EXHIBIT 10.50
TSE INTEGRATION AGREEMENT
-------------------------
This agreement dated as of the 7/th/ day of June, 2000.
Between:
THE TORONTO STOCK EXCHANGE INC.
(the "TSE")
and
ASHTON TECHNOLOGY CANADA INC.
("ATG")
WHEREAS:
(a) the TSE owns, operates and regulates a stock exchange using the TSE
System, as hereinafter defined;
(b) ATG is a corporation incorporated under the laws of Canada.
(c) ATG is a sole purpose company that, under the authority of a technology
license granted to it by, and with the assistance of, its Affiliates
operates the ATG Matching System as hereinafter defined, which is to be
integrated with the TSE's continuous auction market for Authorized
Securities and which is to be regulated by the authorities which regulate
the trading of such securities at the TSE; and
(d) The ATG Matching System shall operate as a Facility of the TSE, as
hereinafter defined, and each of the TSE and ATG shall receive the
services and assume the obligations set out herein.
NOW THEREFORE, in consideration of the premises and mutual covenants and
conditions contained herein, the Parties agree as follows:
1. DEFINITIONS AND EXHIBITS
In this Agreement:
1.1 "Affiliate" of a Party means any corporation or other entity which is
directly or indirectly controlled by such Party or which is directly or
indirectly controlled by any Person which directly or indirectly controls
such Party. For the purposes of this Agreement, " control" has the
meaning set out in the Regulations.
1.2 "Agreement" means this agreement together with all Exhibits attached
hereto.
1.3 "ATG Marks" means the registered and unregistered trademarks owned and/or
licensed by ATG and listed in Exhibit D.
1.4 "ATG Matching System" means the volume weighted average price trading
system and other crossing system operated by ATG as further described in
Exhibit A, as approved by the TSE.
1.5 "Authentication Key" means the confidential password or other key
provided to ATG by the TSE to verify the identity of ATG.
1.6 "Authorized Securities" means any securities or other financial
instruments authorized for trading in the ATG Matching System pursuant to
section 4.3.4 of this Agreement.
1.7 "Confidential Information" means the trade secrets and confidential
information owned by or under the control of a Party which is either (i)
marked "confidential" or (ii) disclosed orally but confirmed in writing
within 10 days of such oral disclosure to be confidential. Confidential
Information shall include without limitation this Agreement, the
Authentication Key and the Decryption Key. Confidential Information may
include, without limitation, confidential financial, technical, marketing
and personnel information that is marked or designated "confidential".
Confidential Information shall not include any information that is:
available to the public without restriction; provided lawfully to a Party
by a third party; or is independently developed by the receiving Party
without use of or reference to the Confidential Information of the other
Party.
1.8 "Decryption Key" means the mechanism used to permit ATG to decode and
read the TBF Data, which has been encrypted to preserve its
confidentiality.
1.9 "Designated Clearing Broker" means a party registered under the
Securities Act (Ontario) and designated by a User for clearing trades in
the ATG Matching System, and that has an agreement with ATG to act as a
clearing broker.
1.10 "Facility of the TSE" means an entity which operates a matching service
which is operated in conjunction with the TSE System and under the
authority of the appropriate regulatory body which oversees trading of
securities at the TSE and which has entered into an integration agreement
with the TSE that is substantially similar to this Agreement.
1.11 "Gateway" means the mechanism by which a Person authorized by the TSE
accesses the TSE System.
1.12 "Gateway Certified" means a system that has been certified by the TSE as
capable of communicating transactions in an acceptable format or
protocol.
1.13 "Gateway Data" means all information inputted by ATG through the Gateway
to the TSE System, including, trading information with respect to
Authorized Securities traded on the TSE via the ATG Matching System and
all messages transmitted to ATG through the Gateway by the TSE, including
trade confirmations.
1.14 "Gateway Specifications" means the documented set of specifications
provided by the TSE that define the Gateway's message architecture,
authentication, integrity, authorization, error handling, session
architecture, session establishment, dissolution, control messaging and
business content.
1.15 "including" means including without limitation.
1.16 "Intellectual Property Rights" means all intellectual property rights,
including, patents, copyrights, trade secrets and trademarks.
1.17 "Party" means each of the TSE and ATG, and "Parties" means both the TSE
and ATG.
1.18 "Person" includes any natural person or proprietorship or any
corporation, partnership or other organization.
1.19 "Private Content" means information exclusively provided by the TSE
through the TBF to ATG regarding ATG's orders on the TSE.
1.20 "Public Content" means information regarding trading of securities and
other financial instruments, including Authorized Securities, on the TSE
which is available through the TBF to Persons approved for trading on the
TSE, including, but not limited to, business class, business action
(buy/sell), confirmation type, order number, public price, stock symbol,
time stamp and volume.
1.21 "Regulations" means any applicable securities laws, regulations,
policies, directives, orders or rules of, or approvals required to be
granted by, any securities regulatory authority and self-regulatory
organization to which ATG, the ATG Matching System, the TSE or the TSE
System are or become subject, including the TSE Requirements.
1.22 "Support" means Gateway and TBF support, as set out in Exhibit E.
1.23 "TBF" means the Toronto Broadcast Feed, being the high speed, real-time
electronic feed emanating from the TSE containing TBF Data, as such feed
may be changed or modified from time to time.
1.24 "TBF Data" means certain market data and other information provided by
the TSE through the TBF containing trading information with respect to
securities and other financial instruments traded on the TSE (including,
order confirmations, trade reports, market and stock status information)
in real-time using order entry sources of all Public Content and Private
Content on the TBF.
1.25 "TBF Specifications" means the documented set of specifications provided
by the TSE that define the TBF's message architecture, authentication,
integrity, authorization, error handling, session architecture, session
establishment, dissolution, control messaging and business content.
1.26 "TSE" means The Toronto Stock Exchange Inc.
1.27 "TSE Marks" means the registered and unregistered trademarks owned,
licensed or controlled by the TSE and listed in Exhibit D.
1.28 "TSE Requirements" means the by-laws, rules, regulations, policies,
rulings, decisions, rule book and company manual of the TSE and the
instructions, decisions and directions of the TSE (including those of any
committee of the TSE so authorized) as amended, supplemented and in
effect from time to time.
1.29 "TSE System" means the facilities, including the Gateway, TBF and all
electronic systems, provided by the TSE to facilitate trading securities
or other financial instruments, including Authorized Securities, as such
system may be replaced or modified from time to time.
1.30 "Terms of Operation" means the terms and conditions for the operation of
the ATG Matching System as set out in Exhibit B.
1.31 "Territory" means the geographic territory of Canada, as currently
constituted.
1.32 "User" means any Person approved pursuant to section 4.1 to access and
trade on the ATG Matching System.
Exhibits
--------
The following Exhibits are attached hereto and incorporated by reference and
deemed to be part hereof:
Exhibit A - Description of the ATG Matching System
Exhibit B - Terms of Operation of the ATG Matching System
Exhibit C - Revenue Sharing Arrangement
Exhibit ▇ - ▇▇▇ Marks and ATG Marks
Exhibit E - Support
Exhibit F - ATG Volume Thresholds
Exhibit G - Project Plan
2. ATG MATCHING SYSTEM
2.1 Design of ATG Matching System. ATG assumes all responsibility for the
design, development, installation, testing, implementation, operation and
maintenance of the ATG Matching System.
2.2 Description of ATG Matching System. The ATG Matching System shall be
comprised of the equipment, software, communications and security set
forth in Exhibit A.
2.3 Changes to the ATG Matching System. Any proposed change to the ATG
Matching System as described in Exhibit A shall require the prior written
authorization of the TSE. Any such proposed change shall be submitted to
the TSE in the form of a draft amendment to Exhibit A. ATG acknowledges
and agrees that it acts at its own risk in developing any modification to
the ATG Matching System prior to receiving approval from the TSE, since
the TSE is not obligated by this Agreement to grant such approval.
2.4 Unauthorized Changes to the ATG Matching System. In the event that any
aspect of the ATG Matching System as described in Exhibit A is changed
without the prior authorization of the TSE, the TSE shall have the right
to immediately suspend all activity on the ATG Matching System including,
the right to immediately suspend any connection of the ATG Matching
System with the TSE System, or take any further action the TSE considers
necessary, until ATG has obtained the TSE's approval for such change. If,
after 48 hours of suspension, ATG has not secured the TSE's approval for
such change, ATG shall remove and/or reverse such change to the ATG
Matching System. If, after an additional 48 hours, ATG fails to remove
and/or reverse such change, the TSE shall have the right to terminate
this Agreement immediately.
2.5 Operation of ATG Matching System. ATG agrees that the ATG Matching System
will perform and operate in accordance with the terms set out in Exhibits
A and B, the Regulations and all criteria established by the TSE from
time to time for the TSE System, including with respect to system
capacity. The TSE shall provide ATG with notice of changes to its
performance, capacity and operability criteria as soon as possible but in
any event not less than ninety (90) days or, where applicable, such other
amount of time prescribed under the Regulations, prior to such changes
being implemented.
2.6 Transmission and Equipment Security. ATG agrees to configure and operate
the ATG Matching System described in Exhibit A (or to cause the ATG
Matching System to be configured and operated) so that the ATG Matching
System remains at all times secure from unauthorized entry or
interference and to prevent the TBF Data and Gateway Data from being
taken from the ATG Matching System network or in any way communicated
otherwise than as described in Exhibit A, and to prevent unauthorized
access to the TSE System. ATG shall ensure that all service-related data
processing, transmission and communications equipment and software are
arranged and protected so that, so far as reasonably possible, no Person
other than a User will obtain direct or indirect access to the TSE
System, TBF Data or Gateway Data. ATG shall ensure that the security
provisions described in Exhibit A are enforced.
2.7 Enforcement of System Security. If, in its sole discretion, the TSE
determines that one or more Persons have unauthorized access to the TBF,
the Gateway and/or the
TSE System, ATG shall, in accordance with section 2.6, immediately take
all steps necessary to alter the security safeguards and the manner of
furnishing access to the TBF, the TSE System and/or the Gateway so as to
preclude unauthorized access. ATG shall provide the TSE with such
evidence as the TSE may request regarding the adequacy of such steps. If
the TSE determines, in its reasonable discretion, such steps to be
inadequate, ATG shall promptly comply with any reasonable written
instruction requiring ATG to discontinue furnishing the TBF and/or
Gateway access by inadequately safeguarded means. If ATG fails to comply
with such instructions within 48 hours, fails to secure TSE approval, or
fails to remove and/or reverse such change, the TSE shall have the right
to terminate this Agreement immediately.
2.8 TSE Access to ATG Premises. For purposes other than those set out in
section 4.10, ATG shall ensure that any Person authorized in writing by
the TSE has access, at any reasonable time and upon 48 hours' written
notice, to any premises of ATG and those of any service facilitator. In
the presence of officials in charge of the premises, the authorized
Person may (i) examine any component of the ATG Matching System used for
the purposes of this Agreement and located at the premises and (ii)
observe all operations located or conducted at such premises, but solely
to monitor compliance with this Agreement, unless otherwise required, in
the sole discretion of the TSE, for regulatory purposes.
2.9 Independent Review of ATG Matching System. In the event that the
Regulations require an independent review of the ATG Matching System, the
independent reviewer must be approved by the TSE prior to appointment.
The costs of such independent review shall be borne equally by ATG and
the TSE.
3. INTEGRATION SERVICES
3.1 ATG Integration. The TSE shall provide ATG with specifications for the
Gateway and TBF. ATG shall, at its own expense, develop connections to
the Gateway and TBF, provided that the TSE must approve the
specifications for such connections in writing prior to any connection of
the ATG Matching System to the TSE System. To the extent required, the
Parties shall enter into a development agreement setting out changes to
the TSE System required to implement such integrations.
3.2 ATG Rights of Access and Use. The rights granted below in this section
3.2 are to access the TSE System only, and do not transfer or grant any
title, right, license or interest in or to, any software or hardware or
any Intellectual Property Rights of the TSE (except as provided for in
section 6). No person shall access the TSE System or the ATG Matching
System except in accordance with the provisions of section 4.1.
3.2.1. ATG Gateway Access. From and after the date that the TSE and ATG
Matching Systems are integrated, the TSE shall permit ATG, through
the ATG Matching System, to access the TSE System through the
Gateway during the term of this Agreement on a non-exclusive basis
in accordance with the terms of this Agreement.
3.2.2. TBF Data Access. From and after the date that the TSE System and
the ATG Matching System are integrated, the TSE shall provide
ATG, through the ATG Matching System, with the TBF Data through
the TBF during the term of this Agreement on a non-exclusive
basis in accordance with the terms of this Agreement.
3.2.3. Non-Exclusive Basis. The TSE agrees to provide the Gateway
access, TBF, Gateway Data and TBF Data to the ATG Matching System
on a non-exclusive basis. The TSE reserves the right, without any
notice or liability to ATG or to any other Person, to provide
Gateway access, TBF access, Gateway Data or TBF Data or any other
information or to contract with any other Person to provide
Gateway access, TBF access, Gateway Data or TBF Data or any other
information to any Person by any means whatsoever, including
devices or equipment designed or manufactured by TSE or any other
Person.
3.2.4. Authorized Use of Gateway, TBF, Gateway Data, and TBF Data. ATG
shall use the Gateway, the TBF, Gateway Data and TBF Data only in
accordance with Exhibit A, Exhibit B and the TSE Requirements,
solely for the purpose of operating the ATG Matching System and
for no other purpose. ATG shall not furnish the TBF Data or
Gateway Data to any other Person, nor retransmit the TBF Data or
Gateway Data to any of its premises other than the premises of
the principal offices of ATG set out on Exhibit A. ATG agrees
that it shall not use the Gateway, TBF, Gateway Data or TBF Data
in violation of any laws including the Regulations.
3.2.5. Unauthorized Distribution of TBF Data or Gateway Data. In the
event that ATG uses the Gateway or TBF, or distributes TBF Data
or Gateway Data other than in accordance with Exhibit A and
Exhibit B, the TSE shall have the right to immediately suspend
all activity on the ATG Matching System including, the right to
immediately suspend any connection of the ATG Matching System
with the TSE System, or take any further action the TSE considers
necessary. Upon any such suspension, ATG shall cease to
distribute any TBF Data or Gateway Data. If, after 48 hours of
suspension, ATG has not remedied such breach to the TSE's
satisfaction, the TSE shall have the right to terminate this
Agreement immediately.
3.2.6. No Alteration of Gateway Data or TBF Data by ATG. ATG agrees not
to alter the TBF Data or Gateway Data in any manner that
adversely affects its accuracy, integrity or performance or that
renders it misleading. Notwithstanding the foregoing, ATG may
distribute derivative TBF data provided that such derivative data
is pre-approved by the TSE in writing.
3.2.7. Other Proposed Uses of Gateway Data or TBF Data by ATG. Any
proposed use of the Gateway, Gateway Data or TBF Data not
expressly described in Exhibit A or B shall require the prior
written authorization of the TSE. Any such proposed use shall be
submitted to the TSE in the form of a draft amendment to Exhibit
A or B as applicable. The TSE shall approve or
disapprove any such proposed use by ATG, such approval not to be
unreasonably withheld. ATG acknowledges and agrees that it acts
at its own risk in developing any new use of the Gateway, Gateway
Data, or TBF Data prior to receiving approval from the TSE, since
the TSE is not obligated by this Agreement to grant such
approval.
3.2.8. Form and Configuration of Gateway and TBF. ATG acknowledges and
agrees that nothing in this Agreement shall be deemed to
constitute an undertaking by the TSE to continue to provide
access through the Gateway or to the TBF in the present form or
configuration of either the Gateway or the TBF or to continue to
use existing communications facilities. The TSE, in its sole
discretion, may from time to time make modifications to the
Gateway, TBF, the TSE System and Support, including the interface
and operational requirements, irrespective of whether such
modifications would require changes to be made by ATG. The TSE
agrees to give ATG at least ninety (90) days prior notice of any
change in the speed, format, operating hours, or any other
material changes in the operational requirements that would
affect the ATG Matching System, unless a malfunction in the
system necessitates modifications on an accelerated basis or an
emergency situation precludes such advance notice. ATG shall bear
the responsibility and cost of making concurrent modifications to
the ATG Matching System.
3.2.9. No Use of TSE System After Termination. Upon termination of this
Agreement for whatever reason, ATG shall immediately cease any
and all use of the TSE System, including the Gateway and the TBF.
3.2.10. No Further Use of Gateway Data or TBF Data After Termination.
Upon termination of this Agreement for whatever reason, ATG shall
immediately cease any and all use of the Gateway Data and the TBF
Data. In the event that ATG wishes to use Gateway Data or TBF
Data following such termination, ATG shall obtain the prior
written consent of the TSE prior to such use.
3.3 Support. The TSE will provide ATG with Support as specified in Exhibit
E hereto.
3.4 Authentication Key. The TSE shall provide an Authentication Key to ATG
for use in connection with access through the Gateway and access to
the TBF. ATG hereby agrees that it shall keep the Authentication Key
strictly confidential and shall not permit any Person, other than its
employees and employees of its Affiliates who need to know and who are
bound by similar obligations of confidentiality, to have access to the
Authentication Key. ATG agrees that it shall inform the TSE
immediately if at any time it becomes aware of any unauthorized access
to or use of the Authentication Key or it becomes known to ATG that
the Authentication Key has become known to any person other than a
person authorized under this section to have such knowledge.
3.5 Decryption Key. The TSE shall provide a Decryption Key to ATG for use
in decoding the encrypted TBF Data. ATG hereby agrees that it shall
keep the Decryption Key strictly confidential and shall not permit any
Person, other than its employees who need to know, to have access to
the Decryption Key. ATG agrees
that it shall inform the TSE immediately if at any time it becomes
aware of any unauthorized access to or use of the Decryption Key or it
becomes known to ATG that the Decryption Key has become known to any
person other than a person authorized under this section to have such
knowledge.
3.6 ATG's Access Communications and Equipment Responsibilities. ATG shall
be responsible for: (i) obtaining its requisite quantity of common
carrier communication lines, (ii) the reliability and continued
availability of such communication lines, and (iii) connecting with
the TSE System at such places as may be designated from time to time
by the TSE. ATG shall meet any reasonable requirement of the TSE
concerning the location of such interconnections to permit Gateway
access and the receipt of TBF Data.
3.7 TSE-Provided Equipment. ATG agrees:
(a) to secure prompt, safe and free access to any TSE-provided
equipment and upon receiving 48 hours advance notice from the
TSE to permit the TSE or its agents to enter ATG's premises in
connection with such access;
(b) that any TSE-provided equipment will be used, stored and
maintained in an environment which, at a minimum, conforms to
the manufacturer or supplier environmental specifications;
(c) to provide the necessary power outlets, conduits, grounding and
anti-static needs and other utilities and services necessary
for the safe and effective operation and service of any TSE-
provided equipment in accordance with the manufacturer's or
supplier's specifications and/or other regulations, codes,
directives, standards or recommended practices as set out by
any regulatory authority or recognized standards organization;
and
(d) to provide all auxiliary suppliers and expendable items
necessary for the utilization of any TSE-provided equipment.
3.8 Project Plan. The TSE and ATG shall integrate the ATG Matching System
with the TSE System in accordance with the Project Plan attached to
this Agreement as Exhibit G. Each of the TSE and ATG shall perform the
responsibilities as set out in Exhibit G in the timeframes set out
therein.
3.9 Change Control Process. In the event that either Party wishes to
change the Project Plan, such party (the "Requesting Party") shall
provide the other Party (the "Responding Party") with a written
request outlining the nature and purpose of the change and the impact
to the Project Plan. Within ten (10) Business Days of receipt of such
request, the Responding Party shall advise the Requesting Party in
writing whether it agrees to such change and what the estimated impact
on the Responding Party's subsequent deliverables shall be. Within
five (5) Business Days of receipt of such response, the Requesting
Party shall notify the Responding Party in writing if it agrees to
such further modification. If the Requesting Party agrees, the Parties
shall
revise the Project Plan. If the Parties are unable to reach agreement,
such change shall not be made.
4. REGULATORY SERVICES
4.1 Access Approval. No Person shall be granted access to the ATG Matching
System until such Person has been approved by the TSE as a User for
trading in the ATG Matching System, and any other trading facility
accessible by or connected to ATG, in accordance with the Regulations.
ATG acknowledges that Users will be subject to the regulatory
jurisdiction of the TSE in the same manner as any authorized user of
the TSE System. The TSE shall have the right to revoke its approval of
any User. Upon any such revocation, ATG shall immediately cause the
User to cease its use of the ATG Matching System.
4.2 Use of or Access to the ATG Matching System by Unauthorized Persons.
If any Person not authorized to use or access the ATG Matching System
uses, accesses or attempts to use the ATG Matching System, ATG shall,
immediately upon becoming aware of such unauthorized use, access or
attempted use, inform the TSE and take any action necessary to
prohibit such unauthorized Person from any further use, access or
attempted use of the ATG Matching System. In the event that ATG fails
to prohibit any use, access or attempted use of the ATG Matching
System by an unauthorized Person, immediately upon becoming aware of
such use, the TSE shall have the right to suspend all activity on the
ATG Matching System, including the right to suspend any connection of
the ATG Matching System with the TSE System, or take any further
action the TSE considers necessary, until the unauthorized Person has
been effectively prohibited from using, accessing or attempting to use
the ATG Matching System. In addition, ATG shall be responsible for any
activity on the ATG Matching System by any such unauthorized Person.
If, after 10 business days of ATG's notification to the TSE of such
unauthorised access, ATG is not able to satisfy the TSE that the
unauthorized Person has been effectively prohibited from using,
accessing or attempting to use the ATG Matching System and that any
breach in the security of the ATG Matching System which may have led
to the unauthorized use, access or attempted use of the ATG Matching
System has been remedied, the TSE shall have the right to terminate
this Agreement immediately.
4.3 Regulatory Oversight. The TSE will be responsible for regulation and
oversight of ATG for its operations of the ATG Matching System which
is integrated with the TSE, in the same manner as for the TSE's
continuous auction market. Regulation and oversight services shall
include, but shall not be limited to:
4.3.1. Liaison with Regulatory Authorities. The TSE shall act as sole
liaison with all securities regulatory authorities and self-
regulatory organizations with respect to the business of ATG and
the operation of the ATG Matching System.
4.3.2. Regulatory Approvals. The TSE shall, on behalf of ATG, use
reasonable efforts to obtain all regulatory approvals necessary
with respect to the
business of ATG and the operation of the ATG Matching System
integrated with the TSE, and any other business to be conducted
by ATG and approved by the TSE.
4.3.3. Applicable Regulations. The TSE shall use reasonable efforts to
ensure that ATG is aware of and understands those Regulations
that the TSE identifies as being applicable to ATG and the ATG
Matching System. The TSE shall monitor new initiatives for
Regulations applicable to ATG and the ATG Matching System in all
relevant jurisdictions and shall use reasonable efforts to bring
to ATG's attention potential and actual changes in Regulations
that may affect the ATG Matching System. The TSE, in consultation
with ATG, shall use reasonable efforts to effect changes to
Regulations and if, acting reasonably, the TSE believes it is
cost-effective or necessary in the public interest to do so.
4.3.4. Approval of Trading Financial Instruments. ATG may only trade
such securities and other financial instruments as have been
authorized by the TSE ("Authorized Securities"). Prior to posting
any financial instrument for trading in the ATG Matching System,
ATG will obtain the TSE's written authorization.
4.3.5. Approvals of ATG Changes. ATG shall not make any of the following
changes without obtaining the prior written approval of the TSE's
regulatory division, such consent not to be unreasonably withheld
or delayed:
(a) any change to the ATG Matching System other than as
contemplated in section 2.3;
(b) any change to the business of ATG, being the operation of
the ATG Matching System integrated with the TSE auction
market;
(c) amalgamating, merging or consolidating ATG with another
entity, or selling, leasing or otherwise disposing of all
or substantially all of the assets of ATG;
(d) investing in any other entity;
(e) entering into any agreement with any director or
shareholder of ATG or any Affiliate;
(f) selling any of its securities;
(g) encumbering its technology; and
(h) opening an office outside the Territory.
4.3.6. Approval of Share Transfers, Officer Appointments and Director
Nominations. ATG shall obtain the TSE's prior written approval
for any
transfer of shares, the appointment of any officer or the
nomination of any director, such approval not to be unreasonably
withheld. ATG shall provide all such information requested by the
TSE regarding such proposed shareholder, officer or director. The
TSE may conduct any such investigations of such shareholder,
officer or director as it considers reasonably necessary,
including criminal records checks and background checks.
4.3.7. Financial Reporting. ATG shall, within 48 hours of receiving
notice from the TSE, or if for regulatory reasons, immediately,
provide the TSE with all financial information and reports
required by the Regulations, and shall comply with all financial
reporting requirements contained in the Regulations.
4.3.8. Access to ATG Matching System. ATG shall provide access of the
ATG Matching System to all Persons authorized to trade on the TSE
on such terms and conditions approved by the TSE for access to
the ATG Matching System.
4.3.9. Fees to Access ATG. ATG must establish its fees in a manner that
is non-discriminatory to any Person authorized to trade on the
TSE.
4.3.10. Designated Clearing Broker. All Users must appoint at least one
Designated Clearing Broker.
4.3.11. Approval of Agreements with Designated Clearing Brokers. ATG
shall obtain the TSE's prior written approval of the terms and
conditions contained in its agreement with all Designated
Clearing Brokers.
4.4 Surveillance. The TSE shall subject all orders and trades sent to the
TSE System from the ATG Matching System to a surveillance program
consistent with the program for the TSE System. The TSE will have the
same jurisdiction, rights and authority over trading in the ATG System
as it has for the TSE System. The TSE may request any information
required for regulatory purposes at any time and, if so requested, ATG
shall provide such information forthwith, in the requested format.
4.5 Trades.
4.5.1. The Parties agree that matches in Authorized Securities once
effected through the ATG Matching System and promptly reported
electronically to the TSE, will be reported as TSE trades in
accordance with the TSE's regular procedures for reporting such
trades.
4.5.2. The TSE may, in its regulatory capacity, disallow or cancel any
match that was accepted and reported and will notify ATG
immediately of its decision. ATG shall perform all acts necessary
to implement the TSE's decision.
4.5.3. Where requested in writing by all parties to a trade, the TSE
may, in its sole discretion, reverse a processed trade.
4.6 Discipline. The TSE will subject ATG, the Users and all orders and
trades sent to the TSE System from the ATG Matching System to the same
investigation, enforcement and discipline policies and procedures in
place at the TSE, from time to time.
4.7 Compliance. ATG shall at all times comply with all Regulations. ATG
shall assist the TSE in carrying out any TSE investigation related to
the TSE's surveillance or discipline activities.
4.8 Necessary Changes to the ATG System. For regulatory purposes, the TSE
may, in its sole discretion, from time to time require ATG to change the
ATG Matching System and ATG shall be obligated to make such changes
within a reasonable time or such other time period required under the
Regulations. If any such change is made, ATG shall submit to the TSE an
amended Exhibit A, reflecting such change.
4.9 Pre-Trade Information and ATG Records.
4.9.1. Information Requested. For the purpose of performing its
regulatory responsibilities, the TSE may request information or
documents, including any Confidential Information, orders or
trade related information communicated between ATG and any User,
from ATG relating to:
(i) an Authorized Security traded through the facilities
of the TSE; or
(ii) a User of ATG (including information or documents
concerning the identity, trading activity and
positions of the User).
ATG shall provide the TSE with any such information requested. As
part of its regulatory oversight, the TSE may forward such
information to another regulatory body including assisting
another exchange, securities commission or other self-regulatory
organization in performing its regulatory function.
4.9.2. Pre-Trade Information. Upon request by the TSE, ATG shall
immediately make available to the TSE all pre-trade information
required for surveillance purposes.
4.9.3. ATG Records. Upon request by the TSE, ATG shall, within 48 hours,
make available all records for audit, investigation and
enforcement purposes.
4.10 Access to ATG Premises. Notwithstanding section 2.8, in order to
discharge its regulatory, compliance and enforcement obligations, the
TSE and its representatives, at any time and without notice shall have
access to ATG's premises to examine and inspect any instrument,
document, program and other information as may be necessary.
4.11 Records to be Maintained by ATG. ATG shall keep all books, records,
reports and other information required by the Regulations for such time
period and in such format as required by the Regulations and/or the TSE.
In the event that ATG decides to outsource such record keeping, ATG must
obtain the TSE's prior written consent, including consent of the terms
and conditions of such arrangement.
5. MARKETING SERVICES
5.1 Marketing
5.1.1. Co-operative Marketing. ATG and the TSE agree to co-operate on
marketing and promotional materials including press releases
relating to the ATG Matching Services operating as a Facility of
the TSE, brochures and conferences where appropriate.
5.1.2. Announcements. Any material announcement regarding this Agreement
or the relationship between ATG and the TSE will be reviewed and
approved by both Parties prior to its distribution.
5.1.3. Product Knowledge. Customer facing staff from both organisations
will be required to have basic product knowledge for both the ATG
Matching System and the TSE System.
5.1.4. Sales. ATG will act as primary lead in dealing with potential
users of the ATG Matching System. The TSE's customer facing staff
will refer leads and queries to ATG. Where appropriate ATG and
the TSE would arrange for joint presentations to customers or
potential customers.
5.1.5. Product Planning. ATG and the TSE will meet on a regular basis
(at a minimum quarterly) to review product issues, and discuss
short and long term plans regarding the ATG Matching System at
the TSE.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Confidential Information
6.1.1. Non-Disclosure. Except as provided in 4.9.1, each Party shall
treat as confidential and shall not disclose to or transmit to
any third party the other Party's Confidential Information. Each
Party shall use reasonable measures to protect the other Party's
Confidential Information, taking steps at least commensurate with
the measures it uses to protect its own similar information.
6.1.2. Required Disclosure. Except as provided in section 4.9.1, a Party
may reveal Confidential Information of the other Party to a
regulatory agency or court (or similar body) provided advance
notice is given to the other Party (if permitted under law) and
reasonable steps are taken to seal the information provided to
the agency or court so as to try to prevent access to it by third
parties.
6.1.3. Terms of Agreement. Each Party agrees to keep confidential the
terms of this Agreement and not disclose same to third parties,
provided that disclosure shall be permitted to the Party's
professional advisors, accountants, bankers and similar persons,
as well as prospective merger or similar partners. Notwithstanding
the foregoing, either Party and its Affiliates may disclose the
terms of this Agreement if required by the Regulations or similar
legislation in the jurisdiction of such Party or Affiliate,
provided that the Party or its Affiliate shall provide the other
Party with prior notice of such disclosure.
6.2 Ownership of the Gateway Data, TBF Data and ATG Matching System
6.2.1. Gateway and ATG Matching System. The TSE shall own all
Intellectual Property Rights in the Gateway and the TBF. ATG and
its Affiliates own all Intellectual Property Rights in the ATG
Matching System.
6.2.2. Gateway Data. ATG hereby assigns to the TSE all of its right,
title and interest, including, all its copyright, in and to the
Gateway Data. The entry of any Gateway Data into the TSE System or
the Gateway via the ATG Matching System shall be conclusively
deemed to confirm that such right, title and interest in the
Gateway Data is, immediately upon such entry of Gateway Data,
assigned to the TSE without further action by ATG or the TSE.
6.2.3. TBF Data. The Parties acknowledge and agree that all Intellectual
Property Rights in the TBF Data shall rest with the TSE. ATG
agrees that the TBF Data is not within the public domain. Any
portion of TBF Data that is provided directly or indirectly to ATG
by the TSE pursuant to this Agreement, has been derived from
databases owned by the TSE, is copyrighted by the TSE, and as such
ATG's use of such TBF Data is subject to the limitations set out
in this Agreement.
6.3 TSE Marks
6.3.1. License of the TSE Marks. The TSE hereby grants to ATG a royalty
free (subject to the other payments in this Agreement) license to
use the TSE Marks to indicate that ATG is a Facility of the TSE
during the term of this Agreement. Whenever ATG uses a ▇▇▇ ▇▇▇▇,
the first usage of the ▇▇▇ ▇▇▇▇ in any particular item of
literature or material prepared by or on behalf of ATG shall
include an asterisk as part of the ▇▇▇ ▇▇▇▇ and a notice on the
bottom of that page or at the end of the materials indicating that
"TSE" (or other ▇▇▇ ▇▇▇▇) is a trademark owned by the TSE.
6.3.2. Standards and Approval. ATG agrees that the services it provides
in conjunction with the TSE Marks will be of a nature, standard
and quality as required by this Agreement. For each use of a ▇▇▇
▇▇▇▇ by ATG, ATG shall provide the TSE an advance draft copy of
each of the materials that will contain the TSE Marks to permit
the TSE to review and approve the proposed
use of the TSE Marks, such approval not to be unreasonably
withheld. The use shall be deemed approved for use in such
materials if the TSE does not object to its use within five
business days after the TSE confirms to ATG that it has received
the materials for approval. Once the TSE has approved any such
materials, subsequent reprints of the identical materials need not
be submitted for review and approval. If the TSE does object, then
the Parties shall expeditiously attempt to resolve the objection
before publication of the material.
6.3.3. Ownership. The TSE shall at all times have title to and ownership
of the TSE Marks, including the goodwill and reputation in such
marks. ATG shall not acquire any right, title or interest in or to
the TSE Marks, and all goodwill associated therewith shall enure
exclusively to the benefit of the TSE. ATG shall only have the
limited license rights to the TSE Marks expressly provided by this
Agreement. ATG shall not during the term of this Agreement or at
any time thereafter, dispute or contest for any reason whatsoever,
directly or indirectly, the validity, ownership or enforceability
of the TSE Marks, nor counsel, procure or assist anyone else to do
any such acts. ATG shall not register a trademark containing a ▇▇▇
▇▇▇▇.
6.3.4. Infringement. ATG shall report immediately to the TSE any
infringement of, imitation of, or challenge to the TSE's Marks.
The TSE shall determine the measures it is willing to take to
prosecute such infringement.
6.4 ATG Marks
6.4.1. License of the ATG Marks. ATG hereby grants to the TSE a royalty
free (subject to the other payments in this Agreement) license to
use the ATG Marks to indicate that ATG is a facility of the TSE
during the term of this Agreement. Whenever the TSE uses an ATG
▇▇▇▇, the first usage of the ATG ▇▇▇▇ in any particular item of
literature or material prepared by or on behalf of the TSE shall
include an asterisk as part of the ATG ▇▇▇▇ and a notice on the
bottom of that page or at the end of the materials indicating that
"ATG" (or other ATG ▇▇▇▇) is a trademark owned by ATG.
6.4.2. Standards and Approval. The TSE agrees that the services it
provides in conjunction with the ATG Marks will be of a nature,
standard and quality as required by this Agreement. For each use
of a ATG ▇▇▇▇ by the TSE, the TSE shall provide ATG an advance
draft copy of each of the materials that will contain the ATG
Marks to permit ATG to review and approve the proposed use of the
ATG Marks, such approval not to be unreasonably withheld. The use
shall be deemed approved for use in such materials if ATG does not
object to its use within five business days after ATG confirms to
the TSE that it has received the materials for approval. Once ATG
has approved any such materials, subsequent reprints of the
identical materials need not be submitted for review and approval.
If ATG does object, then the Parties shall
expeditiously attempt to resolve the objection before publication
of the material.
6.4.3. Ownership. ATG shall at all times have title to and ownership of
the ATG Marks, including the goodwill and reputation in such
marks. The TSE shall not acquire any right, title or interest in
or to the ATG Marks, and all goodwill associated therewith shall
enure exclusively to the benefit of ATG. The TSE shall only have
the limited license rights to the ATG Marks expressly provided by
this Agreement. The TSE shall not during the term of this
Agreement or at any time thereafter, dispute or contest for any
reason whatsoever, directly or indirectly, the validity, ownership
or enforceability of the ATG Marks, nor counsel, procure or assist
anyone else to do any such acts. The TSE shall not register a
trademark containing an ATG ▇▇▇▇.
6.4.4. Infringement. The TSE shall report immediately to ATG any
infringement of, imitation of, or challenge to the ATG Marks. ATG
shall determine the measures it is willing to take to prosecute
such infringement.
7. THIRD PARTY INTELLECTUAL PROPERTY CLAIMS
7.1 Third Party Claims Against ATG. In the event that there are any
liabilities, causes of action, judgements, damages, losses, claims and
expenses (including reasonable attorneys' fees) resulting from or
arising out of any claim relating to the infringement or alleged
infringement of any patent, copyright, trade secret or other
intellectual property right of any third party arising from any use or
connection to the ATG Matching System or the ATG Marks, ATG shall
immediately notify the TSE and the TSE shall have the right to
immediately suspend all activity on the ATG Matching System, including,
the right to suspend any connection of the ATG Matching System with the
TSE System, or take any further action the TSE considers necessary,
until the ATG Matching System and/or the ATG ▇▇▇▇(s), have, to the
satisfaction of the TSE, acting in its sole discretion, been modified or
replaced so that it or they no longer infringe, provided that any such
modification(s) or replacement(s) must be approved in advance by the TSE
under, and must in all other ways be consistent with, the terms of this
Agreement. If such modification or replacement has not been made by ATG
in a time frame which the TSE, acting in its sole discretion, deems
reasonable, the TSE shall have the right to terminate this Agreement.
7.2 Indemnification by ATG. ATG shall indemnify, defend and hold the TSE
(and its Affiliates and agents) harmless from and against any and all
liabilities, causes of action, judgements, damages, losses, claims and
expenses (including reasonable legal fees) resulting from or arising out
of any claim relating to the infringement or alleged infringement of any
patent, copyright, trade secret or other intellectual property right of
any third party arising from any use or connection to the ATG Matching
System or the ATG Marks, provided, however, that upon becoming aware of
any such claim the TSE promptly notifies ATG in writing of the claim. If
such claim causes the disruption of the use of the ATG Matching System,
ATG shall, in defending against
any such claim or action: (i) contest; (ii) settle; or (iii) modify or
replace any component(s) of the ATG Matching System or the ATG Marks so
that it or they no longer infringe, provided that any such
modification(s) or replacement(s) must be approved in advance by the TSE
under, and must in all other ways be consistent with, the terms of this
Agreement.
7.3 Indemnification by TSE. The TSE shall indemnify, defend and hold the ATG
(and its Affiliates and agents) harmless from and against any and all
liabilities, causes of action, judgements, damages, losses, claims and
expenses (including reasonable legal fees) resulting from or arising out
of any claim relating to the infringement or alleged infringement of any
patent, copyright, trade secret or other intellectual property right of
any third party arising from any use or connection to the TSE System or
the TSE Marks, provided, however, that upon becoming aware of any such
claim ATG promptly notifies the TSE in writing of the claim. If such
claim causes the disruption of the use of the TSE System, the TSE shall,
in defending against any such claim or action: (i) contest; (ii) settle;
or (iii) modify or replace any component(s) of the TSE System or the TSE
Marks so that it or they no longer infringe, provided that any such
modification(s) or replacement(s) must in all other ways be consistent
with the terms of this Agreement.
8. RECORDS
8.1 Records. ATG shall keep books and records of its activities related to
this Agreement, including detailed records necessary to calculate and
confirm the amounts payable by ATG to the TSE hereunder. ATG shall keep
such records (i) to at least standards ATG uses to keep its own similar
records and (ii) during the term of this Agreement and for a period of
seven years after its expiry or termination.
9. FEES AND PAYMENT
9.1 Fees. In consideration for the TSE providing the services described in
this Agreement, ATG and the TSE shall share the revenue generated from
the ATG Matching System as set out in Schedule C.
9.2 Payment Terms.
9.2.1. Timing. The TSE shall ▇▇▇▇ Users in accordance with the rate
specified in Schedule C, as amended from time to time, on a
monthly basis. The TSE will remit the amount owing to ATG for each
month within 45 days of the TSE issuing the invoices for such
month.
9.2.2. Taxes. In addition to the fees, expenses and other amounts
required to be paid by ATG to the TSE hereunder, ATG shall pay all
applicable taxes on such amounts. In addition, if ATG is required
by applicable law to deduct or withhold any such tax, charge or
assessment from the amounts due to the TSE, then the amounts due
to the TSE shall be increased so that the net
amount actually received by the TSE after the deduction or
withholding of any such tax, TSE charge or assessment will equal
one hundred percent (100%) of the applicable charges. Without
limiting the generality of the foregoing, the Parties agree that
the treatment of GST will be in accordance with the applicable
legislation and the Parties will act in good faith to negotiate
the most appropriate method of collecting and remitting such tax.
10. REPRESENTATIONS AND WARRANTIES
10.1 No Breach of Other Agreements. Each Party represents and warrants to the
other Party that the entering into of this Agreement shall not conflict
with or constitute a breach under any other agreement to which the Party
is a party.
10.2 Operation of ATG Matching System. ATG represents, warrants and covenants
that the design, development, acquisition, installation, testing,
implementation, operation and maintenance of the ATG Matching System
will not interfere with or adversely affect the use of and/or access to
the Gateway, the TBF and the TSE System by the TSE or any other Person,
or otherwise interfere with the operation of the TSE System, the TBF and
the TSE System, including, the TBF and the Gateway, except in
circumstances where such interference or adverse effect arose from:
(i) an error, problem or change to the TSE System of which ATG did not
have specific notice or other notice through the TSE's regular
communications; or
(ii) the negligence of the TSE or the TSE's failure to follow
notification procedures;
and ATG could not have reasonably avoided such interference or
effect.
10.3 Description of ATG Matching System. ATG represents and warrants that the
description of the ATG Matching System, its equipment, software,
communications facilities related thereto and set forth in Exhibit A, is
true, complete and not misleading. ATG shall make available for review
upon reasonable advance written notice all records and supporting
documentation necessary for TSE personnel to monitor compliance with
this Agreement and verify the accuracy and completeness of the
information set forth in Exhibit A.
10.4 Ownership of the Gateway, Gateway Data, TBF and TBF Data. The TSE
represents, warrants and covenants that it is the exclusive owner of, or
has obtained all necessary rights to, the Gateway, Gateway Data, TBF and
TBF Data and of all Intellectual Property Rights and other proprietary
rights in the Gateway, Gateway Data, TBF and TBF Data and has full power
and authority to grant the rights granted in this Agreement without the
consent of any other party, and that the Gateway, Gateway Data, TBF and
TBF Data and the use of the Gateway, Gateway Data, TBF and TBF Data as
permitted by this Agreement does not and will not infringe upon or
violate the proprietary rights of any third party which proprietary
rights include, without limitation, patents, copyrights, trademarks and
trade secrets.
10.5 Ownership of the ATG Matching System. ATG represents, warrants and
covenants that it is the exclusive owner of, or has obtained all
necessary rights to, the ATG Matching System and of all Intellectual
Property Rights and other proprietary rights in the ATG Matching System
and has full power and authority to grant the rights granted in this
Agreement without the consent of any other party, and that the ATG
Matching System and the use of the ATG Matching System as permitted by
this Agreement does not and will not infringe upon or violate the
proprietary rights of any third party which proprietary rights include,
without limitation, patents, copyrights, trademarks and trade secrets.
11. INDEMNIFICATION, DISCLAIMERS AND LIMITATION OF LIABILITY
11.1 Mutual Indemnification. Each Party (the "Indemnitor") agrees to
indemnify and hold harmless the other Party (the "Indemnitee") and its
affiliates and their officers, employees, directors and agents from any
and all damages awarded by a court, costs and expenses or related
settlement costs, and reasonable legal fees, related to an actual claim,
action or proceeding instituted by a third party against the Indemnitee
based on an allegation of a breach of a warranty by the Indemnitor
referred to in Section 10. As a condition to an Indemnitee's right of
indemnification hereunder, the Indemnitee shall be required to: (i)
provide the Indemnitor with prompt written notice of any claim, action
or proceeding giving rise to indemnification; (ii) grant the Indemnitor
sole control of the defence or settlement of the claim, action or
proceeding; and (iii) cooperate with the Indemnitor in connection with
such defence or settlement at the Indemnitor's expense.
11.2 ATG Indemnification of TSE. ATG shall indemnify the TSE for any loss,
damage, cost, expense or other liability or claim (including loss of
business profits, trading losses, losses of anticipated profits,
business interruption, loss by reason of shutdown in operations or for
increased expenses of operation, loss of business information, or for
indirect, special, punitive, consequential or incidental loss or damage
or other pecuniary loss) suffered or incurred by or against the TSE as a
result of ATG's use, or any use through the ATG Matching System, of the
TSE System.
11.3 Mutual Disclaimer. Except for the express representations, warranties,
conditions, covenants and/or undertakings in this Agreement, the Parties
hereby disclaim all warranties, representations, conditions, covenants
and undertakings, express or implied, including warranties or conditions
of merchantable quality, merchantability or fitness for a particular
purpose or use.
11.4 TSE Disclaimer. The TSE shall obtain information for inclusion in or for
use in the calculation of the TBF Data and Gateway Data from sources
that the TSE considers reliable, but the TSE accepts no responsibility
for, and shall have no liability for, any errors, omissions or
interruptions therein. The TSE does not guarantee the transmission,
sequence, accuracy, timeliness and/or the completeness of the TBF Data,
Gateway Data or any data included therein. The TSE makes no
representation, warranty or condition, express or implied, as to the
results to be obtained by any person or entity from the use of the TBF
Data, Gateway Data or any data included therein. The TSE makes no
express or implied warranties or conditions and expressly disclaims all
warranties or conditions of merchantability, merchantable quality or
fitness for a particular purpose or use with respect to the TBF Data,
Gateway Data or any data included therein. The TSE makes no express
warranty regarding the performance of the TSE System. ATG acknowledges
that the TSE does not warrant that the TSE System will operate
uninterrupted or error free. ATG shall be responsible for all inputs
through the Gateway. TSE hereby extends to ATG and acknowledges that ATG
shall have the benefit of any and all general disclaimer language that
the TSE publishes for its own benefit, whether in written materials, on
its website or in other electronic form, or otherwise, other than
pursuant to the TSE Requirements.
11.5 ATG Disclaimer. Other than as expressly set out herein, ATG makes no
express or implied representations, warranties or conditions and
expressly disclaims all express or implied representations, warranties
and conditions, including those of merchantability, merchantable quality
and fitness for a particular purpose or use, with respect to the ATG
Matching System, or any performance thereof. The TSE acknowledges that
ATG does not warrant that the ATG Matching System will operate
uninterrupted or error free.
11.6 Limitation of Liability.
(a) The TSE's maximum liability is for direct damages in an amount not
to exceed three (3) months of revenues received by the TSE in
accordance with section 9 of this Agreement.
(b) The TSE shall not be liable for any other loss, damage, cost,
expense or other liability or claim (including, loss of business
profits, trading losses, loss of anticipated profits, business
interruption, loss by reason of shutdown in operations or for
increased expenses of operation, loss of business information, or
for indirect, special, punitive, consequential or incidental loss
or damage or other pecuniary loss) suffered or incurred by or
against ATG or any User:
(i) as a result of the use by ATG of the TSE System. By making
use of the TSE System, ATG expressly agrees to accept all
liability arising from its use;
(ii) arising from any negligent, reckless or wilful act or
omission of the TSE or any of its subsidiaries, or any
governor, director, officer, employee, committee member or
independent contractor of the TSE or any of its
subsidiaries;
(iii) arising from any act or omission of The Canadian Depository
for Securities Limited or any other clearing corporation.
11.7 Excusable Delays. Neither ATG nor the TSE shall be liable for delay or
failure of performance of any of the acts required by this Agreement when
such delay or failure arises from circumstances beyond the control and
without the gross negligence or wilful misconduct of the parties. Such
causes may include, without limitation, acts of God, acts of government
in its sovereign or contractual capacity, acts of a public enemy, acts of
civil or military authority, war, riots, civil strife, terrorism,
blockades, sabotage, rationing, embargoes, epidemics, earthquakes, fire,
flood, quarantine restrictions, power shortages or failures, utility or
communication failures or delays, labour disputes, strikes, or shortages,
supply shortages, equipment failures, or solitary malfunctions. The time
for performance of any act delayed by such events may be postponed for a
period equal to the delay.
11.8 ATG User Agreements. ATG shall ensure that the agreement between ATG and
each of its Users contains provisions similar to sections 11.2, 11.3,
11.4 and 11.6(b) limiting the TSE's liability to Users. ATG shall provide
the TSE with a copy of the proposed provisions for its prior approval. In
addition, ATG shall ensure that the TSE is a third party beneficiary of
these provisions under the User agreement.
12. TERM AND TERMINATION
12.1 Term. Unless terminated earlier under sections 2.4, 2.7, 3.2.5, 4.2,
12.2, 12.3, 12.4 or 16.1, the term of this Agreement shall be for an
initial period of five years, commencing on the date specified above and
expiring on the fifth anniversary thereof, at which time it shall
automatically continue indefinitely until a Party terminates this
Agreement effective at the end of the initial term or at any time
thereafter by notifying the other Party in writing of its intention to
terminate at least 180 days before the effective date of termination.
12.2 Termination. In addition to the termination rights under 2.4, 2.7, 3.2.5,
4.2 and 12.3, 12.4 and 16.1, the Parties may terminate this Agreement in
accordance with the following provisions:
12.2.1. Breach of Material Term. Either Party may terminate this Agreement
if the other Party breaches a material term of this Agreement and
such breach continues unremedied for 45 days after receipt of
written notice specifically setting forth the nature of such
breach.
12.2.2. Material Damage to Reputation or Goodwill. At any time during the
term of this Agreement, either Party may give the other Party
ninety (90) days prior written notice of termination if the
terminating Party believes reasonably and in good faith that
material damage or harm is occurring to the reputation or goodwill
of that party by reason of its continued performance hereunder, and
such notice shall be effective on the date specified therein of
such termination,
unless, if applicable, the other party shall correct the condition
causing such damage or harm within the notice period.
12.2.3. Insolvency. Either Party may terminate this Agreement in the event
that the other Party becomes insolvent or makes an assignment for
the general benefit of auditors, or any proceedings shall be
commenced by or against a Party under any bankruptcy or insolvency
laws or proceedings for the appointment of a receiver or a
receiver-manager or any other official with similar powers for
such Party or if such Party ceases to carry on business.
12.2.4. TSE Termination. The Parties have agreed to certain provisions in
this Agreement based, in large part, on the state of Regulations at
the time of this Agreement. The TSE may terminate this Agreement
upon ninety (90) days (or upon such lesser period of time if
required pursuant to a court order or Regulation) prior written
notice to ATG if:
(i) the TSE is informed of the final adoption of any Regulation
or the issuance of any interpretation that materially
impairs, or makes materially more expensive, the TSE's
ability to perform its obligations as contemplated by this
Agreement;
(ii) any litigation or proceeding is threatened or commenced and
the TSE reasonably believes that such litigation or
proceeding would have a material and adverse effect upon
the TSE Marks or upon the ability of the TSE to perform
under this Agreement; or
(iii) in the event that the scope of regulatory services provided
under section 4 changes and ATG does not agree to such
changes.
12.3 Termination for ATG Failure to Achieve Business Standards. In the event
that ATG does not achieve the volume thresholds set out in Exhibit F, the
TSE shall have the right to terminate this Agreement upon ninety (90)
days' prior written notice to ATG. This shall be the TSE's exclusive
remedy in the event ATG fails to meet the volume thresholds.
12.4 Termination for Change of Control. In the event that (i) a controlling
interest in a Party is acquired directly or indirectly by a third party
who is not an Affiliate of such party prior to such transaction, (ii) a
Party merges into, consolidates with, or otherwise is acquired by
directly or indirectly, any third party who is not an Affiliate of it
prior to such transaction; or (iii) a Party is sold or substantially all
of its assets are sold directly or indirectly to a third party (each, a
"Change in Control"), the TSE or ATG shall provide notice to the other
Party setting forth the details of such Change in Control promptly upon
such Change in Control or if, permitted by law or applicable regulations,
at least forty-five (45) days prior to such Change in Control. For the
purposes of this section 12.4, the term "control" (including the terms
"controlling", "controlled by", and "under common control with"), means
the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a party, whether through the
ownership of voting
securities, by contract or otherwise. The Party receiving the notice of a
Change in Control may, within thirty (30) days of receiving such notice,
terminate this Agreement on thirty (30) days' prior written notice.
12.5 Effect of Termination. Upon the expiry or termination of this Agreement:
(a) all licenses granted hereunder by either party to the other party
shall terminate, and ATG shall cease to be entitled to access the
TSE System;
(b) each Party shall remain liable to pay to the other Party all
amounts due and payable or accrued up to the time of expiry or
termination;
(c) each Party shall promptly return the other Party's Confidential
Information, or destroy it and provide a certificate from a senior
officer attesting to no Confidential Information of the other Party
being retained in the possession or control of the Party;
(d) ATG shall cease to refer to itself a "Facility of the TSE" and
shall cause its Affiliates and any other parties with whom it has a
contractual relationship to cease using such references, and shall
use commercially reasonable efforts to ensure all other parties
using such references cease to do so; and
(e) Marketing services under section 5 of this Agreement shall cease.
12.6 Survival. Notwithstanding any other provision of this Agreement, Sections
3.2.9, 3.2.10, 4.3.7, 4.3.8, 4.6, 4.7, 4.9, 4.10, 4.11, 6.1, 6.2, 7, 8.1,
11 and 12.6 shall survive the termination of this Agreement.
13. DISPUTE RESOLUTION
13.1 Dispute Resolution.
(a) In the event of any disagreement regarding performance under or
interpretation of this Agreement ("Dispute") and prior to the
commencement of any formal proceedings, the parties shall continue
performance as set forth in this Agreement and shall attempt in
good faith to reach a negotiated resolution by designating a senior
representative of appropriate authority to resolve the Dispute.
Formal proceedings for the arbitration of such Dispute in
accordance with subsection (b) may not be commenced until the later
of (i) the expiration of thirty (30) days after the initial request
for such negotiations, or (ii) either of the designated
representatives concluding in good faith and notifying the other
designated representative that amicable resolution through
continued negotiation of the matter in issue does not appear
likely.
(b) Subject to Section 13.2, the TSE and ATG agree that if they are
unable to resolve any Dispute as contemplated by subsection (a),
then such Dispute shall be referred for arbitration before a single
arbitrator in accordance with
the rules of the Arbitrations Act (Ontario) (the "Act"). If within
15 days of either party requesting such arbitration the Parties
cannot mutually agree upon an arbitrator, the arbitrator will be
selected by the process provided in the Act. The decision of the
arbitrator shall be final and binding upon the parties. The fees of
the arbitrator shall be borne equally by the Parties. The
arbitration shall be held in Toronto.
13.2 Exception. Notwithstanding anything else contained in this Section 13,
any Dispute relating to the confidentiality or license provisions of this
Agreement, including any Dispute relating to Intellectual Property
Rights, may be pursued through regular judicial process (including
seeking injunctive relief).
14. ASSIGNMENT AND CHANGE IN CONTROL
14.1 Assignment. This Agreement is solely and exclusively between the Parties
hereto and, except to the extent otherwise expressly provided herein,
shall not be assigned or transferred, nor shall any duty hereunder be
delegated or sub-contracted, by ATG, without the prior written consent of
the TSE, and any attempt to so assign or transfer this Agreement or
delegate any duty hereunder without such written consent shall be null
and void. This Agreement shall be valid and binding on the parties hereto
and their successors and permitted assigns.
14.2 Subcontractors. ATG must obtain the TSE's prior written approval for
using a subcontractor for the provision of services to support its
obligations hereunder, other than in circumstances where an individual
independent consultant or contractor is retained to work together with
ATG to perform its services hereunder, provided that ATG provides the TSE
with a non-disclosure agreement entered into by each independent
consultant in the form prescribed by the TSE. Where the TSE consents to
ATG's use of a subcontractor, ATG shall continue to remain responsible
for the performance of the subcontractor including ensuring that the
subcontractor complies with the audit provisions of this Agreement. ATG
shall supervise and be liable for the work performed by all
subcontractor, including independent contractors, and any breach by such
subcontractor of such subcontractors' obligation to the TSE. ATG agrees
that it shall indemnify and make the TSE whole from any unauthorized
costs or damages suffered by the TSE as the result of any conduct by any
subcontractor, including independent contractors, hired by ATG to provide
services in connection with the ATG Matching System.
15. GENERAL
15.1 Counterparts. This Agreement may be executed in one or more counterparts
which shall each be considered an original, but all of which together
shall constitute one and the same Agreement.
15.2 Entire Agreement. This Agreement, including the Exhibits hereto (which
are hereby expressly incorporated into and made a part of this
Agreement), constitutes the entire
agreement of the Parties hereto with respect to its subject matter, and
supersedes any and all previous agreements between the parties with
respect to the subject matter of this Agreement. There are no oral or
written representations, agreements or understandings except as provided
herein.
15.3 Independent Contractors. The parties to this agreement are independent
contractors and no partnership, joint venture, enterprise or employment
relationship shall be created. No provision of this Agreement is intended
to confer upon any person other than the parties hereto any rights or
remedies hereunder or inferred by the existence or performance of this
Agreement.
15.4 Waivers. No waiver, modification or amendment of any of the terms and
conditions hereof shall be valid or binding unless set forth in a written
instrument signed by duly authorized officers of both Parties. The delay
or failure by any Party to insist, in any one or more instances, upon
strict performance of any of the terms or conditions of this Agreement or
to exercise any right or privilege herein conferred shall not be
construed as a waiver of any such term, condition, right or privilege,
but the same shall continue in full force and effect.
15.5 Continued Protection. No breach, default or threatened breach of this
Agreement by either party shall relieve the other party of its
obligations or liabilities under this Agreement with respect to the
protection of the property or proprietary nature of any property which is
the subject of this Agreement.
15.6 Terms of Agreement. Each Party agrees to keep confidential the terms of
this Agreement and not disclose same to third parties, provided that
disclosure shall be permitted to the Party's professional advisors,
accountants, bankers and similar persons, as well as prospective merger
or similar partners.
15.7 Notices. All notices and other communications under this Agreement shall
be: (i) in writing, and (ii) delivered by hand (with receipt confirmed in
writing), by registered or certified mail (return receipt requested), or
by facsimile transmission (with receipt confirmed in writing), to the
address or facsimile number set forth below or to such other address or
facsimile number as either party shall specify by a written notice to the
other:
If to the TSE:
The Toronto Stock Exchange Inc.:
The Exchange Tower
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Director, Equity Markets
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to ATG:
Ashton Technology Canada Inc.
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Notices so given shall be deemed received upon receipt in the case of
delivery by hand or facsimile transmission, or after the fifth day after
the mailing thereof if sent by mail.
15.8 Governing Law. This Agreement shall be interpreted, construed and
enforced in accordance with the laws of the Province of Ontario without
reference to or inclusion of the principles of choice of law or conflicts
of law of that jurisdiction. It is the intent of the parties that the
substantive law of the Province of Ontario (excluding the conflict of law
principles of the laws of that Province) shall govern this Agreement. The
Parties agree that the U.N. Convention on the International Sale of Goods
shall not apply to this Agreement. Each party agrees that any legal
action, proceeding, controversy or claim between the parties arising out
of or relating to this Agreement may be brought and prosecuted in the
courts of the Province of Ontario, and by execution of this Agreement
each party hereto submits to the non-exclusive jurisdiction of such
courts and waives any objection it might have based upon improper venue
or inconvenient forum. ATG agrees not to bring any legal proceeding
against the TSE in any jurisdiction except Ontario.
15.9 Severability. If any provision of this Agreement is held to be illegal or
unenforceable, such provision shall be severed and the remainder of the
Agreement shall remain in full force and effect.
15.10 Further Assurances. Each Party shall execute such further documents and
take such further measures as are reasonably necessary to give full
effect to this Agreement. ATG agrees that the TSE System may include
components belonging to third parties, and therefore, upon request of the
TSE, ATG shall execute relevant agreements required by such third
parties.
15.11 Extended Meanings. In this Agreement words importing any gender include
all genders and words importing persons include individuals,
partnerships, associations, trusts and corporations.
15.12 Subject Headings. The subject headings of the Sections of this Agreement
are included for the purposes of convenience only, and shall not affect
the construction or interpretations of any of its provisions.
15.13 Currency. All references to currency herein are to lawful money of
Canada.
16. CONDITIONS
16.1 Conditions. The implementation of this Agreement is subject to the
receipt by the TSE of satisfactory background checks of ATG directors and
officers. In the event that such background checks are unsatisfactory,
the TSE may terminate this Agreement effective immediately.
The Parties have executed this Agreement as of the date first set forth above.
ASHTON TECHNOLOGY CANADA INC. THE TORONTO STOCK EXCHANGE INC.
By: ____________________________ By: ___________________________
Name: ____________________________ Name: ___________________________
Title: ____________________________ Title: ___________________________
By: ___________________________
Name: ___________________________
Title: ___________________________