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EXHIBIT 10.4
OPTIONS PRICE REPORTING AUTHORITY
VENDOR AGREEMENT
(LAST SALE AND QUOTATION INFORMATION)
THIS AGREEMENT is made this 12th day of AUGUST, 1997, between
FIRST INTERNATIONAL FINANCIAL CORPORATION an ALBERTA corporation ("Vendor"), and
the American Stock Exchange, Inc., Chicago Board Options Exchange, Incorporated,
New York Stock Exchange, Inc., Pacific Stock Exchange Incorporated and
Philadelphia Stock Exchange, Inc. (said exchanges are hereinafter sometimes
collectively referred to as the Options Price Reporting Authority ("OPRA"), a
registered securities information processor registered pursuant to Section
11A(b) of the Securities Exchange Act of 1934, as amended).
RECITALS
A. The aforesaid exchanges have been authorized by the
Securities and Exchange Commission pursuant to Section 11A(a)(3)(B) of the
Securities Exchange Act of 1934, as amended, to act jointly as parties to the
Plan for Reporting of Consolidated Options Last Sale Reports and Quotation
Information (said plan as amended from time to time in accordance with the
provisions thereof is hereinafter referred to as the "Plan"), and the Plan
provides that any other national securities exchange or association approved by
the Securities and Exchange Commission for the trading of options may become a
party to the Plan (all such parties are hereinafter sometimes collectively
referred to as the "Participants" and individually as a "Participant");
B. The Plan provides that the consolidated options information
reporting system described therein is administered by the Participants through a
committee designated as OPRA, and all references in this Agreement to OPRA shall
mean the Participants acting pursuant to the Plan;
C. The Plan further provides that all options last sale
reports, quotation information and related information collected by the
Participants shall be furnished to a central processor selected by OPRA
("Processor") for consolidation and dissemination to vendors and other
authorized persons;
D. Vendor is engaged in the business of publishing,
disseminating or otherwise distributing securities market information, and is
desirous of including in such information consolidated options last sale
reports, quotation information and related information.
A G R E E M E N T S
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
meanings set forth after each:
(a) "Last Sale Reports" means any price, volume or related
information reflecting completed transactions in Eligible Securities (as defined
below).
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(b) "Quotation Information" means bids and offers or related
information pertaining to quotations in Eligible Securities (as defined below).
(c) "Options Information" means Last Sale Reports and
Quotation Information and any other information transmitted over the information
reporting system administered by OPRA.
(d) "Current" means, in the case of Last Sale Reports, such
information that has been transmitted by the Processor, by a Participant or by
OPRA to Vendor within the immediately preceding 15 minutes, and in the case of
Quotation Information, the bid or offer in respect of a given security that was
most recently transmitted by the Processor, by a Participant or by OPRA to
Vendor.
(e) "Eligible Securities" means each series of option
contracts listed and traded on one or more of the Participant exchanges, and any
other securities determined by OPRA to be eligible for inclusion in the
information reporting system administered by OPRA.
(f) "Last Sale Subscriber" means a person that has executed a
Nonprofessional Subscriber agreement or a Professional Subscriber agreement with
OPRA setting forth the terms and conditions under which such person is permitted
to receive Last Sale Reports for its own use and not for the purpose of
retransmitting or redistributing Last Sale Reports to any other person, and that
has been approved by OPRA for such purpose.
(g) "Quotation Subscriber" means a person that has executed a
Nonprofessional Subscriber agreement or a Professional Subscriber agreement with
OPRA setting forth the terms and conditions under which such person is permitted
to receive Quotation Information for its own use and not for the purpose of
retransmitting or redistributing Quotation Information to any other person, and
that has been approved by OPRA for such purpose.
(h) "Nonprofessional Subscriber" means an individual natural
person (not a firm, corporation, partnership, trust or association) who has
completed a Nonprofessional Subscriber Application and Agreement in the form of
Attachment C hereto, or as said Application and Agreement may be amended from
time to time by OPRA, evidencing that such person intends to receive Options
Information for his or her private use only in connection with personal
investment activities and not in connection with any trade or business
activities, and making the other representations and agreements required by said
Application and Agreement.
(i) "Professional Subscriber" means a Last Sale Subscriber or
a Quotation Subscriber who is not a Nonprofessional Subscriber.
(j) "Person" means a firm, corporation, or an association, as
well as an individual.
(k) "Affiliate" means when used in reference to a Participant,
each governor, director, officer, employee or subsidiary of such Participant and
each director, officer or employee of each such subsidiary.
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(l) "Print News Publisher" means the publisher of a bona fide
newspaper, newsmagazine or other news publication of general circulation
published on a regular schedule solely in print form and not distributed
electronically, by fax or by radio or television broadcast.
2. FURNISHING OPTIONS INFORMATION TO VENDOR.
Options Information (in the format conforming to the
specifications set forth in Attachment A hereto, as the same may be amended from
time to time, subject to the provisions of Section 13 hereof) may be furnished
to Vendor directly from the Processor or from another vendor for the purpose of
enabling Vendor to distribute or publish Options Information in accordance with
the terms hereof. If Vendor desires to access Options information directly from
the Processor, Vendor must provide telecommunications facilities to the
Processor. Vendor shall pay to OPRA, if applicable, any one or more of the
following fees in accordance with the Fee Schedule set forth in Attachment B
hereto: (i) the Redistribution Fee, (ii) the Direct Access Charge, (iii) the
Nonprofessional Subscriber fee referred to in Section 6 hereof, and (iv) such
other fees and charges as OPRA may from time to time impose, all as the same may
be amended from time to time, subject in each case to not less than 30 days
prior written notice to Vendor. Payment of the Redistribution Fee shall permit
Vendor to redistribute Options Information in accordance with the terms of
Section 3, below. Payment of the Direct Access Charge shall entitle Vendor to
two circuit connections at the premises of the Processor in New York City.
Additional circuit connections will be made available upon payment of a nominal
fee, as reflected in the Fee Schedule, which will approximate OPRA's cost in
respect of such additional connections. The Direct Access Charge established by
OPRA for direct access to Options Information is a uniform charge levied against
each person who receives Options Information directly from the Processor. The
revenues derived from the Direct Access charge are not intended by OPRA to
exceed OPRA's operating expenses associated with providing Options Information
in the form of one or more consolidated high speed transmissions. This charge
may be increased or decreased, depending upon the number of vendors or other
persons who are required to pay it, or changes in OPRA's costs associated with
the furnishing of Options Information. OPRA intends to review the Direct Access
Charge at least annually, and may increase or decrease this charge from time to
time on not less than 30 days prior written notice to Vendor. In the event
Vendor intends to utilize Options Information other than in its capacity as a
vendor as authorized under this Agreement, Vendor must complete the appropriate
agreements governing such other use, and pay any additional applicable fees.
3. AUTHORITY OF VENDOR TO UTILIZE OPTIONS INFORMATION.
Subject to the terms of this Agreement and applicable rules
and regulations of the Securities and Exchange Commission, Vendor may retransmit
or redistribute Options Information on a selective or continuous basis, and may
furnish a market data or retrieval service or services with respect to Options
Information whereby Professional and Nonprofessional Subscribers, authorized
vendors, and other authorized persons may receive access to Options Information
through interrogation or display devices and over circuits provided by Vendor,
provided that in retransmitting or redistributing such information or in making
such information available through a market data or retrieval service, Vendor
shall not exclude information or otherwise discriminate on the basis of the
market in which a transaction took place or in which a quotation was entered,
and provided further that Vendor shall furnish Last Sale Reports on a
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current basis only to persons that are at the time of receipt thereof duly
approved Last Sale Subscribers, and Vendor shall furnish Quotation Information
on a current basis only to persons that are at the time of receipt thereof duly
approved Quotation Subscribers, or in either case to approved vendors, back-up
facility providers, control service providers, or other authorized persons for
their use in accordance with agreements such persons have entered into with
OPRA.
Vendor may furnish Options Information on a current basis via
a (data feed) transmission only to (i) Subscribers who have entered into a
Professional Subscriber Agreement and an Indirect (Vendor Pass-Through) Circuit
Connection Rider, (ii) other vendors, (iii) Print News Publishers, subject to
the conditions stated below, or (iv) other categories of persons authorized by
OPRA to receive a data feed transmission.
Vendor may furnish Options Information to a person who intends
to retransmit all or a portion of the information to other persons only if such
person has entered into a Vendor Agreement with OPRA, except that Vendor may
furnish Options Information to a Print News Publisher to the extent and subject
to the conditions set forth in the following paragraph of this Section 3, and
except that Vendor may furnish historical Last Sale Reports and Quotation
Information to any person. For purposes of the previous sentence, Last Sale
Reports that reflect transactions completed during a given trading session of an
options market, and bids and offers entered in a given trading session of an
options market, become "historical" upon the opening of trading in the next
succeeding trading session of that same market. (E.g., reports of transactions
completed in a trading session on Wednesday become historical reports from and
after the opening of trading on the following Thursday.)
Vendor may also furnish Options Information to a Print News
Publisher in the form of formatted options tables or by means of a data feed
transmission or in any other format, provided that the redistribution of such
information by the Print News Publisher is limited to options tables appearing
in a bona fide newspaper, newsmagazine or other news publication of general
circulation published on a regular schedule in print form, and provided further
that Vendor shall have entered into a written agreement with the Print News
Publisher, expressly for the benefit of OPRA, in which the Print News Publisher
agrees that its redistribution of Options Information will be so limited and
acknowledges that neither OPRA, the Processor nor any Participant guarantees the
timeliness, sequence, accuracy or completeness of any Options Information, and
that neither OPRA, the Processor nor any Participant shall be liable in any way
to Print News Publisher for any claims or damages, consequential or otherwise,
for any delays, inaccuracies, errors in, or omissions of, any Options
Information, or in the transmission or delivery thereof or for any damage
arising therefrom or occasioned thereby. Vendor shall provide to OPRA, in
advance, a copy of every form of agreement it intends to use for this purpose.
4. APPROVAL OF PROFESSIONAL SUBSCRIBERS.
OPRA shall, from time to time, furnish to Vendor the names of
those persons that have been approved by OPRA as Last Sale Professional
Subscribers or Quotation Professional Subscribers or both (separately
identifying those Subscribers who have entered into Indirect (Vendor
Pass-Through) Circuit Connection Riders), and the names of those persons that
have entered into Vendor Agreements with OPRA, or are otherwise approved to
receive Options
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Information. Upon receipt by Vendor of written notice from OPRA that the
approval of any person to receive Options Information has been withdrawn, Vendor
will promptly discontinue furnishing Last Sale Reports or Quotation Information,
or both, to such person, except to the extent such person is approved to receive
such information as a Nonprofessional Subscriber, and except to the extent that
such information is historical information as defined in Section 3 above.
5. APPROVAL OF NONPROFESSIONAL SUBSCRIBERS.
(a) Vendor shall furnish to each of its customers who desires
to be approved as a Nonprofessional Subscriber a Nonprofessional Subscriber
Application and Agreement in the form of Attachment C hereto or as such form may
be amended by OPRA from time to time, and shall require the customer and to
return the completed Application and Agreement to Vendor. Vendor, on behalf of
and as agent for OPRA, shall review each Application and Agreement, and upon
Vendor's determination that the Application and Agreement is complete in all
material respects and that the applicant in fact meets the qualifications of a
Nonprofessional Subscriber, Vendor shall approve the applicant by endorsing the
completed Application and Agreement.
(b) A Nonprofessional Subscriber whose Application and
Agreement has been approved in accordance with the foregoing shall remain a duly
approved Nonprofessional Subscriber only so long as he remains in compliance
with the provisions of the Application and Agreement, subject to the right of
Vendor or OPRA to withdraw such approval or to terminate the Application and
Agreement, as stated therein.
(c) In the event Vendor or OPRA determines that a previously
approved Nonprofessional Subscriber does not meet the requirements for such
approval (in the case of such determination by OPRA, OPRA shall furnish Vendor
notification thereof), Vendor will promptly discontinue furnishing current Last
Sale Reports or current Quotation Information, or both, to such person, except
to the extent such person is approved to receive such information as a
Professional Subscriber.
6. NONPROFESSIONAL SUBSCRIBER FEES, ACCOUNTS, RECORDS AND REPORTS.
(a) For each Nonprofessional Subscriber whom it has approved
and to whom it furnishes current Last Sale Reports or Quotation Information,
Vendor shall pay to OPRA a monthly Nonprofessional Subscriber fee in accordance
with the Fee Schedule set forth in Attachment B hereto, as the same may be
amended from time to time. Such fee shall be due and payable to OPRA on the day
on which Vendor initially furnishes Options Information to a new Nonprofessional
Subscriber, and thereafter the fee shall be due and payable for each month, in
advance, on the first day of the month. If Vendor initiates service to a new
Nonprofessional Subscriber following the 15th day of any month, or if Vendor
discontinues service to a Nonprofessional Subscriber on or before the 15th day
of any month, that month's fee for the service so initiated or discontinued
shall be 50% of the regular applicable monthly fee. If any amount due from
Vendor to OPRA under this subsection 6(a) has not been paid by the 30th day
after such amount is due, OPRA may impose a late payment charge for each day
from and after the due date that the amount remains unpaid. The late payment
charge shall be at an annual rate that does not exceed the lesser of (i) the
commercial prime rate of interest as last published in The Wall Street Journal
prior to the date such charge is computed plus three percent, or (ii) the
maximum rate of interest permitted by applicable law.
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(b) For each approved Nonprofessional Subscriber to whom it
furnishes Options Information, Vendor shall retain a signed original of the
completed Application and Agreement and any supplements or amendments thereto.
Vendor shall promptly send such notices to its Nonprofessional Subscribers and
shall obtain such additional information from its Nonprofessional Subscribers as
OPRA may from time to time request. All of Vendor's records pertaining to
Nonprofessional Subscribers and to the computation of the Nonprofessional
Subscriber fee due from Vendor to OPRA, including the required copies of
completed Applications and Agreements, shall be maintained in a reasonably
accessible place during the time that Vendor furnishes Options Information to
such persons, and shall be preserved for at least six years after the date
Vendor discontinues furnishing Options Information to such persons. Such records
shall be available for inspection by duly authorized representatives of OPRA
upon reasonable notice during ordinary business hours.
(c) Vendor shall deliver to OPRA not less than 30 days after
the end of each fiscal year, and at such other time or times as OPRA may request
(but not more frequently than quarterly) a report, as of the last day in the
most recently completed calendar quarter, setting forth the name, residence
address and the billing address of each Nonprofessional Subscriber, any
different address to which Options Information is furnished, the number and
types of devices through which the Nonprofessional Subscriber receives Options
Information, and the calculation of the Nonprofessional Subscriber fees due from
Vendor to OPRA since the period covered by the most recent prior report
furnished to OPRA hereunder. Vendor shall also furnish OPRA with such additional
information concerning its furnishing of Options Information to Nonprofessional
Subscribers as OPRA may reasonably request. At the request of Vendor, such
information shall be kept confidential by OPRA.
(d) The report furnished pursuant to subsection (c) above with
respect to the end of Vendor's fiscal year shall be audited, at Vendor's
expense, by Vendor's regular independent public accountant. The auditor's report
shall be furnished to OPRA within 90 days after the end of Vendor's fiscal year.
(e) In the event OPRA, in its sole discretion, determines that
a person has been improperly approved by Vendor as a Nonprofessional Subscriber,
upon written notice of such determination to Vendor, within 20 days of receipt
of such notice, Vendor shall pay to OPRA the difference between (i) the amount
that would have been billed to that person at the rates applicable to
Professional Subscribers since the date of his approval as a Nonprofessional
Subscriber and (ii) the Nonprofessional Subscriber fees actually paid by Vendor
with respect to that person; provided, however, that if Vendor demonstrates to
OPRA's reasonable satisfaction that the improper approval of the Subscriber in
question was the result of a good faith error of Vendor, the maximum amount that
Vendor shall be required to pay to OPRA under this subsection with respect to
any single Subscriber shall be the applicable Professional Subscriber fees for a
period of twelve months.
7. TRANSACTIONS EFFECTED ON OTHER EXCHANGES.
To the extent that rules and regulations of the SEC require
the reporting of transactions or quotations involving option contracts having
the same terms as Eligible Securities effected in markets other than the
Participants', and to the extent that information pertaining to
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such transactions is furnished to Vendor by OPRA, Vendor agrees that it will
include such information as a part of its service provided to Last Sale
Subscribers or Quotation Subscribers, unless the SEC shall have granted Vendor
an exemption from this requirement.
8. DEFENSE OF SUITS - INDEMNIFICATION.
(a) If Vendor shall refuse to furnish Last Sale Reports or
Quotation Information to any person who is not a Last Sale Subscriber or
Quotation Subscriber or shall refuse to continue furnishing Last Sale Reports or
Quotation Information to any person who has been terminated as a Last Sale
Subscriber or Quotation Subscriber, solely by reason of having received written
notice from OPRA that the approval of such person as a Subscriber has been
denied or revoked, the Participants shall indemnify, hold harmless and defend
Vendor from and against any and all suits or proceedings at law or in equity
based on such refusal and any and all liability, loss or damages, including
reasonable attorneys' fees, which Vendor shall incur as a result of such suit or
proceeding, provided, however, that Vendor shall promptly notify OPRA in writing
of any such suit or proceeding and the Participants shall have the sole control
of the defense of any such suit or proceeding and all negotiations for the
settlement or compromise thereof, but only insofar as such settlement or
compromise does not impose any liability on Vendor. The obligation of a
Participant to indemnify Vendor pursuant to this or the following paragraph
shall survive the termination of this Agreement as to such Participant, but only
to the extent of any liability arising out of action by OPRA terminating,
revoking or denying the approval of any person as a Last Sale Subscriber or
Quotation Subscriber occurring prior to the effective date of termination of
this Agreement as to such Participant.
(b) In the event any suit or legal proceeding is brought to
enjoin Vendor from refusing to furnish Last Sale Reports or Quotation
Information to any person because the approval of such person as a Last Sale
Subscriber or Quotation Subscriber has been denied or revoked by OPRA, Vendor
shall at once inform OPRA of such suit or proceeding. Upon the receipt of any
such notice by OPRA, the Participants shall have the right to intervene in such
suit in the name of Vendor, and/or through counsel of their choice to assume the
defense of the action on behalf of Vendor, and the Participants shall indemnify
and hold Vendor harmless from and against any and all loss, liability and
expense out of or resulting from such suit.
(c) In case any one or more of the Participants institutes any
suit or proceeding to enjoin any person not entitled to receive Options
Information from obtaining or using the same, Vendor will, in all reasonable
respects, cooperate with and assist such Participants in such suit or
proceeding, provided Vendor is reimbursed for its actual expenses in connection
therewith.
9. PROTECTION OF OPTIONS INFORMATION.
Vendor agrees to use its best efforts to prevent unauthorized
persons from obtaining Options Information through its equipment or facilities.
In the event OPRA or Vendor has reason to believe any Options Information is so
being obtained by unauthorized persons, Vendor agrees to use its best efforts to
ascertain the source from which, and the manner in which, the same is being
obtained and to promptly inform OPRA fully with respect thereto. Upon reasonable
notice to Vendor, an authorized representative of OPRA shall be permitted to
inspect Vendor's equipment and facilities used in connection with the
dissemination or
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retransmission of Options Information; provided, however, that this right of
inspection shall extend only so far as may be necessary to insure compliance by
Vendor with the provisions of this Agreement and shall not require Vendor to
divulge any confidential or proprietary information concerning its equipment or
facilities.
10. NO WARRANTY AS TO OPTIONS INFORMATION.
OPRA, the Processor or any Participant does not guarantee the
timeliness, sequence, accuracy or completeness of any Options Information, and
OPRA, the Processor or any Participant shall not be liable in any way to Vendor
or to any Subscriber or to any other person whatsoever for any claims or
damages, consequential or otherwise, which may arise out of any obligation of
OPRA, the Processor or such Participant under this Agreement, or for any delays,
inaccuracies, errors in, or omissions of, any Options Information, or in the
transmission or delivery thereof or for any damage arising therefrom or
occasioned thereby.
11. PROPRIETARY RIGHTS OF PARTICIPANTS.
Last Sale Reports and Quotation Information are the property
of the Participant on whose floor the respective transactions took place or the
quotations were entered, and no Participant shall be deemed to have waived any
of its proprietary interests therein as a result of furnishing the same to
Vendor.
12. DISCLOSURE BY VENDOR.
Vendor agrees to maintain at all times on a current basis, a
list of all persons to whom Vendor is furnishing Last Sale Reports and/or
Quotation Information, and to provide a full, complete and current copy of such
list (or changes from the previous version of the list) to OPRA not less
frequently than monthly. For each person included in the list who receives
Options Information on terminals or other devices furnished by or under the
control of Vendor, Vendor shall report the number of devices on which such
person currently receives Options Information.
At such reasonable times as OPRA shall request, Vendor agrees
to provide OPRA with a description in reasonable detail of the services
furnished by Vendor pertaining to Options Information, including a description
of the various components of such services, the form and nature of the
information made available through such services, identification of the persons
to whom Vendor provides such services, a description of the equipment used in
providing such services and the manner in which Vendor's equipment serves to
furnish such services (but without disclosing any of Vendor's trade secrets or
adversely affecting its proprietary interests in its equipment) and the nature
of any sales literature used by Vendor in marketing its equipment or services.
At the request of Vendor, such information shall be kept confidential by OPRA.
13. ALTERATION OR CESSATION OF TRANSMISSION OF LAST SALE REPORTS OR
QUOTATION INFORMATION.
Nothing herein shall be deemed to prevent, or restrict in any
manner whatsoever, the exercise by the Participants of their rights, without any
notice and without any liability to Vendor or to any other person, to furnish,
or to contract with any other person to furnish, Last Sale Reports or Quotation
Information by any means whatever, or to attach devices or equipment
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of any design or manufacture to circuits carrying Last Sale Reports or Quotation
Information, including devices or equipment designed or manufactured by any
Participant or any other person, whether or not competitive with the service or
equipment furnished by Vendor, on such terms and conditions as OPRA may
determine. OPRA may, upon compliance with any applicable requirements of the
Securities Exchange Act of 1934 (including any affirmative action by the SEC, if
required), (a) make such changes in the speed of transmission or other
characteristics of the electrical signals representing the Last Sale Reports or
Quotation Information as OPRA may from time to time determine (whether or not
such changes would require changes to be made by Vendor in its service or
equipment), (b) discontinue furnishing Last Sale Reports or Quotation
Information to Vendor, or (c) discontinue circuits carrying Last Sale Reports or
Quotation Information provided, however, that OPRA agrees to give Vendor as much
prior notice as is practicable under the circumstances (but in any event not
less than sixty days unless Vendor agrees to a shorter period of notice) of any
such action. The schedule of fees and charges pertaining to Options Information
may be changed by OPRA on not less than 30 days notice.
14. NO ENDORSEMENT BY OPRA.
Vendor shall not represent, and shall not cause or permit any
other person to represent, either directly or indirectly, that all or any part
of its service is sponsored, endorsed or approved by any Participant or by OPRA.
15. PATENT INDEMNITY.
Vendor hereby agrees to indemnify, hold harmless and defend
each Participant and each Affiliate of a Participant from and against any and
all suits, proceedings at law or in equity, and any and all liability, loss or
damages, including reasonable attorneys' fees, arising out of, or in connection
with any claim by any person that the use of Vendor's equipment infringes any
United States patent or violates any property right; provided, however, that
Vendor shall be notified promptly in writing of any such suit; and Vendor shall
have the sole control of the defense of any such suit or proceeding and all
negotiations for the settlement or compromise thereof, but only insofar as such
settlement or compromise does not impose any liability on any Participant or any
affiliate thereof.
16. EFFECTIVENESS OF AGREEMENT - TERMINATION.
This Agreement shall become effective as of the date set forth
on the first page hereof, and shall thereupon supersede and cancel any and all
previous agreements between the Vendor and any of the Participants providing for
the furnishing by such Participant of Last Sale Reports or Quotation Information
to the Vendor, or for the attachment of display devices to the circuits carrying
such information. Following its effectiveness, this Agreement shall continue in
effect until terminated as herein provided.
Upon compliance with any applicable requirements of the
Securities Exchange Act of 1934 (including any affirmative action by the SEC, if
required), either the Vendor or OPRA may terminate this Agreement on not less
than thirty days prior written notice to the other; the provisions of Section 15
hereof shall survive the termination of this Agreement.
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In the event a Participant, upon compliance with any
applicable requirements of the Securities Exchange Act of 1934 (including any
affirmative action by the SEC, if required), shall withdraw from the Plan, this
Agreement shall be deemed to have terminated with respect to such Participant
effective as of the date of such withdrawal.
Notwithstanding the withdrawal by any one or more of the
Participants from the Plan, this Agreement shall remain in effect as between the
remaining Participants in the Plan and the Vendor, unless and until terminated
as herein provided, and on or following any such withdrawal the term
"Participant" and "Participants" as used herein shall refer only to the
remaining Participants in the Plan.
17. ARBITRATION.
Any dispute or controversy between the parties hereto relating
to the breach or alleged breach of this Agreement shall be promptly submitted to
Arbitration in New York, New York in accordance with the rules of the American
Arbitration Association then obtaining and judgment upon any award rendered may
be entered in any court having jurisdiction. Solely for the purposes hereof,
each of the parties hereto hereby submits to the jurisdiction of the courts of
the State of New York.
18. ASSIGNMENT OF AGREEMENT.
The Vendor shall not assign this Agreement in whole or in part
without the prior written consent of the OPRA, except to a successor corporation
upon merger or consolidation of the Vendor, or to a corporation acquiring all or
substantially all of the property, assets and business of the Vendor. Subject to
the foregoing restriction, this Agreement shall bind and inure to the benefit of
the assignees and successors of the parties hereto.
19. MOST FAVORED PROVISION.
If Participants shall enter into any agreement with any other
person providing for such other person acting as a vendor to have access to Last
Sale Reports or Quotation Information and such agreement contains terms and/or
conditions more favorable to such other person than the terms and conditions of
this Agreement applicable to Vendor, OPRA shall promptly notify Vendor thereof
and, at Vendor's request, shall amend this Agreement to include substantially
the same terms and conditions as are included in such other agreement.
20. NEW PARTICIPANTS.
Each new Participant, as a condition to its becoming a party
to the Plan, shall be required to subscribe in writing to the terms and
conditions of this Agreement and to authorize OPRA to take action on its behalf
in respect to this Agreement.
21. NOTICES
All notices, bills, consents or requests required or
authorized to be given hereunder shall be deemed sufficiently given if in
writing and sent by registered mail to OPRA at
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Options Price Reporting Authority
000 Xxxxx XxXxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
and in the case of Vendor
Attention:
22. INTEGRATION; MODIFICATION.
(a) This Agreement constitutes the entire agreement between
the parties relating to the furnishing of Last Sale Reports or Quotation
Information to Vendor and the use thereof as permitted hereunder.
(b) No modification of this Agreement shall be valid unless
set forth in writing and executed by the parties hereto.
23. GOVERNING LAW.
This Agreement shall be construed in accordance with and
governed by the laws of the State of Illinois. The respective rights and
obligations of the parties to this Agreement shall be subject to any applicable
provisions of the Securities Exchange Act of 1934 (as amended) and any rules and
regulations promulgated thereunder.
24. HEADINGS.
Section headings used in this Agreement are for convenience in
reference only and shall not affect the meaning or construction hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers or duly authorized agents
on the day and year first above written.
FIRST INTERNATIONAL FINANCIAL CORP. OPTIONS PRICE REPORTING AUTHORITY --
AMERICAN STOCK EXCHANGE, INC.
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[Name of Vendor]
CHICAGO BOARD OPTIONS EXCHANGE,
By /s/ Xxxx Xxxx INCORPORATED
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(Title) NEW YORK STOCK EXCHANGE, INC.
PRESIDENT
PACIFIC STOCK EXCHANGE INCORPORATED
PHILADELPHIA STOCK EXCHANGE, INC.
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By /s/
Executive Director
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ATTACHMENT B
OPTIONS PRICE REPORTING AUTHORITY
FEE SCHEDULE
(EFFECTIVE SEPTEMBER 1, 1996)
DESCRIPTION BASIC SERVICE(1) FCO SERVICE(1)
Professional Subscriber Information Fee See separate Professional Subscriber Fee Schedule
attached as Exhibit A to Professional Subscriber
Agreement
Non-Professional Subscriber Information Fee: A monthly fee payable by $2.00 per N/A
every vendor that furnishes Options Information to any nonprofessional nonprofessional
subscriber subscriber
Direct Access Charge: A monthly fee payable by every person that has $750 $150
been authorized by OPRA to receive Options Information via the
consolidated high-speed service from OPRA's processor. This charge
includes one primary and one backup circuit connection at the
processor. Additional circuit connections are available at a monthly
charge of $100 per connection.
Redistribution Fee: A monthly fee payable by every vendor that $1,500 $300
redistributes Options Information to any person, whether on a current
or delayed basis, except that this fee shall not apply to a vendor
whose redistribution of Options Information is limited solely to
"historical" Options Information, as that term is defined in the Vendor
Agreement.
Subscriber Indirect Access Fee: A monthly fee payable by every $600 $100
subscriber that receives indirect access to Options Information via a
high speed line or other bulk (data feed) transmission from an OPRA
vendor. This fee shall not apply to a subscriber that receives a data
feed transmission on a single, stand-alone computer for the sole
purpose of providing a single-screen display of Options Information for
the subscriber's internal use, or to a subscriber whose access and
entitlement to Options Information received via a data feed
transmission is controlled by an authorized Control Service Provider or
by the vendor furnishing the data feed transmission.
Control Service Fee: A monthly fee payable by every authorized control $2,800 N/A
service provider that offers a market information electronic data
control service to XXXX
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subscribers and in connection therewith has
entered into a Data Control Service Agreement with OPRA.
Voice-Synthesized Market Data Service Fee: A monthly fee payable by $50 per port, or $0.02 $10 per port, or
every vendor or subscriber that offers a voice-synthesized market data per "quote packet" $0.005 per "quote
service for each active simultaneously accessible port of the packet"
voice-synthesized computer facility of the vendor or subscriber through
which such service is furnished. Alternatively, vendor may elect in
writing to pay a usage-based fee for each "quote packet" consisting of
any one or more of the following values: last sale, bid/ask, and
related market data for a single series of options or a related index
accessed over vendor's Voice-Synthesized Market Data Service, as an
alternative to the port charge described above. All inquiries shall be
counted for purposes of calculating the usage-based fee, except that
requests for "historical" information shall not be subject to charge.
For this purpose, market information derived from a given trading day of
an options market becomes "historical" upon the opening of trading on
the next succeeding trading day of that market.
Dial-up Market Data Service Utilization Fee: A monthly fee, payable in $50 per port, or $0.02 $10 per port, or
arrears, based on the peak number of ports of vendor's computer per "quote packet" $0.005 per "quote
simultaneously used to provide service during the month for which the packet"
charge is assessed. Alternatively, vendor may elect in writing to pay
a usage-based fee for each "quote packet" consisting of any one or more
of the following values: last sale, bid/ask, and related market data
for a single series of options or a related index accessed over
vendor's Dial-up Market Data Service, as an alternative to the port
charge described above. All inquiries shall be counted for purposes of
calculating the usage-based fee, except that requests for "historical"
information shall not be subject to charge. For this purpose, market
information derived from a given trading day of an options market
becomes "historical" upon the opening of trading on the next succeeding
trading day of the market.
Radio Paging Service Fee: A monthly fee, payable in arrears by every $1 per device, or No Charge
vendor that offers a radio paging market data service, for each text $0.02 per "quote
display paging device enabled to receive the service provided by the packet"
vendor or by a radio paging company that receives options market data
from the vendor. Alternatively, vendor may elect in writing to pay a
usage-based fee for each "quote packet" consisting of any one or more
of the following values: last sale, bid/ask, and
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related market data for a single series of options or a related
indexed accessed over vendor's Radio Paging Service, as an alternative
to the device charge described above. All inquiries shall be counted
for purposes of calculating the usage-based fee, except that requests
for "historical" information shall not be subject to charge.
For this purpose, market information derived from a given
trading day of an options market becomes "historical" upon the
opening of trading on the next succeeding trading day of that market.
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(1) OPRA's basic service does not include data pertaining to foreign
currency options; this data is provided by the FCO Service.
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OPTIONS PRICE REPORTING AUTHORITY
SUBSCRIBER FEE SCHEDULE
(EFFECTIVE MARCH 1, 1997)
BASIC SERVICE(1)
DEVICE-BASED PROFESSIONAL SUBSCRIBER FEE
Subscriber shall pay a monthly fee based upon the number of
electronic display or interrogation devices maintained by Subscriber that are
capable of displaying or reporting OPRA's Basic Service. The monthly charge per
device shall be as follows:
NUMBER OF DEVICES MEMBER(2) NON-MEMBER
1 - 9 $23.00 $24.00
10 - 29 14.00 19.00
30 - 99 11.00 19.00
100 - 749 11.00 12.75
750+ 9.00 12.75
ENTERPRISE RATE PROFESSIONAL SUBSCRIBER FEE
As an alternative to the Device-based Professional Subscriber
Fee, OPRA's Enterprise Rate Professional Subscriber Fee is available to those
Subscribers that are members or associate members in good standing of one or
more of the exchanges that are parties to the OPRA Plan, and that elect to pay
Subscriber Fees at the Enterprise Rate by signing the Enterprise Rate Amendment
to the Subscriber Agreement. The Enterprise Rate Subscriber Fee is a monthly fee
based on the number of a Subscriber's registered representatives based in the
United States, its territories and possessions as reported by the NASD, subject
to adjustment in accordance with the Enterprise Rate Amendment to the Subscriber
Agreement. The monthly fee shall be determined as follows:
NUMBER OF REGISTERED MONTHLY FEE PER
REPRESENTATIVES REGISTERED REPRESENTATIVE
1 - 20,000 $10.00(3)
over 20,000 $ 7.50
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(1) OPRA's Basic Service does not include last sale and quotation
information pertaining to foreign currency options. Subscribers who
have access to FCO information are subject to a separate FCO Service
subscriber fee.
(2) To be entitled to the Member Rate, a subscriber must certify that it is
a member or associate member in good standing of one or more of the
exchanges that are parties to the OPRA Plan. Member Rate Fees are
discounted by 2% for members who preauthorize payment by electronic
funds transfer through an automated clearinghouse system.
(3) Subject to minimum monthly fee of $2,000 per firm.
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FCO SERVICE
SUBSCRIBER FEE
Subscriber shall pay a monthly fee based upon the number of
electronic display or interrogation devices maintained by Subscriber that are
capable of displaying or reporting OPRA's FCO Service. The monthly charge per
device shall be as follows:
NUMBER OF DEVICES FEE
1 $3.00
2 - 9 2.50
10 - 749 2.00
750+ 1.50
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Attachment C
OPTIONS PRICE REPORTING AUTHORITY
NONPROFESSIONAL SUBSCRIBER APPLICATION AND AGREEMENT
(LAST SALE AND QUOTATION INFORMATION FOR PERSONAL NONBUSINESS USE ONLY)
TO:
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(Name and Address of Vendor)
The undersigned ("Applicant") hereby applies to the Vendor
named above ("Vendor") for approval as a Nonprofessional Subscriber to receive
for personal nonbusiness use current options last sale information and current
options quotation information (the "Information") published by the Options Price
Reporting Authority ("OPRA") pursuant to a Plan declared effective by the
Securities and Exchange Commission. In reviewing and approving this Application
and Agreement, Vendor is authorized to act on behalf of the OPRA participants,
which are those national securities exchanges and associations who, from time to
time, are parties to said Plan. Applicant acknowledges that all representations
and agreements made herein and all payments made hereunder are for the benefit
of the OPRA participants.
For the purpose of this Application and Agreement, Applicant
hereby represents and agrees as follows (type or print all answers; attach
separate sheets if necessary):
1. Applicant's full name and residence address:
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2. Name and address of Applicant's employer(s) and/or
Applicant's other business address(es):
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3. Location where the Information is to be received by Applicant
(state "Portable" if Information is to be received on portable
equipment):
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4. A description of the equipment to be used by Applicant in
receiving the Information (identify number and types of
devices; include mfr. and model no. if available):
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5. As a condition of being approved as a Nonprofessional
Subscriber, Applicant represents and agrees that the following
statements are and will continue to be true for so long as
Applicant receives Information as a Nonprofessional
Subscriber:
(a) Applicant is making this Application and Agreement in
his or her own individual capacity and not on behalf
of a firm, corporation, partnership, trust or
association.
(b) Applicant shall use the Information solely in
connection with his or her individual personal
investment activities and not in connection with any
trade or business activities.
(c) Applicant shall receive the Information only at the
location and via the equipment identified in items 3
and 4 above, and shall not furnish the Information to
any other person.
(d) Applicant is not a securities broker-dealer,
investment advisor, futures commission merchant,
commodities introducing broker or commodity trading
advisor, member of a securities exchange or
association or futures contract market, or an owner,
partner, or associated person of any of the
foregoing.
(e) Applicant is not employed by a bank or an insurance
company or an affiliate of either to perform
functions related to securities or commodity futures
investment or trading activity.
6. For the privilege of receiving the Information, Applicant
agrees to pay to Vendor for the benefit of the OPRA
participants the OPRA Nonprofessional Subscriber Fee in such
amount and at such times as shall be established by OPRA from
time to time, plus any applicable federal, state or local
taxes. This Fee shall be in addition to any charges imposed by
Vendor. OPRA shall provide notice to Vendor of any change in
this Fee not less than 30 days prior to the effectiveness of
such change. Vendor shall be responsible for notifying its
Nonprofessional Subscribers of all Fee changes.
7. Applicant acknowledges that the Information is and shall
remain the property of the respective exchange or other market
on which a reported transaction took
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place or a reported quotation was entered, and Applicant shall
make no use of the Information except in compliance with the
terms of this Application and Agreement.
8. DISCLAIMER OF LIABILITY -- NEITHER OPRA NOR ANY OPRA
PARTICIPANT GUARANTEES THE TIMELINESS, SEQUENCE, ACCURACY OR
COMPLETENESS OF ANY OF THE OPTIONS LAST SALE PRICES, QUOTATION
INFORMATION, OR OTHER MARKET INFORMATION SUPPLIED TO APPLICANT
HEREUNDER AND NEITHER OPRA NOR ANY OPRA PARTICIPANT SHALL BE
LIABLE IN ANY WAY TO APPLICANT OR TO ANY OTHER PERSON, FOR ANY
DELAYS, INACCURACIES, ERRORS IN OR OMISSIONS OF, ANY OF THE
INFORMATION OR THE TRANSMISSION THEREOF, OR FOR ANY DAMAGES
ARISING THEREFROM OR OCCASIONED THEREBY OR BY REASON OF
NONPERFORMANCE OR INTERRUPTION OF ANY OF THE OPTIONS LAST SALE
PRICES, QUOTATION INFORMATION OR OTHER MARKET INFORMATION
SUPPLIED TO APPLICANT FOR ANY CAUSE WHATEVER.
9. Applicant's privilege of receiving the Information hereunder
may be terminated by Applicant or by Vendor upon 30 days
written notice from the terminating party to the other party,
and shall be terminated immediately at any time that Vendor or
OPRA determines that Applicant is not in compliance with this
Application and Agreement or that any of Applicant's
representations herein are not true. Upon a determination by
Vendor or OPRA that Applicant received access to Information
as a Nonprofessional Subscriber during any period when
Applicant did not meet the qualifications for such access,
within 30 days of receipt of written notice of such
determination Applicant shall pay to OPRA the full amount of
OPRA's Professional Subscriber fee for the period during which
Applicant had access to the Information, less Applicant's
Nonprofessional Subscriber fees for such period actually
received by OPRA.
10. Nothing herein shall be deemed to prevent or restrict any OPRA
Participant from discontinuing to furnish options last sale
information or quotation information for dissemination nor to
restrict OPRA from making such changes in the speed of
transmission, the characteristics of the electrical signals
representing the Information or the manner of disseminating
the same, as OPRA shall from time to time determine to be
appropriate; but in the event of any such discontinuance or
change, OPRA shall give such notice thereof to Vendor as is
reasonable under the circumstances.
11. Applicant agrees to inform Vendor promptly in writing at its
address set forth above of any changes in the information
provided herein and to furnish Vendor any additional
information requested by it in connection with Applicant's
receipt of the information.
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(Applicant's Signature)
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(Type or Print Applicant's Name)
APPROVED:
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Vendor
By:
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Dated:
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