eTrade 2007 Annual Report Download - page 178

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Section 5.5 Change of Control of Parent.
(a) Upon the consummation of a Change of Control of Parent, Parent (or the Successor Entity) or the Company may within
10 calendar days thereafter (the “Termination Election Period”), by written notice to the other Party, terminate this Agreement and
Parent shall pay to the Company within thirty calendar days an amount in cash equal to the sum of the Liquidated Damages Amount. If
neither Parent (or the Successor Entity) nor the Company terminates this Agreement pursuant to this Section 5.5(a) within the
Termination Election Period, then this Agreement shall continue in full force and effect and Parent (or the Successor Entity) shall
confirm such continuation in writing.
(b) In the event that Parent (or the Successor Entity) does not terminate this Agreement pursuant to Section 5.5(a), upon the
consummation of a Change of Control of Parent, Parent (or the Successor Entity) and the Company shall negotiate in good faith to
amend the terms of this Agreement to include any additional order flow resulting from such Change of Control of Parent within the
scope of this Agreement upon terms to be mutually agreed by the Company and Parent (or the Successor Entity). If the Parties are
unable reasonably to agree on such amendment, 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 Change of Control of Parent had not occurred and without regard to any
additional order flow resulting from the Change of Control of Parent.
(c) Notwithstanding the foregoing provisions of Section 5.5(a) and Section 5.5(b), following a Change of Control of Parent,
Parent (or the Successor Entity) may elect to keep the order flow business of Parent separate from any additional order flow resulting
from such Change of Control of Parent 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 Change of Control of Parent had not
occurred and without regard to any additional order flow resulting from the Change of Control of Parent.
Section 5.6 Material Transactions.
(a) Upon the consummation of a Material Transaction and subject to the terms of any agreements or other arrangements
binding on the counterparty in such Material Transaction, if Parent (or the Successor Entity) wishes to route any Orders that are not
within the scope of this Agreement to the Company, Parent (or the Successor Entity) shall provide the Company with written notice of
such proposed routing of order flow and the material terms on which Parent (or the Successor Entity) intends to route such order flow
to the Company. Following the receipt of such notice, Parent (or the Successor Entity) and the Company shall negotiate in good faith
to amend the terms of this Agreement to include such order flow within the scope of this Agreement upon terms to be mutually agreed
by the Parties. If the Parties are unable reasonably to agree on such amendment, 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.
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