exv10w46






Exhibit 10.46



Confidential Treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request. Omissions are
designated as “***”. A complete version of this exhibit has been filed separately with the
Securities and Exchange Commission.




FOREX INTRODUCING BROKER AGREEMENT




BETWEEN




GAIN CAPITAL GROUP, INC.




AND




TRADESTATION SECURITIES, INC.




 









 





FOREX

INTRODUCING BROKER AGREEMENT




     This FOREX INTRODUCING BROKER AGREEMENT (“Agreement”) is made this 20th day of April, 2005 by
and between GAIN Capital Group, Inc., a Delaware corporation (“GAIN”), and TradeStation Securities,
Inc., a Florida corporation (“Broker”).



RECITALS





	A.	 	Broker wishes to introduce Broker’s customers (“Customers”) on a fully-disclosed basis to
GAIN, including Customers that may be referred to Broker by GAIN (as described later in this
Agreement), for the purpose of enabling the Customers to enter into principal foreign exchange
(“forex”) transactions with GAIN.
	 
	B.	 	The respective roles of GAIN and Broker with respect to forex accounts of Customers,
generally speaking, shall be as follows. Broker’s role is to acquire Customers, including Customers
that may be referred to Broker by GAIN (as described later in this Agreement), for the forex
services GAIN will provide, using whatever marketing, sales and account-opening methods,
techniques, media and efforts that Broker, in its sole and absolute discretion, deems appropriate.
Broker shall also provide customer and technical support services to the Customers, and otherwise
own and maintain the customer relationship with Customers and all good will associated therewith
(GAIN will, at no additional cost or expense to Broker, provide training and remote services
directly to Broker to support these services as and when reasonably requested by Broker on a day
to- day basis). GAIN will provide trade desk and technical support services to Broker’s trade desk
and client services personnel when they call with issues relating to orders, deals and other issues
that may be raised by Customers with Broker on a daily basis.
GAIN shall not deal directly with Customers. GAIN’s role is to act as a principal/counterparty
in forex deals with Customers and to provide all order placement, execution, clearing, settlement,
processing, reporting and other deal services and functions relating to forex transactions of and
with Customers. Broker is not the only introducing broker from whom GAIN or its affiliates may be
introduced forex customers or business, and GAIN is not or will not necessarily be the sole forex
principal or clearing firm to or with whom Broker or its affiliates may introduce or transact forex
business (i.e., neither party is granting or agreeing to an “exclusive” arrangement); provided,
however, other than pursuant to any agreements or arrangements Broker has in place on the date of
this Agreement, Broker shall, as long as this Agreement is in effect, not use any forex principal
other than GAIN during 2005.
	 
	C.	 	Forex orders will be made by Customers by seamlessly
accessing GAIN’s electronic forex trading
system via, as the complete front-end, Broker’s TradeStation trading platform. In order to
accomplish this, each party, at its own expense, shall, in cooperation with the other party,
develop and complete such application program interfaces and other technical compatibilities as
required to be able to provide to




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	 	 	Customers, as promptly as possible, using a FIX server engine
framework, the TradeStation trading platform for the design, back-testing, optimization, analysis,
	 
	 	 	automation and placement of forex trading strategies, including manual and automated trade
execution seamlessly through GAIN’s electronic forex trading system, together with real-time access
to Customers’ positions and other trading and account information (collectively, the
“Compatibility”).
	 
	 	 	REPRESENTATIONS, WARRANTIES, COVENANTS AND UNDERTAKINGS





1.0 AGREEMENT




     Subject to the terms of this Agreement, GAIN shall deal as a principal/counterparty in forex
transactions with Customers of Broker. Each party represents, warrants and covenants to the other
that the Recitals above are true and accurate, and that the Recitals are hereby restated and
incorporated by reference in this Section I as if fully herein set forth, and constitute a part of
this Agreement.



2.0 REPRESENTATIONS, WARRANTIES AND COVENANTS




     2.1 Representations, Warranties and Covenants. Each party represents, warrants and
covenants to the other as follows:



     2.1.1 Organization. It is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its formation. It is authorized to do business in each jurisdiction
in which it is required to be authorized to conduct its business, except where the failure to
qualify would not have a material adverse effect on Broker’s or GAIN’s business.



     2.1.2 Registration. It has obtained all registrations, licenses or memberships
required by applicable governmental, quasi-governmental, agency or self-regulatory laws, rules, or
regulations as necessary for it to enter into and carry out its obligations and activities under
and contemplated by this. Agreement.



     2.1.3 Authority to Enter Agreement. It has all requisite power and authority, whether
arising under applicable law or the applicable rules and regulations of any regulatory or
self-regulatory agency or organization to which it is subject, to enter into this Agreement and to
perform its obligations and contemplated activities in accordance with the terms of this Agreement.
This Agreement has been duly and validly executed and delivered by it and constitutes its legal,
valid and binding obligations, enforceable against it in accordance with the terms hereof.



     2.1.4. Material Compliance with Rules and Regulations. Such party and its affiliates
and, to such party’s knowledge, each of their respective employees, are in material compliance
with, and during the term of this Agreement shall remain in material compliance with, the
registration, qualification, customer protection, and all other rules and regulations of every
governmental, quasi-governmental, agency and self-regulatory authority to which it or any of its
employees is subject (all of the laws, rules and regulations referred to in Sections 2.1.2, 2.1.3
and



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this 2.1.4, as well as all other laws, rules or regulations applicable to either party’s
business or the transactions or activities contemplated by this Agreement, are collectively
referred to as “Rules”); provided, however, such party shall not be in breach of this
representation and warranty if it or its affiliate (as applicable) remedies any material violation
that occurs within a reasonable time following notice or discovery thereof.




     2.1.5 No Pending Action, Suit. Investigation, or Inquiry. Every material action, suit,
investigation, inquiry, or proceeding (formal or informal) pending or threatened against or
affecting it, any of its affiliates, or any officer, director, or principal of it, or their
respective property or assets, by or before any court or other tribunal, any arbitrator, any
governmental authority, or any agency or self-regulatory organization of which any of them is a
member, is disclosed in its publicly available filings, and it shall amend or supplement such
filings as required by applicable law in the event a material disclosable event occurs. If it is
not obligated by law to publicly disclose all material litigation or claims against it, it shall
promptly notify the other party of any such material action, suit, investigation, inquiry or
proceeding that arises.



     2.1.6 Independent Contractor. Each party is an independent contractor and not an agent
or employee of the other. Neither will hold itself out as an agent of the other in any capacity.
Each party acknowledges that the other does not control the business or operations of such party.
Neither party will use the name of the oilier in answering its telephone or in any other way hold
itself out to be associated with the oilier, other than the relationship of introducing broker to
principal. Except as otherwise specifically set forth in this Agreement, neither shall have any
responsibility whatsoever for the expenses incurred by the other in connection with the operation
of the other’s business.



     2.1.7 Forex Data Services. GAIN shall provide to Broker, and hereby grants to Broker,
a royalty-free (subject only to the provisions of Section 14.1, if those provisions become
applicable) license to use and provide to Customers and other end users forex market data (which
shall be provided by GAIN as part of the Compatibility) on a streaming real-time, delayed, daily
and historical basis. This forex market data shall be the same data GAIN currently uses for its
proprietary and highest-end forex trading operations, as same may be enhanced or improved from time
to time, and shall be of the type and quality used by active or institutional forex traders to
chart and analyze the forex markets in real-time and to spot trade. Broker’s license to use and
provide the forex data includes the right to use such data internally for any purpose related to
Broker’s or its affiliates’ businesses, and to redistribute such data to Customers and other end
users of Broker and its affiliates for their personal use and/or to assist them in their forex
trading. Historical data acquired during the term of this Agreement may continue to be used and
provided royalty-free perpetually following any expiration or termination of this Agreement, but
real-time, delayed and daily market data services shall not be received by Broker following the
effective date: of termination of this Agreement except pursuant to Section 14.1, if applicable, or
unless Broker and GAIN enter into an independent redistribution agreement at that time. In no event
Shall Customers or other end users be given the right to redistribute or re-vend the data service
to others. GAIN represents, warrants and covenants to Broker that it has the full power, right and
authority to grant to Broker the license to use the forex data as described above. At no cost or
expense to Broker, and as part of the Compatibility, GAIN shall provide such application
programming interfaces and other technical information and assistance as Broker reasonably



4









 




requires
or requests to assist Broker in integrating the forex data with the TradeStation platform and to
enable Broker to redistribute the data to Customers and other end users as part of; or in
conjunction with, Broker’s or its affiliates’ technology  or other services. GAIN’s obligation to
provide ongoing assistance shall terminate March 31, 2008, even though Broker’s right to use and
redistribute historical data continues perpetually.




3.0 CUSTOMER ACCOUNTS




     3.1 Acceptance of New Accounts. Broker shall be responsible for opening and approving
new accounts for forex trading with or through GAIN, subject to GAIN’s rejection rights described
below.




     3.1.1 Rejection of Accounts. GAIN reserves the right to reject any account which
Broker may forward to GAIN as a potential new account provided there is a reasonable basis for such
rejection. GAIN also reserves the right to terminate any account previously accepted by it as a new
account provided there is a reasonable basis for such termination. GAIN must notify Broker directly
of such decision so that Broker may inform the Customer or Customer prospect of the decision.



     3.1.2 Customer Information. At the time of the opening of any new account, Broker
shall obtain information from the Customer sufficient to satisfy itself as to the identity of the
Customer and the source of the Customer’s funds for the purpose of complying with the applicable
requirements of any laws regarding anti-money laundering.



     3.2 Maintenance of Account Information. Broker shall ascertain the essential facts
relative to any Customer account, including the genuineness of all documents and signatures
provided by Customers for each account. Broker shall also have the responsibility, to the extent
required by Rules, to make full, fair and complete disclosure of the risks, terms and conditions of
forex trading to the Customers. GAIN may rely without inquiry on the validity of all Customer
information furnished to it by Broker.



4.0 SUPERVISION OF ORDERS AND ACCOUNTS




     4.1 Soliciting and Accepting Orders. Broker shall make any disclosures to, and obtain
any agreements from, Customers required by applicable Rules, including, without limitation, any
disclosures or agreements reasonably required by GAIN to be given to, or obtained from, Customers
(provided that GAIN timely provides the form and content of such required agreements or disclosures
to Broker). Broker may accept orders for forex transactions (via its trade desk or via the
TradeStation platform) and will transmit such orders to GAIN orally or via the Compatibility.
Broker shall obtain all essential facts relating to each Customer, each account, each order that is
orally transmitted by a Customer to Broker’s trade desk, and each person holding a power of
attorney over any account, in order to assess authenticity. Broker will not open or maintain
accounts for persons who it knows to be minors or otherwise legally incompetent.



     4.2 Right to Refuse Orders. GAIN may, if reasonable under the circumstances, but



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solely at its own risk and expense, refuse to accept and deal with any order, discontinue accepting
orders from any Customer, and impose limits on the size of any Customer account and the positions
carried therein.




     4.3 Preparation and Transmission of Confirmations and Statements. GAIN, at its
expense, shall prepare and deliver, in accordance with forex industry standards, confirmations and
periodic summary statements on an electronic basis to Customers (and/or on a hard ·-copy mailed
basis if GAIN lacks the right or authority to give solely electronic statements) and Broker. All
confirmations and statements shall identify GAIN as dealer and Broker as referring agent but
otherwise shall, in look and feel and branding, resemble Broker’s statements to its account
holders.



     4.4 Examination and Notification of Errors. Subsequent to the close of trading on each
trading day, GAIN will make available to Broker on an electronic basis a daily preliminary repollt
recapping the day’s trades made with Customers. In addition, GAIN shall make available on an
electronic basis daily equity and margin runs to Broker reporting all Customers’ trades for the
previous trading day as well as all open or rollover positions for Customers. Broker has the
obligation to examine each of the aforementioned reports and thereby check trades Broker has
executed for its Customers’ accounts via Broker’s trade desk by orally transmitting order
information to GAIN (“Orally-transmitted Trades”). Broker will use reasonable efforts to notify
GAIN of any patent error regarding Orally-transmitted Trades claimed by Broker in any account prior
to 9:00 AM (eastern time) on the trading day subsequent to the execution of the transaction in
dispute, provided that Broker is given sufficient and timely information to identify the error.
Solely GAIN, and not Broker, is responsible for any and all trading or reporting errors for trades
executed by GAIN or Customer.



     4.5 Responsibility for Errors in Execution. As between Broker and GAIN, GAIN shall be
responsible for all Customer orders and deals and for any errors in the recording, transmission,
processing, execution, clearing, settlement or reporting of such orders or deals.
Broker shall be responsible to transmit to GAIN Orally-transmitted Trade orders it receives from
Customers.



5.0 MARGIN AND DEFICITS




     5.1 Margin Requirements. ***. Without limitation of the foregoing, in the event of a
margin call that is not met, either Broker or GAIN, in its sole discretion, may liquidate any
account in whole or in part. In addition, each of Broker and GAIN is authorized to take whatever
action it reasonably deems necessary to protect itself from risk. Either Broker or GAIN may,
whenever in its sole and absolute discretion considers it necessary, liquidate the positions in any
Customer’s account. Either’s compliance with a request by the other to withhold action shall not be
deemed a waiver by either of any of its rights under this Agreement. GAIN agrees to be responsible
for, and to hold Broker harmless from any loss or expense incurred by Broker as a result of, a
margin call or an automatic freezing or liquidation of a Customer account by GAIN, or an attempted
or failed freezing, liquidation or collection by GAIN, or other actions taken by GAIN based upon
its risk management decisions for margin account activity.



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     5.2 Deficits. GAIN assumes full risk for all obligations of the Customers, including
in the event any Customer’s account is in a deficit status, 24 hours a day, 7 days a week, 52 weeks
a year. GAIN may not withhold compensation or other amounts payable to Broker as a result of
Customer account deficits or a Customer’s refusal, failure or inability to pay or meet any
obligation.


5.3 Charging of Interest. Interest with respect to deficit balances in Customers’ accounts
shall be charged at ***.




6.0 AUDIO TAPING OF TELEPHONE CONVERSATIONS




     Each party understands that for quality control; dispute resolution or other business
purposes, the other party may record some or all telephone conversations between them. Each party
hereby consents to such recording and will inform Customers, employees, representatives and agents
of this practice.



7.0 COMPENSATION AND CHARGES




     During the term of this Agreement, GAIN shall compensate Broker as set forth in Exhibit A
hereto and as may from time to time be mutually agreed upon in writing. Broker may, in its sole
discretion, at any time and from time to time, require Customers to be charged and to pay
commissions and other fees and expenses, including, but not limited to, administrative and inactive
account fees and charges.



8.0 FUNDS AND SECURITIES



GAIN is not responsible for any funds or securities delivered by a Customer to Broker until
those funds have been delivered to GAIN or GAIN’s bank or other custodial agent ill clear funds.
Any funds or securities of a Customer received by GAIN shall not be required to be segregated
by GAIN from the assets of other Customers or GAIN’s assets and revenues as a forex
principal/counterparty, except as otherwise required by applicable Rules or best practices in the
industry, and provided that GAIN remains a single-purpose entity that engages solely in the
business of acting as a principal/counterparty for forex trading (and related and incidental
activities and services) and that, in all events, Customer funds shall not at any time be
commingled with funds of any GAIN affiliates or other persons or entities. GAIN fully assumes all
risks and liabilities related to decisions it makes relating to the handling and segregation of
Customer assets, and those decisions shall never violate, or cause violation of, any Rules.




9.0 FURTHER OBLIGATIONS AND RESPONSIBILITIES OF PARTIES



9.1 Disciplinary Action,’ Suspension, or Restriction. If either party or any of such
party’s affiliates, or any officer, director or principal of such party or its affiliates, becomes
subject to investigation, disciplinary action, suspension, or restriction by a governmental agency,




7









 





exchange, or regulatory or self-regulatory organization having jurisdiction over such person or
entity or its business, that could reasonably be expected to affect the transactions contemplated
by this Agreement, such party shall notify the other promptly, orally and in writing, and provide
the other with a copy of any document requests, subpoenas and decisions relating to such action,
suspension or restriction. The other party may take any action it reasonably deems to be necessary:
(i) to assure that such party will continue to comply with all applicable legal, regulatory, and
self-regulatory requirements, notwithstanding such action, suspension, or restriction; and (ii) to
comply with any requests, directives, or demands made upon the other party by any such governmental
agency, exchange, or regulatory or self-regulatory organization. 9.2 Privacy of Customer Financial
Information. GAIN agrees that it shall not take any action inconsistent with Broker’s published
policies relating to the privacy of Customer identity, contact and financial information. In no
event, except as specifically required by Rules, shall GAIN disclose to anyone any facts, metrics
or statistics relating to Customers’ trading activity or accounts, whether individually or as a
group.




10.0 ACCESS TO INFORMATION; FINANCIAL REPORTS.




     10.1 Inspection. Each party shall make its books and records relating to forex trading
by Customers available for reasonable inspection at all times by duly authorized representatives of
the other party.



     10.2 Customer Information. Each party shall, upon request, provide the other with any
information in its possession with respect to any Customer relating to forex trading.



11.0 DAMAGES; INDEMNIFICATION




     11.1 Limitations on Damages. Neither party shall be liable for special, indirect,
incidental, consequential or punitive damages, whether such damages arc incurred or
experienced as a result of entering into or relying on this Agreement or otherwise, even if each
party has been advised of the possibility of such damages. Broker and GAIN each agree not to make
any claim for punitive damages against the other. Each party acknowledges and agrees that the
parties’ respective economic positions under this Agreement reflect and take into account an
allocation of risks including, but not limited to, the foregoing limitation of liability and the
indemnity obligations set forth below. A modification of the allocation of risks set forth in this
Agreement would affect each party’s bargain and, in consideration thereof, each party agrees to
such allocation of risks, including the indemnification obligations set forth below.



     11.2 GAIN Indemnification. In addition to any other obligations it may possess under
other provisions of this Agreement, GAIN shall indemnify, defend, and hold harmless Broker, and its
affiliates and officers and directors, from and against all claims, demands, proceedings, suits,
actions, liabilities, expenses, and reasonable attorneys’ fees (including fees and costs incurred
in enforcing Broker’s right to indemnification), and costs in connection therewith, arising out of
any negligent, dishonest, fraudulent or criminal act, error or omission on the part of GAIN or any
of its officers, agents or employees with respect to the services provided by GAIN, or the
transactions contemplated to be performed by GAIN, under this Agreement, or GAIN’s business, or
which arise out of any event or occurrence for which GAIN has agreed to



8









 




assume responsibility, or
which arise out of or relate to forex orders and deals, and/or the execution, clearing, settlement
or reporting thereof. This paragraph shall be read together with Section 11.3 below, so that each
party’s indemnification obligations are proportionate to its fault.




     11.3 Broker Indemnification. In addition to any other obligation it may possess under
other provisions of the Agreement, Broker shall indemnify, defend,
and hold harmless GAIN, and its
affiliates any officers and directors, from and against all claims, demands, proceedings, suits”
actions, liabilities, expenses, and reasonable attorneys’ fees (including fees and costs incurred
in enforcing GAIN’s right to indemnification), and costs in connection therewith, arising out of
any negligent, dishonest, fraudulent, or criminal act, error or omission on the part of Broker or
any of its officers, agents or employees with respect to Broker’s business, Broker’s dealings with
Customers, or with respect to the transactions contemplated to be performed by Broker under this
Agreement, or which arise out of any event or occurrence for which Broker has agreed to assume
responsibility. This paragraph shall be read together with Section 11.2 above, so that each party’s
indemnification obligations are proportionate to its fault.



     11.4 Indemnified Third-party’ Claims. Each party agrees to give the other prompt
written notice of any claim that might give rise to the other party’s indemnification obligations
under this Agreement, stating the nature and basis of the claim, and the actual or estimated amount
thereof (if it can reasonably be estimated), but the failure to give such notice shall not affect
the rights of the indemnified party except to the extent the indemnified party suffers actual
damage or harm as a result of the failure to give notice or the timing thereof. The indemnifying
party shall have the right, at its sole cost and expense, to defend such claim in its name and the
name of the indemnified party by counsel of the indemnifying party’s choosing that is reasonably
acceptable to the indemnified party. If there is a conflict that arises from the claim (other than
a dispute relating to the right to indemnification or proportionate fault, which each party may
pursue and defend through counsel of its own choosing and at its own expense) that reasonably
requires GAIN and Broker to be represented by separate counsel, then the indemnifying party
shall also be required to pay the reasonable fees and expenses of the indemnified party’s counsel,
subject to its right to approve such counsel (which shall not be unreasonably withheld). Each party
agrees to render to the other such assistance as may be reasonably required to best ensure the
proper and adequate defense of the indemnified claim. The indemnified party may not settle any
claim without the consent of the indemnifying party; however, the indemnifying party may settle any
claim, if, as and when it so decides, following notice to the indemnified party describing the
settlement, provided that it reasonably demonstrates to the indemnified party, if requested, that
it has the financial resources to pay the settlement in accordance with its terms.



12.0 THIRD-PARTY RIGHTS




     This Agreement is not intended to grant any third party any rights, whether as a third party
beneficiary or otherwise, including, but not limited to, any Customers.



13.0 COMMUNICATIONS WITH THE PUBLIC




     13.1 Advertising. Neither GAIN nor Broker shall utilize the name of the other in any



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Way without the other’s prior written consent, which shall not be unreasonably withheld or delayed,
except to disclose the relationship between the parties. Neither party shall employ the other’s
name in such a manner as to create the impression that the relationship between them is anything
other than that of introducing broker and principal. Solely Broker is authorized to market and
advertise the forex services contemplated by this Agreement, which shall be in the name and under
the brands of solely Broker, and Broker may market and offer the forex services contemplated by
this Agreement together with its equities, futures, options and other brokerage and related
services; provided, however, that, solely for the purpose of soliciting and referring to Broker
forex or futures accounts for existing GAIN customers or prospects, GAIN may, with Broker’s prior
written approval of the copy, method and distribution, market by direct mail or similar direct
means the forex brokerage and deal services contemplated by this Agreement (“Referred Forex
Customers”) and Broker’s futures brokerage services
(“Referred Futures Customers”). The parties
acknowledge that a principal part of any marketing approach may be the value of the TradeStation
platform for the design, testing, optimization, automation and analysis of forex trading ideas and
strategies. The forex services under this Agreement shall be solely under the TradeStation brand,
and shall have a TradeStation brand look and feel, and the only references to GAIN in the forex
service offering shall be to fully disclose the relationship between Broker and GAIN, and the role
and services GAIN will perform, in the account opening documentation, the contract between the
Customer and GAIN therein, and in legal sections of marketing materials.




     13.2 Linking Between Sites. Without express written authorization, and except as
specifically described in this Agreement, neither party may provide or allow an electronic
hyperlink directly from its service or site on the Internet to the other’s.



     13.3 Referred Futures Customers. A “Referred Futures Customer” is any customer who opens a
futures brokerage account with Broker during the term of this Agreement (a) directly as a result of
the solicitation, procurement and referral of that customer by GAIN to Broker, and (b) at the time
of the referral, holds no other account with Broker or Broker’s affiliates (as a
securities, futures or forex brokerage customer or as a subscriber or software licensee). Broker
shall pay GAIN a referral fee, on a monthly basis, for each Referred Futures Customer, equal to 3%
of each base round-turn commission (GAIN acknowledges that nearly all of Broker’s futures trades
are electronic contracts for which $5.00 is the advertised base round-turn commission charged) paid
by such Referred Futures Customer with respect to each round-turn traded by such Referred Futures
Customers prior to the first anniversary of the date such Referred Futures Customer’s account is
funded. Broker has no obligation to approve or open, or refrain from closing or otherwise dealing
with, any futures account referred by GAIN.



14.0 TERMINATION OF AGREEMENT




     This Agreement shall continue until March 31, 2008 unless earlier terminated as hereinafter
provided:



     14.1 Termination Upon 30-Day Notice. This Agreement may be terminated by Broker
without cause upon at least ***. If Broker terminates this Agreement pursuant to this Section 14.1,
GAIN shall have the right to limit the number of new accounts it



10









 




accepts from Broker during the
period between the giving of notice and the transfer of Broker’s accounts. In the event that Broker
terminates this Agreement pursuant to this Section 14.1: (a) if the ,effective date of termination
is on or before ***, Broker shall pay to GAIN a fee of ***; (b) if the effective date of
termination is on or before ***, Broker shall pay to GAIN a fee of ***; (c) if the effective date
of termination is on or before ***, Broker shall pay to GAIN a fee of ***; and, (d) if the
effective date of termination is on or after ***, but prior to ***, Broker shall pay to GAIN a fee
of ***; provided, however, in no event shall any fee be payable if Broker’s notice to terminate is
given prior to Compatibility being attained to Broker’s satisfaction or if Broker’s notice of
termination is given prior to the sixtieth day following the date Customers first begin executing
forex deals with GAIN via the Compatibility as contemplated by this Agreement. If any fee described
in this Section 14.1 is payable by Broker, it shall be paid on or before the effective date of
termination and, when paid, shall constitute a lump-sum royalty payment for a continuation of the
license from GAIN to Broker of the forex market data pursuant to Section 2.1.7 (and, upon such
payment being made, such license shall automatically be so extended) from the effective date of
termination through ***.




     14.2 No Termination by GAIN Without Cause. This Agreement may be terminated by GAIN
only pursuant to Section 14.3 or 14.4 below.



     14.3 Default. If either party defaults in the performance of its obligations under
this Agreement, or otherwise violates the provisions of this Agreement, the non-defaulting party
may terminate this Agreement by delivering notice to the defaulting party: (i) specifying the
nature of the default; and (ii) notifying the defaulting party that unless the default, if curable,
is cured within a period of 30 days from the date of the notice, this Agreement will be terminated
without further proceedings by the non-defaulting party; provided, however, if the party in default
or violation commences its cure activities or actions within said 30-day period and diligently
pursues to cure until the cure is effected, the 30-day grace period shall be extended by the
additional time it takes to complete the cure.



     14.4 Inability to Perform. This Agreement may be terminated by GAIN or Broker
immediately in the event that the other party is enjoined, suspend
cd, prohibited, or otherwise
becomes unable to engage in the forex business or any part of it by operation of law or as a result
of any administrative or judicial order by any governmental, regulatory, or self-regulatory.
organization having jurisdiction over such party.



     14.5 Omnibus Account. The parties acknowledge and agree that it is anticipated that
Broker may, sometime in the future during the term of this Agreement, request to convert the
services described in this Agreement to undisclosed omnibus account services. GAIN agrees that if
and when that time comes (i) GAIN will, if reasonably requested by Broker, execute and deliver a
replacement or modified agreement materially consistent with the t=s of this Agreement (with all
business terms and risks at least as favorable to Broker as the ones set forth in this Agreement
and no less favorable than the terms of any omnibus account GAIN is then clearing) and (ii) GAIN
shall at no additional cost to Broker promptly implement all internal operational changes necessary
to facilitate Broker’s conversion from an introducing broker arrangement to an omnibus account.



     14.6 Conversion of Accounts. In the event that this Agreement is terminated for any
reason other than by a valid termination by GAIN pursuant to Section 14.4, Broker shall arrange



11









 




for
the conversion of Broker’s and its Customers’ accounts to another company that will act as
principal counterparty or otherwise provide forex trading services for Broker’s introduced
customers, or to Broker if it plans to directly engage in such activities. Both parties shall use
all reasonable efforts to help ensure that the transition is’ as seamless and uninterruptive to
Customers as possible. Broker shall give GAIN notice (the “Conversion Notice”) of: (i) the name of
the company that will assume responsibility for forex services for Customers and Broker; (ii) the
expected date on which such company will commence providing such services (which is subject to
reasonable changes as the conversion is implemented); (iii) whether SI bulk transfer is being
requested (which, if it is, shall be honored by GAIN within a reasonable time period and include a
blanket assignment of GAIN’s agreements and other rights with or relating to Customers in form and
content reasonably acceptable to Broker); and (iv) the name of an individual or individuals within
the new company whom GAIN may contact to coordinate the conversion. With respect to any such
conversion, each party shall comply with all applicable Rules, and bear its own cost and expenses
relating to the conversion.




     14.7 Survival. Termination of this Agreement in any manner shall not release Broker or
GAIN from any liability or responsibility with respect to any representation or warranty or
covenant, or any indemnification obligation, or from any obligation or liability under this
Agreement accruing prior to termination of this Agreement, or affect any Customer forex transaction
on the books of GAIN.



15.0 CONFIDENTIAL NATURE OF DOCUMENTS AND OTHER INFORMATION




     15.1 Confidentiality. Neither GAIN nor Broker shall disclose the terms of this
Agreement or information obtained as a result hereof, except to governmental, regulatory or self ·
regulatory organizations, pursuant to judicial process or as otherwise required by law, or to
authorized employees. Any other publication or disclosure of the terms of this Agreement may be
made only with the prior written consent of the other party. Broker and GAIN shall each maintain
the confidentiality of documents and information received from the other party pursuant to this
Agreement. Each party acknowledges that the transactions and
activities contemplated hereunder
may involve access to each other’s proprietary technology, trading and other systems, and that
techniques, algorithms and processes contained in such systems constitute trade secrets, and each
party shall exercise reasonable care to protect the other’s interest in such trade secrets. Each
party agrees to make the proprietary nature of such systems known to those of its consultants,
staff, agents or clients who may reasonably be expected to come into contact with such systems.
Each party agrees that any breach of this confidentiality provision may result in its being liable
for damages as provided by law.



     15.2 Injunctive Relief. In the event of a breach or threatened breach of any of the
provisions of this Agreement by either party or any employee or representative of either party, for
which payment of damages would not be an adequate remedy (in whole or in part), the other party
shall be entitled to seek preliminary and permanent injunctive relief to enforce the provisions
hereof. In addition, each party acknowledges that a breach of the
tennis regarding confidentiality
of information would cause irreparable and incalculable damage to the party that owns such
confidential information. Nothing herein shall preclude the parties from pursuing any action or
other remedy for any breach or threatened breach of this Agreement, all of which shall be
cumulative.



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16.0 ACTION AGAINST CUSTOMERS BY GAIN




     GAIN may, in its sole discretion, upon notice to Broker, institute and prosecute in its name
any action or proceeding against any Customer in relation to any controversy or claim arising out
of GAIN’s agreements and transactions with such Customer provided that GAIN has a good faith claim
that has been rejected by the Customer, and Broker, after receiving reasonably detailed notice from
GAIN, has unreasonably refused to pursue the claim against such Customer. Nothing contained in this
Agreement shall be deemed either (a) to require GAIN to institute or prosecute such an action or
proceeding, or (b) to impair or prejudice its right to do so, should it so eject, nor shall the
institution or prosecution of any such action or proceeding relieve Broker of any liability or
responsibility which Broker would otherwise have had under this Agreement. Broker assigns to GAIN
its rights against its Customer as necessary to effectuate the provisions of this paragraph.



17.0 NOTICES



Except as otherwise provided in this Agreement, all notices required to be given
under this .Agreement shall be in writing, and shall be effective upon receipt as provided herein.
Any such written notice shall be deemed received upon the earlier of: (a) actual receipt by the
other party; or (b) the close of business on: (i) the date of transmission if sent by facsimile or
same day courier, (ii) on the business day after the date sent, if sent by overnight courier, or
(iii) the fifth business day after post-marked, if sent by first-class mail, postage prepaid. For
the purposes of delivery of any notice hereunder, the address and facsimile number of GAIN and
Broker, respectively, shall be as set forth below. Either party may change its address or facsimile
number for notices by giving written notice of the new address or number to the other party.




	 	 	 
	Broker:

	 	TradeStation Securities, Inc.
	 

	 	8050 SW 10th St., Suite 2000
	 

	 	Plantation, FL 33324
	 

	 	Fax No.: (954) 652-7019 and (954) 652-5701 and (954) 652-5021
	 
	 	 
	 

	 	Attn: Joseph Nikolson and Marc J. Stone
	 
	 	 
	GAIN:

	 	GAIN Capital Group, Inc.
	 

	 	35 Technology Drive
	 

	 	Warren, NJ 07059
	 

	 	Fax No.: (908) 731-0701
	 

	 	Attn: Glenn Stevens and Mark Galant






18.0 GENERAL PROVISIONS




     18.1 Successors and Assigns. This Agreement shall be binding upon and shall inure to
the benefit of the parties and their respective successors and assigns. No assignment of this
Agreement or any rights hereunder by Broker or GAIN shall be effective unless the other’s



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written
consent shall be first obtained, which shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing, and except as required by applicable Rules, no consent shall be
required for any assignment in connection with a direct or indirect sale or transfer of the equity
interests in, or assets of, a party. Each party may assign this Agreement to any of its affiliates
without consent being required.




     18.2 Severability. If any provision of this Agreement shall be held to be invalid or
unenforceable, the validity or enforceability of the remaining provisions and conditions shall not
be affected thereby.



     18.3 Counterparts. This Agreement may be executed and delivered via facsimile and in
our or more counterparts, all of which taken together shall constitute a single agreement, and
shall be as legally binding as ink signatures delivered in person.



     18.4 Entire Agreement Amendments and Duties Not Specifically Enumerated Herein. This
Agreement represents the entire agreement between the parties with respect to the subject matter
herein contained and all prior discussions, agreements and promises, written or oral, are herein
merged. This Agreement may not be changed orally, but only by an agreement in writing signed by the
parties.



     18.5 Captions. Captions herein are for convenience only and are not of substantive
Effect.



     18.6 Applicable Law. This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York, without giving effect to its principles of
conflicts of laws. The parties agree to submit any dispute arising out of this Agreement to the
jurisdiction of, and hereby consent to jurisdiction and venue in, any state or federal court in
Broward County, Florida. Each party waives any objection to venue or jurisdiction that it may have
pursuant to the doctrine of forum non conveniens.



     18.7 Construction of Agreement. Neither this Agreement nor the performance of the
services hereunder shall be considered to create a joint venture or partnership between GAIN and
Broker or between Broker and other brokers for whom GAIN may perform the same or similar services.



     18.8 Non-Exclusivity of Remedies. The enumeration herein of specific remedies shall
not be exclusive of any other remedies. Any delay or failure by a party to this Agreement to
exercise any right, power, remedy, or privilege herein contained, or now or hereafter existing
under any applicable Rules, shall not be construed to be a waiver of such light, power, remedy, or
privilege. No single, partial, or other exercise of any such light, power, remedy, or privilege
shall preclude the further exercise thereof or the exercise of any other right, power, remedy, or
privilege.



     18.9 Broker’s Customers. Each brokerage client account introduced or transferred or
cleared by Broker to or through GAIN or for which Broker provides commodities, futures, options,
forex or securities brokerage services of any kind (as the case may be, a “Broker



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Customer”), shall
be treated by GAIN as confidential and proprietary information of Broker, and GAIN shall not
disclose or use any such information, including names or contact information of any Broker
Customers, except as required by Rules (GAIN hereby specifically acknowledging that all of such
information constitutes trade secrets of Broker). In addition, GAIN covenants to Broker that GAIN
shall not, and shall not permit any of its affiliates (GAIN and its affiliates are collectively
referred to as “GAIN Group”), under any circumstances, to solicit or accept commodities, futures,
options, forex or securities brokerage business of any kind from any Broker Customers for a period
commencing the date of the Agreement and ending two years following termination of the Agreement
(regardless of the reason for termination). In no event, however, shall any member of GAIN Group
ever, at any time during or after the Agreement, directly or actively solicit the business of any
Broker Customer.




     18.10 Relationship Manager. GAIN shall provide to Broker, at no additional fee, cost
or expense, priority service, support, assistance and treatment in all material respects to help
ensure that the business relationship between GAIN and Broker (as same may evolve to omnibus
clearing status as contemplated by this Agreement), and to help ensure that the brokerage and
clearing operations that this Agreement seeks to produce, are as high-quality and efficient as
reasonably possible.


IN WITNESS WHEREOF, the parties have executed and delivered this Agreement by their
respectively duly authorized officers on the date first above written.




	 	 	 	 	 
	 	GAIN CAPITAL GROUP, INC.

 	 
	 	By:  	/s/ Glenn Stevens
	 
	 	Glenn Stevens, Managing Director 	 
	 	 	 	 
	 
	 	TRADESTATION SECURITIES, INC.
 	 
	 
	 	By:  	/s/
Marc Stone	 
	 	Marc J. Stone, Vice President 	 
	 	 	 	 



15









 






	 	 	 	 	 



Exhibit A to Forex Introducing Broker Agreement between GAIN Capital Group, Inc.

(“GAIN”) and TradeStation Securities, Inc. (“TradeStation”)




1. ***




2. ***




3. ***




4***




5. ***




	 	 	 	 	 
	 	Agreed to and Accepted:





GAIN CAPITAL GROUP, INC.

 	 
	 	By:  	/s/ Glenn Stevens	 
	 	Glenn Stevens, Managing Director 	 
	 	 	 	 
	 
	 	TRADESTATION SECURITIES, INC.
 	 
	 	By:  	/s/ Marc Stone	 
	 	Marc J. Stone, Vice President 	 
	 	 	 	 



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Exhibit A-1




Currency Pairs and Crosses




***





17