Exhibit 2.4

EXECUTION VERSION

SEPARATION AGREEMENT

by and among

CANTOR FITZGERALD, L.P.,

BGC PARTNERS, LLC,

BGC PARTNERS, L.P.,

BGC GLOBAL HOLDINGS, L.P.,

and

BGC HOLDINGS, L.P.

Dated as of March 31, 2008

 

---

TABLE OF CONTENTS

 

 

				Page
		ARTICLE I
		DEFINITIONS; INTERPRETATION
SECTION 1.01		Defined Terms		1
SECTION 1.02		Other Definitions		11
SECTION 1.03		Absence of Presumption		12
SECTION 1.04		Headings		12
		ARTICLE II
		CONTRIBUTION
SECTION 2.01		Contribution of Transferred Assets		12
SECTION 2.02		Assumption of Transferred Liabilities		14
SECTION 2.03		Actions to Effect the Contribution		15
SECTION 2.04		Closing		15
SECTION 2.05		Title; Risk of Loss		15
SECTION 2.06		Further Documentation		15
SECTION 2.07		Other Actions in Connection with the Contribution		15
		ARTICLE III
		NO REPRESENTATIONS OR WARRANTIES
SECTION 3.01		No Representations or Warranties		17
SECTION 3.02		BGC Partners to Bear Risk		17
		ARTICLE IV
		COVENANTS
SECTION 4.01		Further Assurances		17
SECTION 4.02		Information		19
SECTION 4.03		Production of Witnesses; Records; Cooperation		20
SECTION 4.04		Confidentiality		21
SECTION 4.05		Protective Arrangements		22
SECTION 4.06		Intercompany Agreements		22
SECTION 4.07		Guarantee Obligations		23
SECTION 4.08		Expenses		23
SECTION 4.09		New BGC Partners		23
SECTION 4.10		Commissions and Market Data; Clearing		23

 

---

SECTION 4.11		Reinvestments in the Opcos; Pre-Emptive Rights		24
SECTION 4.12		Distributions to Holders of BGC Partners Common Stock		28
SECTION 4.13		Intellectual Property License		28
		ARTICLE V
		SURVIVAL AND INDEMNIFICATION
SECTION 5.01		Survival of Agreements		29
SECTION 5.02		Indemnification by Cantor		29
SECTION 5.03		Indemnification by BGC Partners		29
SECTION 5.04		Indemnification by the Opcos		30
SECTION 5.05		Indemnification by Holdings		30
SECTION 5.06		Notice of Indemnity Claim		30
SECTION 5.07		Third-Party Claims		30
SECTION 5.08		Mitigation		32
SECTION 5.09		Allocation of Loss for Certain Matters		32
SECTION 5.10		Exclusive Remedies		32
SECTION 5.11		Merger Agreement Indemnification		32
		ARTICLE VI
		EMPLOYEE MATTERS
SECTION 6.01		Transfer of Business Employees		32
SECTION 6.02		Termination of Founding Partners		33
		ARTICLE VII
		TERMINATION
SECTION 7.01		Termination		33
SECTION 7.02		Effect of Termination		33
		ARTICLE VIII
		MISCELLANEOUS
SECTION 8.01		Entire Agreement		33
SECTION 8.02		Governing Law; Consent to Jurisdiction		33
SECTION 8.03		Amendment and Modification		34
SECTION 8.04		Successors and Assigns; No Third-Party Beneficiaries		34
SECTION 8.05		Notices		34
SECTION 8.06		Counterparts		35
SECTION 8.07		Waivers of Default		35

 

---

SEPARATION AGREEMENT

This SEPARATION AGREEMENT, dated as of March 31, 2008 (this “Agreement” ), is by and among Cantor Fitzgerald, L.P., a Delaware limited partnership ( “Cantor” ), BGC Partners, LLC, a Delaware limited liability company ( “BGC Partners” ), BGC Partners, L.P., a Delaware limited partnership ( “U.S. Opco” ), BGC Global Holdings, L.P., a Cayman Islands exempted limited partnership ( “Global Opco” ), BGC Holdings, L.P., a Delaware limited partnership ( “Holdings,” and together with Cantor, BGC Partners, U.S. Opco and Global Opco, the “Parties” and each, a “Party” ).

WITNESSETH:

WHEREAS, Cantor is engaged through certain of its Subsidiaries in the Inter-Dealer Brokerage Business, the Market Data Business, and the Fulfillment Business (such businesses, collectively referred to as the “Transferred Businesses” and each, a “Transferred Business” );

WHEREAS, the general partner of Cantor has determined that it is in the best interests of Cantor and its partners to separate the Transferred Businesses from the other businesses of Cantor (the “Retained Businesses” ) so that, as of the Closing Date, the Transferred Businesses are held by BGC Partners through its two operating subsidiaries, U.S. Opco and Global Opco, and the Subsidiaries of U.S. Opco and Global Opco, and so that the Retained Businesses are held by Cantor and its Subsidiaries (other than BGC Partners and its Subsidiaries);

WHEREAS, to effect such separation, Cantor desires to (and to cause its applicable Subsidiaries to) contribute, convey, transfer, assign and deliver to BGC Partners and its applicable Subsidiaries, and BGC Partners desires to (and to cause its applicable Subsidiaries to) accept and assume from Cantor and its applicable Subsidiaries, all of Cantor’s and its Subsidiaries’ right, title and interest in, to and under certain of the Assets and Liabilities relating to the Transferred Businesses, in each case on the terms and subject to the conditions of this Agreement (the “Contribution” ); and

WHEREAS, the Parties are entering into this Agreement to set forth the principal transactions required to effect, and the principal terms and conditions of, the Contribution.

NOW, THEREFORE, in consideration of the mutual promises hereinafter set forth and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound thereby, the Parties agree as follows:

ARTICLE I

DEFINITIONS; INTERPRETATION

SECTION 1.01 Defined Terms . For the purposes of this Agreement, the following terms shall have the following meanings:

 

---

“Action” means any action, claim, suit, litigation, proceeding (including arbitral) or investigation.

“Affiliate” means, with respect to any Person, any other Person that directly, or through one or more intermediaries, controls or is controlled by or is under common control with such Person; provided , however , that, for purposes of this Agreement, as of and after the Closing, no member of a Group shall be deemed to be an Affiliate of any member of another Group as a result of the control relationship between such members.

“Agreement” has the meaning set forth in the preamble, and includes any amendments or modifications to this Agreement after the date hereof.

“Ancillary Agreements” means, collectively, the New U.S. Opco Limited Partnership Agreement, the New Global Opco Limited Partnership Agreement, the New Holdings Limited Partnership Agreement, the Cantor Administrative Services Agreement, the Tower Bridge Administrative Services Agreement, Registration Rights Agreement and the Tax Receivable Agreement.

“Applicable Law” means any Law applicable to any of the Parties or any of their respective Affiliates, directors, officers, employees, properties or Assets.

“Asset” means any asset, property, right, Contract and claim, whether real, personal or mixed, tangible or intangible, of any kind, nature and description, whether accrued, contingent or otherwise, and wheresoever situated and whether or not carried or reflected, or required to be carried or reflected, on the books of any Person.

“BGC Partners” has the meaning set forth in the preamble (it being understood that, after the Merger, each reference to BGC Partners in this Agreement shall refer to the Surviving Company).

“BGC Partners Class A Common Stock” means the Class A common stock, par value $0.01 per share, of BGC Partners.

“BGC Partners Class B Common Stock” means the Class B common stock, par value $0.01 per share, of BGC Partners.

“BGC Partners Class C Common Stock” means the Class C common stock, par value $0.01 per share, of BGC Partners.

“BGC Partners Common Stock” means (a) prior to the Merger, the limited liability company interests of BGC Partners; and (b) on and after the Merger, the BGC Partners Class A Common Stock, the BGC Partners Class B Common Stock and BGC Partners Class C Common Stock, as applicable.

“BGC Partners Group” means BGC Partners and its Subsidiaries (other than Holdings and its Subsidiaries and the Opcos and their respective Subsidiaries).

“BGC Partners Indemnitees” has the meaning set forth in Section 5.02(a).

 

2

 

---

“BGC Partners Ratio” means, as of any time, the number equal to (a) the aggregate number of U.S. Opco Units held by the BGC Partners Group as of such time divided by (b) the aggregate number of shares of BGC Partners Common Stock issued and outstanding as of such time.

“Business Day” shall mean any day excluding Saturday, Sunday and any day on which banking institutions located in New York, New York are authorized or required by Applicable Law or other governmental action to be closed.

“Business Employee” means any individual who, immediately prior to the Closing, is employed by, engaged directly and primarily in or, after taking into account the services to be provided under the Cantor Administrative Services Agreement and the Tower Bridge Administrative Services Agreement, necessary for the conduct of a Transferred Business (including any such individuals on short-term or long-term disability leave or another approved leave of absence), other than any individual employed by the Cantor Companies primarily in a corporate function or executive level position who performs services for the Cantor Companies, eSpeed and BGC Partners Group.

“Cantor” has the meaning set forth in the preamble.

“Cantor Administrative Services Agreement” means the Administrative Services Agreement between Cantor and BGC Partners, substantially in the form attached as Exhibit A.

“Cantor Companies” means Cantor and its Subsidiaries (other than BGC Partners and any of its Subsidiaries). For the avoidance of doubt, any Transferred Entity shall not be treated as a Cantor Company after the Contribution.

“Cantor Group” means Cantor and its Subsidiaries (other than any member of the Holdings Group or the BGC Partners Group).

“Cantor Indemnitees” has the meaning set forth in Section 5.03(a).

“Change of Control of Cantor” means the consummation of any transaction involving any purchase or acquisition (by merger, recapitalization or otherwise) by a Person of (a) securities or contractual rights entitling such Person to elect the general partner or a majority of the governing body of Cantor, (b) the general partnership interest of Cantor, or (c) all or substantially all of the assets of Cantor and its Subsidiaries, taken together as a whole; provided , however , that any such purchase or acquisition shall not constitute a “Change of Control of Cantor” if and so long as (i) any entity controlled by Howard W. Lutnick shall be (or be entitled to elect) the general partner or governing body of Cantor following such purchase or acquisition, (ii) Howard W. Lutnick shall be the chief executive officer or head of any division constituting or containing substantially all of Cantor’s businesses following such purchase or acquisition, or (iii) such purchase or acquisition is by Howard W. Lutnick’s spouse, estate, descendants, relatives or trust established for Howard W. Lutnick’s benefit or for the benefit of his spouse, any of his descendants or any of his relatives.

“Closing” has the meaning set forth in Section 2.04.

 

3

 

---

“Closing Date” has the meaning set forth in Section 2.04.

“Code” means the Internal Revenue Code of 1986, as amended, or any successor statute thereto.

“Contingent Obligation” means, as applied to any Person, any direct or indirect liability of that Person with respect to any Indebtedness, lease, dividend, guaranty, letter of credit or other obligation, contractual or otherwise (the “ primary obligation ”) of another Person (the “ primary obligor ”), whether or not contingent, (a) to purchase, repurchase or otherwise acquire such primary obligations or any property constituting direct or indirect security therefor, (b) to advance or provide funds (i) for the payment or discharge of any such primary obligation, or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency or any balance sheet item, level of income or financial condition of the primary obligor, or (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof.

“Contract” means any agreement, contract, obligation, license, lease, promise or undertaking (whether written or oral and whether express or implied).

“Contribution” has the meaning set forth in the recitals.

“Copyrights” means any foreign or United States copyright registrations and applications for registration thereof, and any non-registered copyrights.

“Covered Information” has the meaning set forth in Section 4.04(a).

“Current Market Price” means, as of any date: (a) if shares of BGC Partners Class A Common Stock are listed on an internationally recognized stock exchange, the average of the closing price per share of BGC Partners Class A Common Stock on each of the 10 consecutive trading days ending on such date, (it being understood that such price shall be appropriately adjusted in the event that there is a stock dividend or stock split during such 10-consecutive-trading-day period) or (b) if shares of BGC Partners Class A Common Stock are not listed on an internationally recognized stock exchange, the fair value of a share of BGC Partners Class A Common Stock as agreed in good faith by Cantor and the Audit Committee of BGC Partners.

“Distribution Rights” has the meaning set forth in Section 2.07(c).

“Effective Time” has the meaning set forth in Section 2.05.

“Election” has the meaning set forth in Section 4.11(b)(iv).

“eSpeed” means eSpeed, Inc., a Delaware corporation.

“Excluded Assets” has the meaning set forth in Section 2.01(b).

 

4

 

---

“Excluded Liabilities” has the meaning set forth in Section 2.02(b).

“Founding Partners” has the meaning set forth in Section 2.7(c).

“Fulfillment Business” means the business of providing Clearance, Settlement and Fulfillment Services (as defined in the Joint Services Agreement).

“Global Opco” has the meaning set forth in the preamble.

“Global Opco Group Percentage Interest” means “Group Percentage Interest” as defined in the New Global Opco Limited Partnership Agreement.

“Global Opco Limited Partnership Interest” means the “Limited Partnership Interest” as defined in the New Global Opco Limited Partnership Agreement.

“Global Opco Regular Limited Partnership Interests” means “Regular Limited Partnership Interests” as defined in the New Global Opco Limited Partnership Agreement.

“Global Opco Regular Partnership Units” means “Regular Partnership Units” as defined in the New Global Opco Limited Partnership Agreement.

“Global Opco Units” means “Units” as defined in the New Global Opco Limited Partnership Agreement.

“Governmental Authority” means the government of any nation, state, city, locality or other political subdivision thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including, the National Association of Securities Dealers, Inc. and any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing.

“Group” means the Cantor Group, the BGC Partners Group, the Opco Group and the Holdings Group, as applicable.

“Holdings” has the meaning set forth in the preamble.

“Holdings Exchangeable Limited Partnership Interest” means an “Exchangeable Limited Partnership Interest” as defined in the New Holdings Limited Partnership Agreement.

“Holdings Founding Partner Interests” has the meaning set forth in Section 2.7(c).

“Holdings Group” means Holdings and its Subsidiaries (other than any member of the Opco Group).

“Holdings Indemnitees” has the meaning set forth in Section 5.02(c).

“Holdings Limited Partnership Interest” means “Limited Partnership Interest” as defined in the New Holdings Limited Partnership Agreement.

 

5

 

---

“Holdings Ratio” means, as of any time, the number equal to (a) the aggregate number of U.S. Opco Units held by the Holdings Group as of such time divided by (b) the aggregate number of Holdings Units issued and outstanding as of such time.

“Holdings Units” means “Units” as defined in the New Holdings Limited Partnership Agreement.

“Indebtedness” means, as to any Person, (a) all obligations of such Person for borrowed money (including reimbursement and all other obligations with respect to surety bonds, letters of credit and bankers’ acceptances, whether or not matured), (b) all obligations of such Person to pay the deferred purchase price of property or services, except trade accounts payable and accrued commercial or trade liabilities arising in the ordinary course of business, (c) all interest rate and currency swaps, caps, collars and similar agreements or hedging devices under which payments are obligated to be made by such Person, whether periodically or upon the happening of a contingency, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all obligations of such Person under leases which have been or should be, in accordance with U.S. GAAP, recorded as capital leases, (f) all indebtedness secured by any Lien (other than Liens in favor of lessors under leases other than leases included in clause (e)) on any property or asset owned or held by that Person regardless of whether the indebtedness secured thereby shall have been assumed by that Person or is non-recourse to the credit of that Person, and (g) any Contingent Obligation of such Person.

“Indebtedness Guarantee” has the meaning set forth in Section 2.02(b)(ii).

“Indemnifiable Losses” means all after-Tax Liabilities suffered or incurred by an Indemnitee, including any reasonable fees, costs or expenses of enforcing any indemnity hereunder; provided , however , that “ Indemnifiable Losses ” shall not include any Special Damages except if and to the extent awarded in an Action involving a Third Party Claim against such Indemnitee.

“Indemnitee” means any of the Cantor Indemnitees, the BGC Partners Indemnitees, the U.S. Opco Indemnitees, the Global Opco Indemnitees and the Holdings Indemnitees, as the case may be.

“Information” means all information, whether or not patentable or copyrightable, in written, oral, electronic or other tangible or intangible forms, stored in any medium, including studies, reports, records, books, Contracts, instruments, surveys, discoveries, ideas, concepts, know how, techniques, designs, specifications, drawings, blueprints, diagrams, models, prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes, computer programs or other software, marketing plans, customer names, communications by or to attorneys, memos and other materials prepared by attorneys or under their direction (including attorney work product), and other technical, financial, legal, employee or business information or data.

“Insurance Proceeds” means amounts (a) received by an insured from an insurance carrier; (b) paid by an insurance carrier on behalf of the insured; or (c) received

 

6

 

---

(including by way of set-off) from any third party in the nature of insurance, contribution or indemnification in respect of any Liability, in each of cases (a), (b) and (c), net of any applicable premium adjustments (including reserves and retrospectively rated premium adjustments) and net of any costs or expenses incurred in the collection thereof.

“Intellectual Property” means, collectively, all Copyrights, Patents, Trade Secrets, Trademarks, Internet Assets, Software and other proprietary rights.

“Inter-Dealer Brokerage Business” means the voice brokerage services of Cantor and the Cantor Subsidiaries, including the business of providing voice brokerage services to wholesale, inter-dealer markets in a broad range of products and services, including brokerage services for fixed income securities, foreign exchange, asset-backed securities, interest rate swaps and derivatives and access to trading services from eSpeed, Cantor’s U.S.-based electronic trading platform, the non-U.S. business of acting as a broker in sovereign debt securities, Eurobonds, securities repurchase agreements, interest rate swaps, interest rate options, asset swaps, spot and forward foreign exchange, currency options, credit derivatives, base metal derivatives, equity derivatives and exchange traded financial futures and option Contracts for dealers and institutions worldwide, the business of acting as an introducing broker, name-passing broker or in a principal activity, and the business of certain limited dealing (proprietary trading services); provided , however , that “ Inter-Dealer Brokerage Business ” shall not include (i) the business of transactions in environmental brokerage services and the businesses conducted by Cantor CO2e, LLC, a Delaware limited liability company, and CantorCO2e Brokerage, L.P., a Delaware limited partnership, and their respective Subsidiaries (including the business of delivering market-based solutions in environmental brokerage, emissions neutral solutions, trading and risk management tolls and advice and market making information and the business of operating electronic trading markets for products related to the mitigation of greenhouse gasses and related activities and providing brokerage information, and the business of providing consulting services relating to the emission or mitigation of greenhouse gasses, renewable energy and related issues), and (ii) the equity derivatives inter-dealer brokerage business of the Equities Division of Cantor.

“Internet Assets” means any Internet domain names and other computer user identifiers and any rights in and to sites on the worldwide web, including rights in and to any text, graphics, audio and video files and html or other code incorporated in such sites.

“Joint Services Agreement” means the Amended and Restated Joint Services Agreement, dated as of October 1, 2005, by and between Cantor and eSpeed, as amended.

“Law” means any federal, state, local, municipal or foreign (including supranational) law, statute, ordinance, rule, regulation, judgment, order, injunction, decree, arbitration award, agency requirement, license or permit of any Governmental Authority.

“Liabilities” means any and all losses, liabilities, claims, charges, debts, demands, actions, causes of action, suits, damages, fines, penalties, offsets, obligations, payments, costs and expenses, sums of money, bonds, indemnities and similar obligations, covenants, Contracts, controversies, agreements, promises, omissions, guarantees, make whole agreements and similar obligations, and other liabilities, including all contractual obligations, whether absolute or

 

7

 

---

contingent, inchoate or otherwise, matured or unmatured, liquidated or unliquidated, accrued or unaccrued, known or unknown, whenever arising, and including those arising under any Law, Action or threatened or contemplated Action (including the costs and expenses of demands, assessments, judgments, settlements and compromises relating thereto and attorneys’ fees and any and all costs and expenses reasonably incurred in investigating, preparing or defending against any such Actions or threatened or contemplated Actions), order or consent decree of any Governmental Authority or any award of any arbitrator or mediator of any kind, and those arising under any Contract, commitment or undertaking, including those arising under this Agreement or any Ancillary Agreement, in each case, whether or not recorded or reflected or required to be recorded or reflected on the books and records or financial statements of any Person.

“License” has the meaning set forth in Section 4.13.

“Lien” means, whether arising under any Contract or otherwise, any debts, claims, security interests, liens, encumbrances, pledges, mortgages, retention agreements, hypothecations, rights of others, assessments, restrictions, voting trust agreements, options, rights of first offer, proxies, title defects, and charges or other restrictions or limitations of any nature whatsoever.

“Market Data Business” means the market data services of Cantor, BGC Partners and their respective Subsidiaries with respect to the business of providing market data arising from transactions (other than transactions executed on a futures or securities exchange or other market) in the Inter-Dealer Brokerage Business.

“Merger Agreement” means the Agreement and Plan of Merger, dated as of May 29, 2007, among BGC Partners, Holdings, eSpeed, U.S. Opco and Global Opco.

“Merger” means the merger of BGC Partners and eSpeed set forth in the Merger Agreement.

“New BGC Partners” has the meaning set forth in Section 4.10(a).

“New BGC Partners Merger” has the meaning set forth in Section 4.10(c).

“New BGC Partners Sub” has the meaning set forth in Section 4.10(b).

“New Global Opco Limited Partnership Agreement” means the Amended and Restated Limited Partnership Agreement of BGC Global Holdings, L.P., substantially in the form attached as Exhibit B.

“New Holdings Limited Partnership Agreement” means the Amended and Restated Limited Partnership Agreement of BGC Holdings, L.P., substantially in the form attached as Exhibit C.

“New U.S. Opco Limited Partnership Agreement” means the Amended and Restated Limited Partnership Agreement of BGC Partners, L.P., substantially in the form attached as Exhibit D.

 

8

 

---

“Notice” has the meaning set forth in Section 4.11(b)(iii).

“Opco Group” means U.S. Opco, Global Opco and their respective Subsidiaries (including, after the Closing, any Transferred Entities that are Subsidiaries of U.S. Opco and Global Opco).

“Opco Indemnitees” has the meaning set forth in Section 5.02(b).

“Opcos” means, jointly and severally, U.S. Opco and Global Opco.

“Parties” and “Party” have the meanings set forth in the preamble.

“Patents” means any foreign or United States patents and patent applications, including any divisions, continuations, continuations-in-part, substitutions or reissues thereof, whether or not patents are issued on such applications and whether or not such applications are modified, withdrawn or resubmitted.

“Percentage Adjustment” has the meaning set forth in Section 4.11(b)(i).

“Person” means any individual, firm, corporation, partnership, trust, incorporated or unincorporated association, joint venture, joint stock company, limited liability company, Governmental Authority or other entity of any kind, and shall include any successor (by merger or otherwise) of such entity.

“Per Unit Price” means, as of any time, the quotient obtained by dividing the Current Market Price as of such time by the BGC Partners Ratio as of such time.

“Pre-Contribution Loan” has the meaning set forth in Section 2.07(e).

“Purchase Consideration” has the meaning set forth in Section 4.11(b)(iv).

“Purchase Right” has the meaning set forth in Section 4.11(b)(i).

“Purchase Right Party” has the meaning set forth in Section 4.11(b)(i).

“Receiving Party” has the meaning set forth in Section 4.11(b)(i).

“Registration Rights Agreement” means the Registration Rights Agreement in the form attached hereto as Exhibit E.

“Representatives” has the meaning set forth in Section 4.04(a).

“Retained Business” has the meaning set forth in recitals.

“Select Persons” has the meaning set forth in Section 2.07(d).

“Software” means any computer software programs, source code, object code, data and documentation, including, without limitation, any computer software programs that incorporate and run the BGC Partners’ pricing models, formulae and algorithms.

 

9

 

---

“Special Allocation Losses” means all out-of-pocket Liabilities actually suffered or incurred by a Party, including any reasonable fees, costs or expenses of enforcing any indemnity hereunder.

“Special Damages” means any special, indirect, incidental, punitive or consequential damages whatsoever, including damages for lost profits and lost business opportunities or damages calculated based upon a multiple of earnings approach or variant thereof.

“Subsidiary” of any Person means, as of the relevant date of determination, any other Person of which 50% or more of the voting power of the outstanding voting equity securities or 50% or more of the outstanding economic equity interest is owned, directly or indirectly, by such first Person.

“Surviving Company” means the surviving entity in the Merger.

“Taxes” means any federal, state, provincial, county, local, foreign and other taxes (including, without limitation, income, profits, windfall profits, alternative or add-on, minimum, accumulated earnings, environmental, personal holding company, capital stock, capital gains, premium, estimated, excise, stamp, registration, sales, use, license, occupancy, occupation, gross receipts, franchise, ad valorem, severance, capital levy, production, transfer, withholding, employment, unemployment compensation, social security (or similar), payroll and property taxes, import duties and other governmental charges and assessments), whether or not measured in whole or in part by net income, and including deficiencies, interest, additions to tax or interest, and penalties with respect thereto.

“Tax Receivable Agreement” means the Tax Receivable Agreement between Cantor and BGC Partners, to be entered into pursuant to the terms set forth on Exhibit F.

“Tax Return” means any return, declaration, report, claim for refund or information return or statement filed or required to be filed with any taxing authority relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.

“Third-Party Claim” has the meaning set forth in Section 5.07(a).

“Tower Bridge” shall mean Tower Bridge International Services L.P., a U.K. limited partnership.

“Tower Bridge Administrative Services Agreement” means the Administrative Services Agreement between Tower Bridge and BGC Partners, substantially in the form attached as Exhibit G.

“Trademarks” means any foreign or United States trademarks, service marks, trade dress, trade names, brand names, designs and logos, corporate names, product or service identifiers, whether registered or unregistered, and all registrations and applications for registration thereof.

 

10

 

---

“Trade Secrets” means any trade secrets, research records, business methods, processes, procedures, manufacturing formulae, technical know-how, technology, blue prints, designs, plans, inventions (whether patentable and whether reduced to practice), invention disclosures and improvements thereto.

“Transferred Assets” has the meaning set forth in Section 2.01(a).

“Transferred Business” and “Transferred Businesses” have the meanings set forth in the recitals.

“Transferred Business Employees” has the meaning set forth in Section 6.01.

“Transferred Entities” means any Person, where a majority of the equity interest of such Person is part of the Transferred Assets, and any Subsidiary of such Person.

“Transferred Liabilities” has the meaning set forth in Section 2.02(a).

“U.S. GAAP” means United States generally accepted accounting principles in effect from time to time.

“U.S. Opco” has the meaning set forth in the preamble.

“U.S. Opco Group Percentage Interest” means “Group Percentage Interest” as defined in the New U.S. Opco Limited Partnership Agreement.

“U.S. Opco Limited Partnership Interest” means the “Limited Partnership Interest” as defined in the New U.S. Opco Limited Partnership Agreement.

“U.S. Opco Regular Limited Partnership Interests” means “Regular Limited Partnership Interests” as defined in the New U.S. Opco Limited Partnership Agreement.

“U.S. Opco Regular Partnership Units” means “Regular Partnership Units” as defined in the New Global Opco Limited Partnership Agreement.

“U.S. Opco Units” means “Units” as defined in the New U.S. Opco Limited Partnership Agreement.

SECTION 1.02 Other Definitions. Wherever required by the context of this Agreement, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter genders and vice versa, and references to any agreement, document or instrument shall be deemed to refer to such agreement, document or instrument as amended, supplemented or modified from time to time. When used herein:

(a) the word “ or ” is not exclusive unless the context clearly requires otherwise;

(b) the word “ control ” (including, with correlative meanings, the terms “ controlled by ” and “ under common control with ”), as used with respect to any Person, means

 

11

 

---

the direct or indirect possession of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by Contract or otherwise;

(c) the words “ including ,” “ includes ,” “ included ” and “ include ” are deemed to be followed by the words “ without limitation ”;

(d) the terms “ herein ,” “ hereof ” and “ hereunder ” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision; and

(e) all section, paragraph or clause references not attributed to a particular document shall be references to such parts of this Agreement, and all exhibit, annex and schedule references not attributed to a particular document shall be references to such exhibits, annexes and schedules to this Agreement.

Section 1.03 Absence of Presumption. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting or causing any instrument to be drafted.

Section 1.04 Headings. The section and article headings contained in this Agreement are inserted for convenience of reference only and will not affect the meaning or interpretation of this Agreement. All references to Sections or Articles contained herein mean Sections or Articles of this Agreement unless otherwise stated.

ARTICLE II

CONTRIBUTION

SECTION 2.01 Contribution of Transferred Assets. (a) At the Closing, and subject to the terms and conditions set forth herein, including Section 2.01(b), Cantor will contribute, convey, transfer, assign and deliver, or cause one or more of its Subsidiaries to contribute, convey, transfer, assign and deliver, to BGC Partners or one or more of its Subsidiaries in a manner that is expected to be Tax-free to each of BGC Partners, its Subsidiaries and the Transferred Entities, and BGC Partners or one or more of its Subsidiaries will acquire and accept from Cantor or its applicable Subsidiaries, all of the right, title and interest of Cantor or its applicable Subsidiaries in, to and under the following Assets (collectively, the “ Transferred Assets ”) (other than any of the following to the extent it is an Excluded Asset):

(i) Equity Interests. The equity interests set forth on Schedule 2.01(a)(i) ;

(ii) Contracts . The Contracts set forth on Schedule 2.01(a)(ii) and employment agreements with any Transferred Business Employee;

(iii) Certain Rights under the Joint Services Agreement . All of Cantor’s rights and obligations under Sections 3 and 4 of the Joint Services Agreement to the extent related to the Inter-Dealer Brokerage Business, including its rights and

 

12

 

---

obligations in respect of Clearance, Settlement and Fulfillment Services to the extent related to the Inter-Dealer Brokerage Business;

(iv) Intellectual Property . All Intellectual Property primarily related to the Transferred Business, including the Intellectual Property set forth on Schedule 2.01(a)(iv) ;

(v) Books and Records . All books and records (other than Tax Returns), files, papers, tapes, disks, manuals, keys, reports, plans, catalogs, sales and promotional materials, and all other printed and written materials, to the extent available and primarily related to the Transferred Business; and

(vi) Permits and Licenses. All permits or licenses issued by any Governmental Authority to the extent primarily related to the Transferred Business and permitted by Applicable Law to be transferred.

(b) Notwithstanding anything to the contrary contained in this Agreement, Cantor and its Subsidiaries will retain ownership of the following Assets, which Assets shall be excluded from the Transferred Assets and shall not be contributed, conveyed, transferred, assigned or delivered hereunder (collectively, the “Excluded Assets” ):

(i) Cash and Cash Equivalents . All cash, cash equivalents and marketable securities (including any cash, cash equivalents and marketable securities held by any Transferred Entity), except for cash borrowed pursuant to the Pre-Contribution Loan;

(ii) Litigation Claims; Insurance Recoveries. Any litigation claim or insurance recovery relating to the matters set forth on Schedule 2.01(b)(ii) , and any insurance policy and Insurance Proceeds covering any Excluded Asset or any Excluded Liability;

(iii) Equity Interests . Any equity interest set forth on Schedule 2.01(b)(iii) ;

(iv) Intellectual Property. All Intellectual Property or hardware of Cantor and any of its Subsidiaries not primarily used in the Transferred Business, including any rights (ownership, licensed or otherwise) to use the mark “Cantor” or “Cantor Fitzgerald” name and any other trademarks, service marks, brand names, Internet domain names, logos, trade dress, trade names, corporate names and other indicia of origin, and any derivatives of the foregoing, and all registrations and applications for registration of any of the foregoing, in each case, not primarily related to the Transferred Business, and all goodwill associated with and symbolized by the foregoing;

(v) Books and Records. All books, records and other data that cannot, without unreasonable effort or expense, be separated from books and records maintained by Cantor or any of its Subsidiaries in connection with businesses other than the Transferred Businesses or to the extent that such books, records and other data relate to

 

13

 

---

Excluded Assets, Excluded Liabilities or Business Employees who do not become Transferred Business Employees, and all personnel files and records; and

(vi) Retained Business . Any Asset relating to a Retained Business (other than any Asset set forth in clauses (i) through (vi) of Section 2.01(a)).

SECTION 2.02 Assumption of Transferred Liabilities. (a) From and after the Closing, BGC Partners and its applicable Subsidiaries will assume and be liable for (or cause the appropriate member or members of the Opco Group to assume and be liable for), and will pay, perform and discharge (or will cause the appropriate member or members of the Opco Group to pay, perform and discharge) as they become due, all of the Liabilities set forth in this Section 2.02(a), other than any Excluded Liability (collectively, the “Transferred Liabilities” ):

(i) Transferred Assets; Transferred Business. All Liabilities primarily relating to, arising from or in connection with any Transferred Business or any Transferred Asset, regardless of when or where such Liability arose, whether the facts on which they are based occurred prior to or subsequent to the Closing Date, and regardless of where or against whom such Liability is asserted or determined;

(ii) Certain Obligations under the Joint Services Agreement . All of Cantor’s Liabilities under Sections 3 and 4 of the Joint Services Agreement primarily related to the Inter-Dealer Brokerage Business, including Liabilities related to its rights and obligations in respect of Clearance, Settlement and Fulfillment Services primarily related to the Inter-Dealer Brokerage Business;

(iii) Employee Liabilities. All Liabilities primarily relating to, arising from or in connection with the Transferred Business Employees and their employment, including all compensation, benefits, severance, workers’ compensation and welfare benefit claims (it being understood that Liabilities under (A) insured welfare benefit arrangements maintained by the Cantor Companies in which the BGC Partners and its subsidiaries participate and (B) the eSpeed, Inc. Deferred Plan for Employees of Cantor Fitzgerald, L.P. and its Affiliates) shall be assumed (1) on the same basis as such Liabilities have historically been allocated to the BGC Partners and its subsidiaries in the ordinary course prior to the Closing Date and (2) otherwise to the same extent as applied to BGC Partners and its subsidiaries in their capacity as participating employers under such arrangements prior to the Closing Date) and other employment-related Liabilities primarily arising from or relating to the conduct of any Transferred Business; and

(iv) Indebtedness . The Indebtedness set forth on Schedule 2.02(a)(iv) .

BGC Partners’ obligations under this Section 2.02(a) shall in no way derogate from the obligations of Cantor under the Merger Agreement.

(b) Notwithstanding anything to the contrary set forth in this Agreement, Cantor and its Subsidiaries will retain and be liable for, and will pay, perform and discharge as they become due, the following Liabilities and obligations, and such Liabilities and obligations shall not be assumed by BGC Partners or any of its Subsidiaries pursuant to this Agreement and shall be excluded from the Transferred Liabilities (collectively, the “Excluded Liabilities” ):

 

14

 

---

(i) Liabilities Relating to Excluded Assets or Retained Business. Any Liability of Cantor or any of its Subsidiaries to the extent relating to any Excluded Asset or any Retained Business (other than any Liability set forth in clauses (i) through (v) of Section 2.02(a));

(ii) Indebtedness Guarantee . Any guarantee by a member of the Cantor Group to a third party in respect of the Indebtedness set forth on Schedule 2.02(b)(ii) (such guarantee, the “Indebtedness Guarantees” ); and

(iii) Other Excluded Liabilities. The Liabilities set forth on Schedule 2.02(b)(iii).

SECTION 2.03 Actions to Effect the Contribution. The Parties acknowledge and agree that the Contribution shall be effected in accordance with the steps set forth on Schedule 2.03 , and that effecting the Contribution in accordance with such steps is intended to result in a Tax-free transfer to each of BGC Partners, its Subsidiaries and the Transferred Entities. If, prior to such Contribution, either Cantor or BGC Partners concludes that any of the steps set forth on Schedule 2.03 will result in a material amount of Taxes to any of BGC Partners, its Subsidiaries or the Transferred Entities, Cantor shall restructure such Contribution to minimize any such Taxes to each of BGC Partners, its Subsidiaries and the Transferred Entities in respect of each of the steps set forth on Schedule 2.03.

SECTION 2.04 Closing. The closing of the Contribution (the “Closing” ) shall take place at 6 p.m., New York, New York time, on March 31, 2008 (the “Closing Date” ), at the offices of Wachtell, Lipton, Rosen & Katz, 51 West 52nd Street, New York, New York 10019.

SECTION 2.05 Title; Risk of Loss. Title, risk of loss and/or responsibility with respect to, each Transferred Asset and Transferred Liability shall transfer from Cantor and its applicable Subsidiaries to BGC Partners and its applicable Subsidiaries at 6 p.m., New York time, on the Closing Date (the “Effective Time” ).

SECTION 2.06 Further Documentation. At the Closing, the Parties shall execute and deliver, and shall cause their appropriate Subsidiaries to execute and deliver, one or more agreements of assignment and assumption and/or bills of sale or such other instruments of transfer as Cantor may request for the purpose of effectuating the Contribution.

SECTION 2.07 Other Actions in Connection with the Contribution.

(a) Transfer of Assets to Tower Bridge . Concurrently with, prior to or after the Effective Time, Cantor shall have or will contribute, convey, transfer, assign and deliver, or cause one or more of its Subsidiaries to contribute, convey, transfer, assign and deliver, to Tower Bridge, and Tower Bridge shall have acquired and accepted or will acq