eTrade 2007 Annual Report Download - page 179
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(b) Notwithstanding the foregoing provisions of Section 5.6(a), following the consummation of a Material Transaction, to
the extent reasonably practicable, Parent (or the Successor Entity) may elect to keep the order flow business of Parent separate from
any additional order flow resulting from such Material Transaction and if Parent (or the Successor Entity) so elect, Parent (or the
Successor Entity) shall continue to comply with the provisions of this Agreement with respect to Parent’s order flow as if such
Material Transaction had not occurred and without regard to any additional order flow resulting from the Material Transaction.
Section 5.7 Liquidated Damages.
(a) If this Agreement is terminated (i) by Parent for any reason other than as provided for in Section 8.2(a), 8.2(c), or 8.2
(m), or (ii) by Company for any reason other than as provided for in Section 8.2(k) or 8.2(l), then Parent shall pay to the Company an
amount to be calculated in accordance with the following (the “Liquidated Damages Amount”):
For the avoidance of doubt, (i) Parent shall not be obligated to pay the Liquidated Damages Amount as a result of a Partial
Termination, but (ii) Parent shall be obligated to pay the Liquidated Damages Amount to the extent required by this Section 5.7(a) if
there is a termination subsequent to a Partial Termination.
(b) The Parties agree that the Company’s actual damages in the event of the occurrence of any of the types of situations set
forth in Section 5.7(a) (and the other provisions of this Agreement referenced therein) would be extremely difficult or impracticable to
determine. After negotiation, the Parties have agreed that, considering all the circumstances existing on the date of this Agreement, the
amounts of the payments set forth in Section 5.7(a) represent a reasonable estimation of the damages that the Company would incur if
any such events were to occur. None of the payments set forth in Section 5.7(a) are intended as a penalty. Each of the Parties agrees to
the accuracy of the statements made in this paragraph, the reasonableness of the amount of liquidated damages agreed upon, and the
fact that each Party was represented by counsel who explained, at the time this Agreement was made, the consequences of the
foregoing provisions.
17
If terminated prior to December 31, 2008
$75 million
If terminated between January 1, 2009 and December 31, 2009
$50 million
If terminated between January 1, 2010 and December 31, 2010
$25 million