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AMENDMENT NO. 3 TO THE JOINT SERVICES AGREEMENT
DATED AS OF DECEMBER 15, 1999, AS AMENDED,
AMONG CANTOR FITZGERALD, L.P., CANTOR FITZGERALD SECURITIES, CANTOR FITZGERALD &
CO., CFPH, L.L.C., CANTOR FITZGERALD PARTNERS, CANTOR FITZGERALD INTERNATIONAL,
CANTOR FITZGERALD EUROPE (FORMERLY CANTOR FITZGERALD GILTS), eSPEED, INC.,
eSPEED SECURITIES, INC., eSPEED GOVERNMENT SECURITIES, INC., eSPEED MARKETS,
INC. AND eSPEED SECURITIES LIMITED (FORMERLY eSPEED SECURITIES
INTERNATIONAL LIMITED)
THIS AMENDMENT No. 3, dated as of September 22, 2000, among Cantor
Fitzgerald, L.P., Cantor Fitzgerald Securities, Cantor Fitzgerald & Co., CFPH,
L.L.C., Cantor Fitzgerald Partners, Cantor Fitzgerald International, Cantor
Fitzgerald Europe (formerly Cantor Fitzgerald Gilts), eSpeed, Inc., eSpeed
Securities, Inc., eSpeed Government Securities, Inc., eSpeed Markets, Inc. and
eSpeed International Limited (formerly eSpeed Securities International Limited)
amends the Joint Services Agreement dated as of December 15, 1999 among the
parties hereto, as amended by Amendment No. 1, dated as of January 1, 2000, and
as amended by Amendment No. 2, dated as of July 1, 2000 (the "Joint Services
Agreement"). All the terms of the Joint Services Agreement are incorporated
herein by reference, except as otherwise stated herein. Capitalized terms used
herein that are not defined herein shall have the meanings ascribed to them in
the Joint Services Agreement.
W I T N E S S E T H:
WHEREAS, pursuant to the Joint Services Agreement, the eSpeed Parties
and the Cantor Parties agreed, among other things, to collaborate in providing
brokerage services to customers through the then existing Electronic
Marketplaces, and in creating and developing Electronic Marketplaces for new
Financial Products and other Products;
WHEREAS, in conjunction with certain energy industry participants, CFLP
has agreed to form TradeSpark, LP, a Delaware limited partnership
("TradeSpark"), which is intended to engage in the business of sponsoring a
real-time Electronic Energy Marketplace (as defined below) and affiliated web
portal, which may be accessed directly through fully electronic means or through
brokers via telephone, in and through which buyers and sellers of Energy
Products (as defined below) may effect transactions in those Energy Products;
WHEREAS, in connection with the formation of TradeSpark, concurrently
with the execution of this Amendment, eSpeed will enter into a Services
Agreement with TradeSpark pursuant to which eSpeed will generally provide, among
other things, the global technology infrastructure for the transaction elements
of the Electronic Energys Marketplace;
WHEREAS, in connection with the formation of TradeSpark, concurrently
with the execution of this Amendment, CFLP will enter into an Administrative
Services Agreement with TradeSpark pursuant to which CFLP will generally provide
TradeSpark with certain services, including, without limitation, office space,
personnel and corporate services, such as cash management, internal audit,
facilities management, promotional sales and marketing, legal, payroll, benefits
administration and other administrative services;
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WHEREAS, in accordance with the terms and conditions of the Joint
Services Agreement, eSpeed's and CFLP's investment in, and provision of services
to, TradeSpark are subject to the terms and conditions of the Joint Services
Agreement; and
WHEREAS, the Cantor Parties and eSpeed Parties desire to amend the
Joint Services Agreement to allow for such investment and provision of services
in accordance with Section 17(b) of the Joint Services Agreement.
NOW, THEREFORE, in consideration of the premises contained herein, and
for other good and valuable consideration, the adequacy and receipt of which are
hereby acknowledged, the parties hereto agree as follows:
1. Section 1 of the Joint Services Agreement hereby is amended to
incorporate the following Defined Terms in their appropriate alphabetical order:
"Electronic Energy Marketplace" means the marketplace and affiliated
web portal sponsored by TradeSpark on or through which North American
wholesale transactions in, and purchases and sales of, Energy Products
and derivatives thereof, including futures contracts and options on
futures contracts involving Energy Products (and related services) may
be effected in whole or in part electronically. Only transactions that
are to be executed, settled and delivered in North America shall be
effected on or through the Electronic Energy Marketplace.
"Energy Products" means natural gas, electricity, coal, sulphur dioxide
and nitrogen dioxide emissions allowances, and weather financial
products.
"North America" means the United States, Canada and Mexico.
2. The following Defined Terms in Section 1 of the Joint Services
Agreement hereby are amended and replaced in their entirety with the following:
"Ancillary IT Services" means technology support services (other than
in respect of the Electronic Energy Marketplace), including, but not
limited to, (i) systems administration, (ii) internal network support,
(iii) support and procurement for desktops of end-user equipment, (iv)
operations and disaster recovery services, (v) voice and data
communications, (vi) support and development of systems for Clearance,
Settlement and Fulfillment Services, (vii) systems support for Cantor
Party brokers, (viii) electronic applications systems and network
support and development for Unrelated Dealer Businesses and (ix)
provision and/or implementation of existing electronic applications
systems, including all improvements and upgrades thereto, and use of
the related
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intellectual property rights, having potential application
in a Gaming Business (as defined under "Unrelated Dealer Business"
below).
"Collaborative Marketplace" means an Electronic Marketplace that is
operated by a Cantor Party and an eSpeed Party in collaboration
pursuant to Section 3 of this Agreement. All Marketplaces shall be
Collaborative Marketplaces, unless otherwise determined in accordance
with this Agreement. In no event shall the Electronic Energy
Marketplace be deemed to be a Collaborative Marketplace for purposes of
this Agreement.
"Electronic Marketplace" means a Marketplace on which transactions in,
and purchases and sales of, Products may be effected in whole or in
part electronically, but does not include a Marketplace that is merely
electronically assisted, such as screen assisted open outcry. In no
event shall the Electronic Energy Marketplace be deemed to be an
Electronic Marketplace for purposes of this Agreement.
"Financial Product" means any financial asset or financial instrument,
any intangible commodity or any tangible fungible commodity, including,
but not limited to, any security, futures contract, foreign exchange
transaction, swap transaction, credit derivative, repurchase or reverse
repurchase obligation, currency or swap (as currently defined in the
Federal Bankruptcy Code of 1978) or any option or derivative on any of
the foregoing; provided that in no event shall any Energy Product
traded on the Electronic Energy Marketplace or any derivative thereof,
including futures contracts and options on futures contracts involving
Energy Products traded on the Electronic Energy Marketplace, be
considered a Financial Product.
"Marketplace" means a marketplace operated or to be operated by the
Cantor Parties and/or the eSpeed Parties in and through which buyers
and sellers of a Product may effect transactions in the Product. In no
event shall the Electronic Energy Marketplace be deemed to be a
Marketplace for purposes of this Agreement.
"Product" means any tangible or intangible asset or good other than an
Energy Product traded on the Electronic Energy Marketplace or any
derivative thereof, including futures contracts and options on futures
contracts involving Energy Products traded on the Electronic Energy
Marketplace.
3. Section 7(f) of the Joint Services Agreement hereby is amended and
replaced in its entirety with the following:
No eSpeed Party shall, directly, indirectly or in connection
with a third Person, engage in any activities competitive with
a business activity now or hereafter conducted by a Cantor
Party or provide or assist any other Person in providing any
Cantor Service, other than (i) in collaboration with a Cantor
Party pursuant to Section 3 of this Agreement, (ii) with
respect to a new Marketplace involving a
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Financial Product, after CFLP (x) has indicated that it is
unable or unwilling to provide such Cantor Service or (y)
fails to indicate to the eSpeed Party within the prescribed
30-day period that it does wish to provide such Cantor Service
with respect to that Marketplace in accordance with paragraph
(d) of this Section 7, (iii) with respect to a new Marketplace
involving a Product that is not a Financial Product or an
Energy Product traded on the Electronic Energy Marketplace in
accordance with paragraph (c) or paragraph (e) of this Section
7, (iv) with respect to an Unrelated Dealer Business, other
than a Gaming Business, in which an eSpeed Party develops and
operates a fully electronic Marketplace or (v) with respect to
the Electronic Energy Marketplace.
4. Section 7(g) of the Joint Services Agreement hereby is amended and
replaced in its entirety with the following:
No Cantor Party shall, directly, indirectly or in connection
with a third Person, provide or assist any other Person in
providing Electronic Brokerage Services, other than (i) in
collaboration with eSpeed pursuant to Section 3 of this
Agreement, (ii) with respect to a new Marketplace, after
eSpeed (x) has indicated that it is unable to develop and put
into operation an Electronic Trading System with respect to
that new Marketplace in accordance with paragraph (a) of this
Section 7 or (y) has declined to exercise its right of first
refusal or is unable to develop and put into operation an
Electronic Trading System with respect to that new Marketplace
in accordance with paragraph (b) of this Section 7, including,
without limitation, the time period specified therein, (iii)
with respect to an Unrelated Dealer Business or (iv) with
respect to the Electronic Energy Marketplace.
5. Section 7(i) of the Joint Services Agreement hereby is amended and
replaced in its entirety with the following:
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The Cantor Parties and the eSpeed Parties shall be entitled to
and may enter into strategic alliances, joint ventures,
partnerships or similar arrangements with Persons and
consummate Business Combinations with Persons (all of the
foregoing, collectively, "Alliance Opportunities") on the
following basis only. If an Alliance Opportunity (i) relates
to a Person that directly or indirectly provides Cantor
Services and engages in business operations that do not
involve Electronic Brokerage Services, then any Cantor Party
shall be entitled to consummate a transaction with respect to
such an Alliance Opportunity, (ii) relates to a Person that
directly or indirectly provides Electronic Brokerage Services
and engages in business operation that do not involve any
Cantor Service, then any eSpeed Party shall be entitled to
consummate a transaction with respect to such an Alliance
Opportunity and (iii) is an Alliance Opportunity with respect
to a Person other than those described in clauses (i) and (ii)
above, then the Cantor Parties and the eSpeed Parties shall
cooperate to jointly pursue and consummate a transaction with
respect to such Alliance Opportunity on mutually agreeable
terms, provided, however that any Alliance Opportunity with
TradeSpark with respect to the Electronic Energy Marketplace
shall not be considered an Alliance Opportunity and any such
Alliance Opportunity with TradeSpark with respect to the
Electronic Energy Marketplace shall be specifically permitted
in accordance with the terms and conditions agreed to by any
eSpeed Party or any Cantor Party. For purposes of this
paragraph, a "Business Combination" shall mean, with respect
to any Person (other than TradeSpark with respect to the
Electronic Energy Marketplace), a transaction initiated by
and/or in which a Cantor Party or an eSpeed Party is the
acquiror involving (i) a merger, consolidation, amalgamation
or combination, (ii) any sale, dividend, split or other
disposition of any capital stock or other equity interests (or
securities convertible into or exchangeable for or options or
warrants to purchase any capital stock or other equity
equivalents) of the Person, (iii) any tender offer (including
without limitation a self-tender), exchange offer,
recapitalization, liquidation, dissolution or similar
transaction, (iv) any sale, dividend or other disposition of a
significant portion of the assets and properties of the Person
(even if less than all or substantially all of such assets or
properties), and (v) entering into of any agreement or
understanding, or the granting of any rights or options, with
respect to any of the foregoing.
6. Notwithstanding anything else contained herein or in the Joint
Services Agreement to the contrary, in no event shall eSpeed's or CFLP's direct
or indirect relationship with TradeSpark with respect to the Electronic Energy
Marketplace be deemed to be a violation of the Joint Services Agreement.
7. Except as expressly set forth herein, the Joint Services Agreement
shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their duly authorized representatives, effective as of the day and
year first written above.
CANTOR FITZGERALD, L.P.
By: CF Group Management, Inc.,
its Managing General Partner
By: /s/ Howard W. Lutnick
----------------------
Name: Howard W. Lutnick
Title: President
CANTOR FITZGERALD SECURITIES
By: Cantor Fitzgerald, L.P.,
its Managing General Partner
By: CF Group Management, Inc.,
its Managing General Partner
By: /s/ Howard W. Lutnick
----------------------
Name: Howard W. Lutnick
Title: President
CANTOR FITZGERALD & CO.
By: Cantor Fitzgerald Securities,
its Managing General Partner
By: Cantor Fitzgerald, L.P.,
its Managing General Partner
By: CF Group Management, Inc.,
its Managing General Partner
By: /s/ Howard W. Lutnick
----------------------
Name: Howard W. Lutnick
Title: President
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CFPH, L.L.C.
By: /s/ Howard W. Lutnick
-----------------------
Name: Howard W. Lutnick
Title: President
CANTOR FITZGERALD PARTNERS
By: Cantor Fitzgerald Securities,
its Managing General Partner
By: Cantor Fitzgerald, L.P.,
its Managing General Partner
By: CF Group Management, Inc.,
its Managing General Partner
By: /s/ Howard W. Lutnick
----------------------
Name: Howard W. Lutnick
Title: President
CANTOR FITZGERALD INTERNATIONAL
By: /s/ Howard W. Lutnick
-----------------------
Name: Howard W. Lutnick
Title: President
CANTOR FITZGERALD EUROPE
By: /s/ Howard W. Lutnick
-----------------------
Name: Howard W. Lutnick
Title: President:
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eSPEED, INC.
By: /s/ Frederick T. Varacchi
----------------------------------------
Name: Frederick T. Varacchi
Title: President
eSPEED SECURITIES, INC.
By: /s/ Frederick T. Varacchi
----------------------------------------
Name: Frederick T. Varacchi
Title: President
eSPEED GOVERNMENT SECURITIES, INC.
By: /s/ Frederick T. Varacchi
----------------------------------------
Name: Frederick T. Varacchi
Title: President
eSPEED MARKETS, INC.
By: /s/ Frederick T. Varacchi
----------------------------------------
Name: Frederick T. Varacchi
Title: President
eSPEED INTERNATIONAL LIMITED
By: /s/ Frederick T. Varacchi
----------------------------------------
Name: Frederick T. Varacchi
Title: President
