OPTIONS ORDER FLOW AGREEMENT
This Options Order Flow Agreement (the "Agreement") is entered into
as of March 2, 2005, by and between IntercontinentalExchange, Inc., a Delaware
corporation ("ICE"), and Optionable Inc, a Delaware corporation (the "Order Flow
Provider"), and supersedes and replaces all prior agreements regarding the
subject matter hereof.
WHEREAS, ICE owns and operates an electronic platform for the
trading of commodities and derivative products on commodities (the "Platform");
WHEREAS, the Order Flow Provider is an options broker that has a
duly executed Broker Agreement (as defined below) in place with ICE;
WHEREAS, ICE wishes to have the Order Flow Provider submit certain
Transactions to the Platform;
WHEREAS, the Order Flow Provider has agreed to submit such
Transactions through the Platform on the terms and subject to the conditions set
forth herein; and
WHEREAS, the parties wish to set forth the terms and conditions of
their agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. Definitions. Capitalized terms that are not otherwise defined in this
Agreement shall have the meanings given to them in the Broker Agreement.
"Broker Agreement" means the agreement, dated July 1, 2004 between
the parties to this Agreement, governing the Order Flow Provider's access to the
Platform, as the same may be amended from time to time.
"Commencement Date" shall mean the first day of the Order Flow
Commitment Period, which shall be July 1, 2004.
"Designated Product" means option contracts on crude oil and natural
gas, as well as natural gas fixed price penultimate henry hub swaps, that are
traded on the Platform.
"ICE Commissions" means commissions payable to ICE in connection
with the execution of Transactions in Designated Products on the Platform. ICE
Commissions do not include fees, charges or amounts payable to entities other
than ICE, such as a clearinghouse.
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"ICE Commission Revenues" means revenues received by ICE in the form
of ICE Commissions.
"Order Flow Commitment Period" means the period from and including
the Commencement Date up to and including June 30, 2006.
"Platform" has the meaning given to such term in the preamble to
this Agreement.
"Transaction" means a purchase or sale of a Designated Product that
is submitted to the Platform by the Order Flow Provider as a block trade and
which generates ICE Commission Revenue.
2. Order Flow Commitment. During the Order Flow Commitment Period, the
Order Flow Provider agrees, subject to the terms and conditions set forth
herein, that it will submit Transactions to the Platform.
3. ICE Commission Statement. After the end of each calendar quarter during
the Order Flow Commitment Period, the parties will work together to promptly
exchange information as may be reasonably necessary for ICE to prepare a
statement setting forth the ICE Commission Revenues generated by the Order Flow
Provider during such calendar quarter by submitting Transactions to the
Platform. ICE shall be obligated to prepare such statement and provide the same
to Order Flow Provider within 30 days after the end of each calendar quarter
during the Order Flow Commitment Period, or as soon as practicable thereafter if
there has been any delay in Order Flow Provider providing information to ICE
that is reasonably necessary to reconcile the parties' records and prepare the
statement.
4. Quarterly Order Flow Rebate. During the Order Flow Commitment Period,
ICE will rebate to Order Flow Provider an amount equal to one half (50%) of the
ICE Commission Revenues generated by Transactions submitted by the Order Flow
Provider during the calendar quarter (the "Quarterly Rebate"), with the rebate
being issued at the same time as the delivery of the ICE Commission Statement.
5. Representations, Warranties, and Covenants
a. Order Flow Provider hereby represents, warrants, and covenants that:
i. it has all requisite corporate or other power and authority to
execute and deliver this Agreement and to perform its
obligations hereunder; and
ii. this Agreement has been duly executed and delivered by Order
Flow Provider and constitutes the legal, valid and binding
obligation of Order Flow Provider, enforceable against it in
accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting the rights
and remedies of creditors generally and by general principles
of equity (regardless of whether in equity or at law).
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iii. it will make its customers and clients for whom it acts in
connection with the Platform aware that Order Flow Provider
receives order flow rebates as a result of its activities
under this Agreement by indicating on each order confirmation;
"Optionable, Inc. may receive incentive payments from
exchanges or electronic trading platforms for the transactions
it submits to them on behalf of its clients". Order Flow
Provider acknowledges that this is a material provision of
this Agreement.
b. ICE hereby represents and warrants that:
i. it has all requisite corporate or other power and authority to
execute and deliver this Agreement and to perform its
obligations hereunder; and
ii. this Agreement has been duly executed and delivered by ICE and
constitutes the legal, valid and binding obligation of ICE,
enforceable against it in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws relating
to or affecting the rights and remedies of creditors generally
and by general principles of equity (regardless of whether in
equity or at law).
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6. Termination
a. This Agreement shall automatically terminate upon the earlier of (i)
the conclusion of the Order Flow Commitment Period or (ii) the
termination of the Broker Agreement.
b. Termination of this Agreement does not affect a party's accrued
rights and obligations at the date of termination.
7. Miscellaneous
a. The provisions of the Broker Agreement regarding Limitation of
Liability; Indemnity; Notices; Force Majeure; Waiver; Assignment;
Governing Law; Dispute Resolution; Headings; Severability; and
Counterparts apply to and are incorporated by reference into this
Agreement mutatis mutandis.
b. In the event of any conflict between this Agreement and the Broker
Agreement, the provisions of this Agreement shall prevail.
c. Neither party shall make any disclosure relating to this Agreement
or its terms (collectively, "Confidential Information") to a third
party (other than the party's employees, agents, affiliates,
accountants or professional advisors who have a need to know such
information and have agreed to keep such terms confidential) without
the prior approval of the other party, except (i) as may be required
by law or otherwise in connection with discussions with regulators
or other governmental authorities, including any regulated exchange,
or (ii) at such time as such Confidential Information becomes known
by the general public (or generally known within the financial
services, trading or commodity markets communities) other than
through violation of this paragraph.
d. This Agreement may not be modified or amended except by an
instrument or instruments in writing signed by each of the parties,
and no provision of this Agreement may be waived except in a writing
signed by the relevant party.
e. This Agreement constitutes the entire agreement and understanding of
the parties with respect to its subject matter and supersedes all
oral communication and prior writings with respect thereto.
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IN WITNESS WHEREOF, this Agreement has been signed by or on behalf
of each of the parties as of the day first above written.
IntercontinentalExchange, Inc.
By:
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Signature of authorized signatory
Name:
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Title:
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Optionable, Inc.
By:
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Signature of authorized signatory
Name: Edward J. O'Connor
Title: President
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