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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
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ARTICLE I.
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DEFINITIONS
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1 |
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Section 1.1
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Certain Definitions
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1 |
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Section 1.2
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Additional Definitions
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ARTICLE II.
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ORDER FLOW
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7 |
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Section 2.1
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Direction and Routing of
Orders
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7 |
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Section 2.2
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Customer Complaints
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9 |
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Section 2.3
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Execution Quality
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9 |
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Section 2.4
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Customer Disclosure, Segregation and
Responsibility
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10 |
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Section 2.5
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Order Transmission Procedures and
Requirements
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ARTICLE III.
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PAYMENTS
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Section 3.1
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Timing and Amount of Payments by the
Company
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11 |
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Section 3.2
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Reports and Other Information
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12 |
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Section 3.3
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Manner of Payments
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12 |
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Section 3.4
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Interest on Late Payments
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12 |
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Section 3.5
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Books of Account
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12 |
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ARTICLE IV.
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CONFIDENTIAL INFORMATION
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12 |
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Section 4.1
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Confidential Information
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12 |
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Section 4.2
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Communications with
Regulators
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13 |
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Section 4.3
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Identification of Parent
Customers
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14 |
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ARTICLE V.
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REPRESENTATIONS AND WARRANTIES;
COVENANTS; LIMITATION ON LIABILITY
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14 |
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Section 5.1
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Representations and
Warranties
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14 |
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Section 5.2
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Limitation on Liability
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15 |
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Section 5.3
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Disclaimer Of Warranties
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15 |
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Section 5.4
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Covenants
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15 |
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Section 5.5
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Change of Control of Parent
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16 |
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Section 5.6
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Material Transactions
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16 |
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Section 5.7
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Liquidated Damages
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17 |
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ARTICLE VI.
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INDEMNIFICATION
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18 |
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Section 6.1
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Company Indemnification
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Section 6.2
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Parent Indemnification
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Section 6.3
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Procedures Relating to Third Party
Claims
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Section 6.4
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Survival
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Section 6.5
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Limitation on Recovery
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19 |
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Section 6.6
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Exclusive Remedy
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ARTICLE VII.
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SECURITY
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20 |
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Section 7.1
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In General
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20 |
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Section 7.2
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Security Breaches
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20 |
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Section 7.3
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Storage of Customer
Information
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ARTICLE VIII.
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TERM AND TERMINATION
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20 |
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Section 8.1
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Term
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20 |
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Section 8.2
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Termination
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21 |
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Section 8.3
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Effects of Termination on Accrued
Rights
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23 |
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Section 8.4
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Continuation of Routing
Service
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23 |
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Section 8.5
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Survival
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ARTICLE IX.
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MISCELLANEOUS
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Section 9.1
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Use of Names/Marks
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ii
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Section 9.2
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Entire Agreement
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24 |
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Section 9.3
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Descriptive Headings; Certain
Interpretations
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24 |
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Section 9.4
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Notices
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25 |
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Section 9.5
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Counterparts; Fax Signatures
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26 |
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Section 9.6
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Benefits of Agreement
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26 |
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Section 9.7
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Amendments and Waivers
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26 |
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Section 9.8
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Assignment
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26 |
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Section 9.9
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Governing Law
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26 |
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Section 9.10
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Consent to Jurisdiction
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26 |
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Section 9.11
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Registration and Filing of this
Agreement
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27 |
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Section 9.12
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Force Majeure
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27 |
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Section 9.13
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Waiver
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28 |
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Section 9.14
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Relationship of the Parties
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28 |
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Section 9.15
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Bona Fide Customers
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28 |
iii
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.
2
(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.
3
(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.
5
(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:
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Term
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Location
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Acquiring Person
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Section 1.1(g) |
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Agreement
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Preamble |
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Company
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Preamble |
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Company Indemnified Parties
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Section 6.2 |
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Company Services
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Preamble |
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Cure Period
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Section 8.2(a) |
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Disclosing Party
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Section 4.1(a) |
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E*TRADE Securities
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Preamble |
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End Date
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Section 8.4 |
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Execution Quality Committee
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Section 2.3(c) |
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Force Majeure
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Section 9.12 |
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Indemnification Notice
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Section 6.3 |
6
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Indemnified Parties
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Section 6.2 |
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Indemnifying Party
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Section 6.3 |
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Investment Agreement
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Preamble |
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Liquidated Damages Amount
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Section 5.7(a) |
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Losses
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Section 6.1 |
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Order Flow Change
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Section 2.3(d) |
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Other Parties
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Section 9.12 |
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Parent
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Preamble |
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Parent Cure Period
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Section 8.2(b) |
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Parent Indemnified Parties
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Section 6.1 |
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Parties
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Preamble |
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Party
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Preamble |
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Proceeding
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Section 9.10 |
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Products Change
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Section 2.3(e) |
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Receiving Party
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Section 4.1(a) |
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Security Breach
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Section 7.2 |
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Term
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Section 8.1 |
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Termination Election Period
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Section 5.5(a) |
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Third Party Claim
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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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