Exhibit 10.30
CyBerBroker & Wall Street Strategies Corp.
Order Flow Agreement
THIS AGREEMENT (the "Agreement"), dated this 28th day of April 2000, is entered
into by and between CyBerBroker, Inc., a Texas Corporation ("CyBerBroker"), with
its principal place of business located at 115 Wild Basin Rd., Austin, Texas,
78746 and Wall Street Strategies Corp., a Nevada Corporation ("Referrer"), with
its principal place of business located at 130 William Street, Suite 401, New
York, NY 10038 (collectively, the "Parties").
RECITALS
WHEREAS, Referrer desires to refer Prospective Customers (as herein
defined) to CyBerBroker for the purpose of evaluation and qualification by
CyBerBroker with the intent of CyBerBroker accepting them as Referred Customers
(as herein defined);
WHEREAS, CyBerBroker desires Referrer to refer Prospective Customers to
CyBerBroker;
NOW THEREFORE, in consideration of the mutual promises contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged by the Parties, the Parties agree as follows:
AGREEMENT
1. Definitions. For the purposes of this Agreement;
a. "Clearing Month" shall mean the period commencing [***] business
days before the [***] business day of any calendar month, and [***] on the [***]
business day before the [***] business day of the next calendar month.
b. "Order" shall mean any request to buy or sell securities made by a
Referred Customer for said Referred Customer's own account, which is determined
to be a bona fide order and forwarded to the appropriate exchange for execution
and shall specifically not include the separation or splitting of any larger
order for direction to different market participants.
c. "Prospective Customer" shall mean prospective online customers of
CyBerBroker referred to CyBerBroker by Referrer.
d. "Referred Customer" shall mean a Prospective Customer that, in
CyBerBroker's sole judgment, has satisfied its prevailing account
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pre-qualification requirements as those requirements may be modified or amended
by CyBerBroker from time-to-time.
2. Order Flow Fee. In consideration for Referrer referring Referred Customers to
CyBerBroker, CyBerBroker shall pay to Referrer [***] per Order placed by
Referred Customer through CyBerBroker in each Clearing Month ("Order Flow Fee").
The Order Flow Fee shall [***]. The parties further agree that these fees shall
not constitute the payment or splitting of any commission, concession, or other
sales-related compensation by CyBerBroker to Referrer, nor shall Referrer assert
any claim to the commission, concessions or other sales-related compensation
paid by customers or third parties to the broker-dealer. At no time shall
Referrer make any recommendations or otherwise provide advice or assistance to
any customer beyond transmitting orders placed by Referrer's subscribers.
Further, at no time shall Referrer solicit orders for securities, facilitate the
solicitation of orders for securities, give advice or promulgate analyses or
reports on the value of securities and/or the advisability of investing in
securities. CyBerBroker represents that the Order Flow Payment and terms offered
to Referrer are and will continue to be at least as beneficial to Referrer as
offered or paid to any other party. If CyBerBroker offers additional payments,
incentives, or other special terms to other parties, Referrer shall be entitled
to participate in and receive notice of the same no later than CyBerBroker's
other customers.
3. Payment. CyBerBroker shall pay Referrer by check to the Referrer's address
listed in this Agreement, within [***] of any Clearing Month, or within [***]
after receipt of the applicable monthly clearing report from CyBerBroker's
clearing firm, [***]. Each Order Flow Fee payment shall be accompanied by a
commercially reasonable report detailing orders placed by Referred Customers
within the applicable period. CyBerBroker shall pay Referrer Order Flow Fees
from Referred Customers so long as Referred Customer remains a customer of
CyBerBroker, or until [***] as set forth below, whichever occurs first. The
payments of Order Flow Fees will cease to accrue at the date when a Referred
Customer ceases to be a customer of CyBerBroker [***].
4. Non-Solicitation. Prospective Customers becoming Referred Customers of
CyBerBroker under this Agreement shall solely be the customers of CyBerBroker
for securities brokerage purposes. Referrer shall not knowingly, either solely
or in concert with other parties, market to said Referred Customers for the
purpose of inducing them to terminate their brokerage relationship with
CyBerBroker. This provision shall survive the termination of the Agreement for
one calendar year from the date of termination.
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5. Term; Termination. The term of this Agreement shall commence upon the date
first set forth above for a period of 12 months, renewable by written agreement
of the Parties. Notwithstanding, either party may terminate the Agreement for
material breach of the provisions hereof by the other party upon 30 days'
written notice and either party may terminate the Agreement without cause of the
provisions hereof upon 60 days' written notice.
6. Confidentiality. Each party will regard and preserve as confidential all
information related to the business of the other, its parent company and its
subsidiaries and affiliated companies and its or their clients that may be
obtained from any source as a result of this Agreement. Neither party will,
without first obtaining the other's prior written consent, disclose to any
person, firm or enterprise, or use for its benefit, any such information
including information relating to the pricing, methods, processes, financial
data, lists, apparatus, statistics, programs, research, developments or related
information of the disclosing party, its parent company and its subsidiaries,
affiliated companies or its or their clients concerning past, present or future
business activities of said entities. The aforesaid shall not include
information that (i) becomes generally available to the public other than as a
result of disclosure by the recipient or anyone to whom it transmits the
information, (ii) was available to the recipient on a non-confidential basis
prior to the disclosure to it by the disclosing party, (iii) becomes available
to the recipient on a non-confidential basis from a source other than the
disclosing party who is not bound by a confidentiality agreement with the
disclosing party, (iv) was known to the recipient or in its possession prior to
the date of disclosure by the disclosing party, (v) is independently developed
by the recipient without reference to the confidential information provided by
the other party, or (vi) if required to be disclosed by legal process or law,
provided that the receiving party will give written notice to the disclosing
party immediately upon learning of such requirement so that the disclosing party
may seek a protective order or other appropriate remedy or may waive compliance
with the terms of this Agreement. For purposes of this provision, the existence
of this Agreement and terms thereof are not confidential information.
7. Notices. All notices, requests, demands or other communications which are
required or may be given pursuant to the terms of this Agreement shall be in
writing to the following addresses and shall be deemed to have been duly given
(i) on the date of delivery if delivered by hand or by confirmed facsimile; (ii)
upon the seventh (7th) day after such notice is deposited in the United States
mail, if mailed by registered or certified mail, postage prepaid, return receipt
requested, or (iii) upon the date of the courier's verification of delivery at
the specified address if sent by a nationally recognized overnight express
courier.
If to Referrer:
Wall Street Strategies Corp.
130 William Street, Ste 401
New York, NY 10038
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With a Copy to:
--------------------------
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Attention:
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If to CyBerBroker:
CyBerBroker, Inc.
115 Wild Basin Rd, Suite 300
Austin, Texas 78746
Attention: Mark Stryker
With a Copy to:
Jenkens & Gilchrist, P.C.
600 N. Congress Avenue, Suite 2200
Austin, Texas 78701
Attention: Kathryn Lindauer
8. Indemnity. Each party (the "Indemnitor") agrees to indemnify, defend and hold
harmless the other, its officers, directors, employees, agents, and affiliates
(the "Indemnitee") from and against all expenses, costs, damages, direct,
consequential, and/or incidental in nature (including reasonable legal fees and
expenses), as well as any claims, demands, proceedings, suits and actions, and
all liabilities resulting from, in connection with, or arising out of the
Indemnitor's breach of any term of this Agreement; provided that (a) the
Indemnitor is promptly notified in writing of such claim or suit, (b) the
Indemnitor shall have the sole control of the defense and/or settlement thereof,
(c) the Indemnitee furnishes to the Indemnitor, on request, information
available to the Indemnitee for such defense, and (d) the Indemnitee cooperates
in any defense and/or settlement thereof, so long as the Indemnitor pays all of
the Indemnitee's reasonable out-of-pocket expenses and attorneys' fees. The
Indemnitee shall not admit any such claim without prior consent of the
Indemnitor.
9. Limitations of Liability and Exclusions of Damage. NEITHER PARTY SHALL, UNDER
ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL,
INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR DAMAGES BASED ON LOST
PROFITS, BUSINESS OPPORTUNITIES OR GOODWILL, EVEN IF SUCH PARTY HAS BEEN
APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING, EXCEPT WITH RESPECT TO
LIABILITY WHICH IS BY LAW INCAPABLE OF EXCLUSION. IN THE EVENT OF AN UNCURED
MATERIAL BREACH BY EITHER PARTY, THE OTHER PARTY'S LIABILITY (WHETHER BASED ON
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AN ACTION OR CLAIM IN CONTRACT, TORT OR OTHERWISE) TO THE CLAIMING PARTY WILL BE
LIMITED TO THE LESSER OF THE AMOUNT ACTUALLY PAID HEREUNDER BY THE CLAIMING
PARTY OR $500,000.
10. Governing Law. This Agreement shall be governed by the laws of the State of
Texas, excluding choice of law and conflicts of law principles which direct the
application of the laws of a different state.
11. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. For purposes hereof, a facsimile copy of
this Agreement, including the signature pages hereto, shall be deemed to be an
original.
12. Waiver. No waiver of any of the terms of this Agreement will be effective
unless set forth in writing signed by the party against whom it is sought to be
enforced. No waiver of any provision of this Agreement shall constitute a waiver
of any of further breach of that provision or of any other provision of this
Agreement.
13. Severability. If any provision of this Agreement is held by final judgment
of a court of competent jurisdiction to be invalid, illegal or unenforceable,
such invalid, illegal or unenforceable provision shall be severed from the
remainder of this Agreement, and the remainder of this Agreement shall be
enforced. In addition, the invalid, illegal or unenforceable provision shall be
deemed to be automatically modified, and, as so modified, to be included in this
Agreement, such modification being made to the minimum extent necessary to
render the provision valid, legal and enforceable. Notwithstanding the
foregoing, however, if the severed or modified provision concerns all or a
portion of the essential consideration to be delivered under this Agreement by
one party to the other, the remaining provisions of this Agreement shall also be
modified to the extent necessary to equitably adjust the parties' respective
rights and obligations hereunder.
14. Headings. The headings and titles to the Sections of this Agreement are
inserted for convenience only and shall not be deemed a part hereof or affect
the construction or interpretation of any provision hereof.
15. Complete Agreement. This Agreement contains all the agreements,
understandings, representations, conditions, warranties and covenants, and
constitutes the sole and entire Agreement between the parties hereto pertaining
to the subject matter hereof and supersedes all prior communications or
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agreements, written or oral. This Agreement may not be modified except by
written instrument signed by each party.
IN WITNESS WHEREOF, the Parties have caused their duly authorized
representatives to execute the Agreement to be effective as of the date first
set forth above.
CyBerBroker, Inc. Wall Street Strategies
/S/ Mark K. Stryker /S/ Shawn D. Baldwin
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By: Mark K. Stryker By: Shawn D. Baldwin
Title: CEO Title: COO
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