketing or sales plans, pricing or pricing strategies, operational techniques, strategic plans, and unpublished financial information, including information concerning revenues, profits and profit margins; (iii) this Agreement including its terms; and (iv) Customer Information; provided that “confidential information” shall not include any information or material set forth in Section 4.1(c) of this Agreement.

 

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(i) “ Covered Order ” shall mean an instruction, other than an instruction with respect to an Excluded Order, to buy or sell that is placed with Parent or an Affiliate of Parent by, for or on behalf of a Parent Customer, for (i) any NMS Security; or (ii) any other type of security mutually agreed upon by the Company or Parent. For the avoidance of doubt, as defined below in paragraph 1.1(y), NMS Security includes both equities and Options.

(j) “ Customer Information ” shall mean (i) all information disclosed by or to the Company, on the one hand, to or by Parent, on the other hand, in connection with this Agreement, which identifies Parent Customers or the Company’s customer(s), including account numbers, or (ii) any information collected by the Company through the Company Services described herein, which identifies customer(s) individually or in the aggregate, including any data regarding Covered Orders, individually or in the aggregate. !

(k) “ Directed Order ” shall mean a Covered Order where a Parent Customer or Registered Representative (based on an instruction from a Parent Customer) placing such Covered Order specifically instructs (through electronic, telephonic or other means) that such Covered Order be routed to a particular venue or platform for execution (e.g., an Exchange, a market center or a Broker-Dealer) other than the Company or any of its Affiliates.

(l) “ Exchange ” shall mean any national securities exchange registered under Section 6 of the Securities Exchange Act and any national securities association within the meaning of Section 15A of the Securities Exchange Act.

(m) “ Excluded Order ” shall mean (i) any Order placed by, for, or on behalf of any “investment company” that is registered under the Investment Company Act of 1940, as amended, that is advised or managed by Parent or any of its Affiliates; or (ii) any Order placed by a Parent Customer that is an investment adviser affiliated with Parent, to the extent that the routing of such Order to the Company under this Agreement would be prohibited under applicable law.

(n) “ Execution Quality Service Levels ” shall mean the service levels set forth on Schedule A to this Agreement (which is incorporated herein by reference), as may be amended from time to time by the Parties in accordance with this Agreement, including Schedule A to this Agreement.

(o) “ Existing Order Flow ” shall mean Orders routed by Parent and its Affiliates for the twelve (12) months prior to the date of this Agreement.

(p) “ Existing Products ” shall mean the product types offered by Parent and its Affiliates on the date of this Agreement.

 

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(q) “ Failure Notice ” shall mean a written communication from E*TRADE Securities to the Company, which is explicitly identified as a Failure Notice, and which states E*TRADE Securities’ reasonable belief that the Company’s execution performance has been unsatisfactory.

(r) “ Governmental Entity ” shall mean any court, administrative agency or commission or other governmental, prosecutorial or regulatory authority or instrumentality or SRO.

(s) “ Insolvency Event ” shall mean any of the following: (i) a court or Governmental Entity having jurisdiction shall have entered a decree or order for relief in respect of a Party in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or shall have appointed a receiver, liquidator, trustee (or similar official) for a Party or for any substantial part of its or their property or ordered the winding up or liquidation of its affairs, or (ii) there shall have been commenced against a Party an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or any case, proceeding or other action for the appointment of a receiver, liquidator, trustee (or similar official) for a Party or for any substantial part of its or their property or for the winding up or liquidation of its or their affairs, and such involuntary case or other case, proceeding or other action shall remain undismissed or undischarged for a period of sixty (60) consecutive calendar days following the filing date thereof or (iii) a Party shall have commenced a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consented to the entry of an order for relief in an involuntary case under any such law, or consented to the appointment or taking possession by a receiver, liquidator, trustee (or similar official) for a Party or for any substantial part of its or their property or made any general assignment for the benefit of creditors.

(t) “ Legal Proceeding ” shall mean any action, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, inquiry, audit, examination or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other Governmental Entity or any arbitrator or arbitration panel.

(u) “ Legal Requirements ” shall mean any national, state, local or similar laws (whether under statute, rule, regulation or otherwise); requirements of Governmental Entities (including any requirement imposed by the Securities and Exchange Commission or any SRO of which a Party is a member); federal and state privacy, confidentiality, consumer protection, advertising, electronic mail and data security laws and regulations, whether in effect now or in the future; and requirements under permits, orders, decrees or directives that are binding on the Person in question.

(v) “ Material Legal Shift ” shall mean any Legal Requirement that does not exist as of the date of this Agreement (whether by reason of the adoption,

 

4

 


amendment or promulgation of any law, regulation or order, the repeal, lapse or striking down of any law, regulation or order, or any change in the interpretation of any law, regulation or order by any Governmental Entity) and that prohibits or materially restricts or limits (i) the routing or execution of Covered Orders as provided in this Agreement, (ii) payments pursuant to Article III, or (iii) any other material term of this Agreement. For the avoidance of doubt, a Material Legal Shift may include material changes to the pricing methodologies of Exchanges or market practices with respect to payment for order flow.

(w) “ Material Transaction ” shall mean, with respect to Parent, an acquisition of assets or stock of another Person, whether pursuant to a merger or similar transaction (other than a Change of Control of Parent), a partnership, joint venture or similar business combination or relationship with another Person.

(x) “ Minimum Covered Orders ” shall mean, with respect to any time period, at least (i) ninety-seven and a half percent (97.5%) of Covered Orders in Options, and (ii) forty percent (40%) of Covered Orders in NMS Stocks for such time period.

(y) “ NMS Security ” shall have the same definition as in Rule 600(b)(46) of Regulation NMS under the Securities Exchange Act, which for the avoidance of doubt includes both equity securities for which transaction reports are collected, processed and made available pursuant to an effective transaction reporting plan, and Options.

(z) “ NMS Stock ” shall have the same definition as in Rule 600(b)(47) of Regulation NMS under the Securities Exchange Act, which for the avoidance of doubt includes equity securities for which transaction reports are collected, processed and made available pursuant to an effective transaction reporting plan, but excludes Options.

(aa) “ Option ” shall mean any option contract that is listed on an Exchange.

(bb) “ Order ” shall mean an instruction to buy or sell securities that is placed with Parent or an Affiliate of Parent by, for or on behalf of a Parent Customer.

(cc) “ Parent Customer ” shall mean a customer or client of Parent or an Affiliate of Parent, including any investment adviser with customer accounts custodied at Parent or an Affiliate of Parent.

(dd) “ Partial Termination ” shall mean a termination of this Agreement with respect to either (i) NMS Stock, or (ii) Options, pursuant to Section 8.2(k), 8.2(l), or 8.2(m). For the avoidance of doubt, in the event of a Partial Termination, this Agreement will continue in all other respects concerning the class of securities (either NMS Stock or Options) that was not the subject of such Partial Termination.

 

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(ee) “ Person ” shall mean any individual, corporation, partnership, limited liability company, association, joint venture, trust, Governmental Entity or other entity or organization.

(ff) “ Registered Representative ” shall mean a registered representative of a Broker-Dealer.

(gg) “ Securities Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended, including the rules and regulations thereunder.

(hh) “ SRO ” shall mean any securities industry self-regulatory organization, as defined in Section 3(a)(26) of the Securities Exchange Act.

(ii) “ Successor Entity ” shall mean (i) with respect to a Change of Control of Parent, the surviving entity resulting from such Change of Control of Parent; or (ii) with respect to a Material Transaction, the combined entity resulting from the consummation of such Material Transaction by Parent.

Section 1.2 Additional Definitions . In addition, the following defined terms have the meaning set forth in the indicated Section:

 

Term

  

Location

Acquiring Person

   Section 1.1(g)

Agreement

   Preamble

Company

   Preamble

Company Indemnified Parties

   Section 6.2

Company Services

   Preamble

Cure Period

   Section 8.2(a)

Disclosing Party

   Section 4.1(a)

E*TRADE Securities

   Preamble

End Date

   Section 8.4

Execution Quality Committee

   Section 2.3(c)

Force Majeure

   Section 9.12

Indemnification Notice

   Section 6.3

 

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Indemnified Parties

   Section 6.2

Indemnifying Party

   Section 6.3

Investment Agreement

   Preamble

Liquidated Damages Amount

   Section 5.7(a)

Losses

   Section 6.1

Order Flow Change

   Section 2.3(d)

Other Parties

   Section 9.12

Parent

   Preamble

Parent Cure Period

   Section 8.2(b)

Parent Indemnified Parties

   Section 6.1

Parties

   Preamble

Party

   Preamble

Proceeding

   Section 9.10

Products Change

   Section 2.3(e)

Receiving Party

   Section 4.1(a)

Security Breach

   Section 7.2

Term

   Section 8.1

Termination Election Period

   Section 5.5(a)

Third Party Claim

   Section 6.3

ARTICLE II.

ORDER FLOW

Section 2.1 Direction and Routing of Orders .

(a) Covered Orders and Company Services . Except as otherwise set forth in this Agreement or in Schedule A , Parent shall, and shall cause its Affiliates to,

 

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route at least the Minimum Covered Orders to the Company for the Company Services and the Company shall, in its sole discretion, determine to execute such Covered Orders either as principal or by acting as riskless principal or agent, including, where applicable, determining the market center for execution of such Covered Orders, in any case in accordance with Section 2.3. The Company shall provide the Company Services for the Covered Orders that are routed to it in accordance with this Section 2.1(a). Nothing herein shall limit the ability of Parent to route Covered Orders in excess of the Minimum Covered Orders to the Company.

(b) Parent’s Alternate Connectivity . Parent may maintain alternate connectivity for routing of Covered Orders in NMS Stocks or Options to Exchanges, market centers or other Broker-Dealers, and Parent shall be permitted to route to such Exchanges, market centers or other Broker-Dealers the minimum number of Covered Orders needed to maintain such connectivity; provided , that Parent and its Affiliates route to the Company at least the Minimum Covered Orders in accordance with Section 2.1(a). The composition of Covered Orders in Options for such alternate routing shall be a neutral sample representative of the broad cross section of all Covered Orders in Options. Any Covered Orders in Options that are routed to any Exchange, market center or Broker-Dealer pursuant to this Section 2.1(b) shall count toward the two and one half percent (2.5%) of Covered Orders in Options that Parent is permitted to exclude from the Covered Orders in Options that Parent and its Affiliates are required to route to the Company and its Affiliates under this Agreement. Any Covered Orders in NMS Stocks that are routed to any Exchange, market center or Broker-Dealer pursuant to this Section 2.1(b) shall count toward the sixty percent (60%) of Covered Orders in NMS Stocks that Parent is permitted to exclude from the Covered Orders in NMS Stocks that Parent and its Affiliates are required to route to the Company and its Affiliates under this Agreement.

(c) Securities Exchange Act Compliance . The Company covenants and agrees to provide to Parent or any of its Affiliates such information as it requires to prepare and publish its disclosures required by Rule 606 of Regulation NMS of the Securities Exchange Act with respect to the routing of Covered Orders to the Company. Further, the Company and Parent shall cooperate to design their respective order routing and reporting processes such that the venues where Covered Orders (or portions thereof) are ultimately executed can be identified and reported on Parent’s or any of its Affiliate’s required disclosures pursuant to Rule 606 of Regulation NMS of the Securities Exchange Act consistent with Legal Requirements.

(d) Order Book . The Company shall maintain a good-til-cancelled order book for open Orders that remain in effect until executed or cancelled.

(e) NMS Stock Orders in Excess of Minimum Covered Orders . Parent shall not, and shall ensure that its Affiliates do not, directly or indirectly accept any “payment for order flow” (as defined in Rule 10b-10(d)(8) of the Securities Exchange Act) from any market maker, other than the Company, with respect to Covered Orders in

 

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NMS Stocks. For the avoidance of doubt, Parent shall not, and shall cause its Affiliates not to, take any actions that are intended, designed or that would reasonably be expected to circumvent the terms or intention of this Section 2.1(e).

Section 2.2 Customer Complaints . The Company shall cooperate in good faith with Parent to attempt to resolve any complaints from Parent Customers or Registered Representatives.

Section 2.3 Execution Quality Service Levels .

(a) The Company shall use commercially reasonable efforts, consistent with its duty of best execution, to obtain the most favorable terms reasonably available for Covered Orders to fulfill the Execution Quality Service Levels set forth in Schedule A to this Agreement as may be modified pursuant to this Section 2.3 or Schedule A to this Agreement.

(b) The Company and Parent and/or E*TRADE Securities may, from time to time, mutually agree in writing on changes to the Execution Quality Service Levels, including those changes contemplated by Schedule A to this Agreement.

(c) The Company and Parent shall establish a committee (the “ Execution Quality Committee ”) to provide a forum for discussion regarding routing and execution practices and resolution of disputes with respect to Covered Orders. In no event shall the Execution Quality Committee have the power to bind any Party (including the power to amend or otherwise alter the terms of this Agreement).

(d) Following the date of this Agreement, if the aggregate mix of Covered Order types or the aggregate mix of the types of securities, customers or commission levels underlying the Covered Orders routed to the Company shall materially change from the Existing Order Flow (such material change, an “ Order Flow Change ”), the Company and Parent and/or E*TRADE Securities shall discuss in good faith and reasonably agree in writing on changes to this Agreement, including the Execution Quality Service Levels, that would allow them to preserve, as equitably as possible, their respective commercial expectations in respect of this Agreement as of the date of this Agreement, notwithstanding such Order Flow Change. It is understood that the Parties, in agreeing to such changes to this Agreement, shall also reasonably agree in writing to modify the definition of Existing Order Flow to reflect the Order Flow Change.

(e) Following the date of this Agreement, if the transaction product types offered or otherwise made available by Parent or any of its Affiliates shall materially change from the Existing Products (such material change, a “ Products Change ”) the Company and Parent and/or E*TRADE Securities shall discuss in good faith and reasonably agree in writing on changes to this Agreement, including the Execution Quality Service Levels, that would allow them to preserve, as equitably as possible, their respective commercial expectations in respect of this Agreement as of the date of this Agreement, notwithstanding such Products Change. It is understood that the Parties, in agreeing to such changes to this Agreement, shall also reasonably agree in writing to modify the definition of Existing Products to reflect the Products Change.

 

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(f) Following the date of this Agreement, if there shall occur a Material Legal Shift that materially affects the commercial expectations of the parties hereto in respect of this Agreement, including the Execution Quality Service Levels, the Company and Parent and/or E*TRADE Securities shall discuss in good faith and reasonably agree in writing on changes to this Agreement, including the Execution Quality Service Levels, that would allow them to preserve, as equitably as possible, their respective commercial expectations in respect of this Agreement as of the date of this Agreement, notwithstanding such Material Legal Shift. For the avoidance of doubt, a Material Legal Shift may include an increase in the number of Option classes that are generally quoted in penny increments, or material changes to the pricing methodologies of Exchanges.

(g) In the event that, following good faith discussions pursuant to any of Section 2.3(d), Section 2.3(e) and Section 2.3(f), the Company and Parent and/or E*TRADE Securities are unable to reasonably agree on the appropriate changes to this Agreement or any part hereof, any Party hereto shall be entitled to terminate this Agreement by providing written notice of such termination to the other Parties; provided , that upon any such termination, Parent shall pay to the Company, and the Company shall be entitled to receive, the Liquidated Damages Amount pursuant to Section 5.7.

(h) Parent and Company shall assess Company Services in accordance with the methodology set forth in Schedule A to this Agreement in conformance with their respective duties of best execution.

Section 2.4 Customer Disclosure, Segregation and Responsibility .

(a) The Parties shall use commercially reasonable efforts not to publish or make any communication or take any other action that would reasonably lead a Parent Customer to conclude that such Parent Customer is a customer of the Company or any of its Affiliates.

(b) As between Parent and the Company, when Parent or any of its Affiliates routes a Covered Order to the Company,

(i) the Covered Order shall be originated by, and for the account of, a Parent Customer or other account holder of Parent;

(ii) for purposes of all Legal Requirements (except as otherwise expressly provided therein), the accounts for which Covered Orders are routed are “customers” of Parent or an Affiliate thereof and not of the Company; and

(iii) Parent shall be solely responsible for all obligations relating to the opening and maintenance of customer accounts, including without limitation compliance with “know your customer,” confirmation and account statement delivery, and anti-money laundering requirements.

 

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Section 2.5 Order Transmission Procedures and Requirements .

(a) Parent shall transmit Covered Orders to the Company using existing data formats, transmission protocols and methods, except as otherwise mutually agreed upon in writing by Parent and the Company.

(b) Parent shall be solely responsible for all acts and omissions of persons transmitting Covered Orders on its behalf and shall be bound by the terms of all Covered Orders transmitted to the Company.

(c) Parent acknowledges that it is its responsibility to ensure that any Covered Order transmitted to the Company complies with all Legal Requirements (including short sale rules under the Securities Exchange Act and applicable SRO rules) and policies or interpretations thereof. Parent shall be responsible for properly designating any short sale as “short” and for obtaining a “locate” or affirmative determination of securities for delivery prior to transmitting any Covered Order.

(d) Parent shall be solely responsible for the cost of hardware, software communications equipment and communications lines, including any data lines or internet access necessary to maintain connectivity to the Company’s systems for receipt of Covered Orders. The Company shall be solely responsible for the cost of hardware, software, communications equipment and communications lines, including any data lines or internet access necessary to operate the routing and executions system for Covered Orders received by the Company and to maintain connectivity to Exchanges and other market centers.

(e) Parent shall ensure that all Covered Orders in Options are transmitted to the Company in a random manner, such that the composition of Covered Orders in Options received by the Company is representative of a broad cross section of Covered Orders in Options handled by Parent or any of its Affiliates.

ARTICLE III.

PAYMENTS

Section 3.1 Timing and Amount of Payments by the Company . During the term of this Agreement, the Company shall make a volume-based payment to Parent on a monthly basis as provided for in Schedule B within thirty (30) days after the last day of each month.

 

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Section 3.2 Reports and Other Information .

(a) Subject to Article IV, the Company shall provide to Parent, on the one hand, or Parent shall provide to the Company, on the other hand, such data as Parent or the Company, as the case may be, reasonably requests to confirm the calculations with respect to Covered Orders pursuant to the provisions of this Agreement.

(b) Following the date of this Agreement, Parent shall, as promptly as practicable, provide the Company with reasonably detailed information of any development or other fact that has caused or would be reasonably expected to cause an Order Flow Change or a Products Change, as well as reasonably detailed information to assess any such Order Flow Change or Products Change.

Section 3.3 Manner of Payments . All sums due to Parent under this Article III shall be paid in U.S. Dollars by bank wire transfer in immediately available funds to such bank account(s) as Parent shall designate from time to time by giving notice to the Company.

Section 3.4 Interest on Late Payments . If the Company shall fail to make a timely payment pursuant to this Article III, such late payment shall bear interest, to the greatest extent permitted by applicable law, at the prime rate (as published in the New York edition of the Wall Street Journal or a comparable publication if not reported in the New York edition of the Wall Street Journal for the date the payment was due), effective for the first date on which payment was delinquent and calculated on the number of days such payment is overdue.

Section 3.5 Books of Account . Each of the Company and Parent shall maintain true and complete books of account containing an accurate record of all data necessary for reports due hereunder and for the proper computation of payments due from it or charges made by it under this Agreement.

ARTICLE IV.

CONFIDENTIAL INFORMATION

Section 4.1 Confidential Information .

(a) In furtherance of this Agreement, Parent may disclose Confidential Information, including Customer Information, to the Company, and the Company and its Affiliates may disclose Confidential Information, including Customer Information, to Parent. Confidential Information shall be deemed confidential and proprietary to the Party disclosing the Confidential Information (the “ Disclosing Party ”), regardless of whether such information was disclosed intentionally or unintentionally or marked as “confidential” or “proprietary.” Confidential Information, including copies, shall be deemed to be the exclusive property of the Disclosing Party. The Disclosing Party’s disclosure of Confidential Information shall not constitute an express or implied grant to the Party receiving the Confidential Information (the “ Receiving Party ”) of any rights to or under the Disclosing Party’s patents, patent applications, copyrights, trade secrets, trademarks or other intellectual property rights.

 

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(b) The Receiving Party covenants that it shall not use the Confidential Information, including Customer Information, of the Disclosing Party for any purpose other than in performance of this Agreement or with respect to the Company’s operations and shall not disclose the same to any other Person other than to such of its Affiliates, employees, agents, advisers, representatives, consultants and counsel who have a need to know such Confidential Information as it relates to the purpose or subject matter of this Agreement. Each Party shall bear responsibility for a breach of confidentiality obligations contained in this Article IV by its Affiliates, employees, agents, representatives or consultants. The Receiving Party shall be entitled to retain copies of Confidential Information of the Disclosing Party to the extent required to comply with applicable Legal Requirements or to the extent consistent with the Receiving Party’s standard internal record retention policies. Upon termination of this Agreement, or earlier if so requested in writing by the Disclosing Party, except as permitted in the previous sentence, and exce


 
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