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 wil1not 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





2 









 












	 	 	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 elec1ronic
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
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




3 








 





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
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,



4 









 




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
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’ tec1mology 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




5 









 




(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
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. The initial margin for Customer accounts shall be ***
and
a Customer account that falls below *** of initial margin shall be automatically frozen and
liquidated by GAIN using its auto-liquidation technology to the extent necessary to reestablish
the maintenance margin requirement or otherwise eliminate or reduce debit balances. Prior to a





6 









 







Customer account falling below the *** maintenance level, Broker may, in its sole and absolute
discretion, impose such margin calls and/or requirements and/or limitations on account trading as
it deems appropriate.. 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
e:ither 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.




     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 *** over the announced prime rate of JPMorgan Chase.


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




7 









 




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,
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



8 









 




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 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 ham1less 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



9 









 




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
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
Cus1Iomers”). 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






10 









 







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 thirty days prior notice. If Broker terminates this Agreement
pursuant to this Section 14.1, GAIN shall have the right to limit the number of new accounts it
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 December 31, 2005, Broker shall pay to GAIN a
fee of $250,000; (b) if the effective date of termination is on or before December 31, 2006,
Broker shall pay to GAIN a fee of $125,000; (c) if the effective date of termination is on or
before August 31, 2007, Broker shall pay to GAIN a fee of $62,500; and, (d) if the effective date
of termination is on or after September 1,2007, but prior to March 1, 2008, Broker shall pay to
GAIN a fee of $31,250; 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 March 31, 2008.



     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 othe1’Wise
becomes unable to engage in the forex business or any part of it by operation of law or as a result



11 









 




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
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
herelll1der 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.



12 









 




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 tenns regsLJ:ding
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.


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






13 









 






	 	 	 

	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
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 oue 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




14 









 





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
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 shal1 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:	 	 	 	 
	 

	 	 	 	 

	 	 
	 	 	Glenn Stevens, Managing Director	 	 
	 
	 	 	 	 	 	 
	 	 	TRADESTATION SECURITIES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 	 	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. GAIN shall offer via Compatibility and Orally-transmitted Trades the currency pairs set forth in
Exhibit A-I at the spreads (Pips) set forth below; such spreads may be amended from time to time
only as mutually agreed in writing by GAIN and TradeStation by an amendment to this Exhibit A,
provided that GAIN may, in its reasonable discretion consistent with industry practices, make
temporary spread adjustments for risk-management purposes in response to market volatility.
Subject to that proviso, the initial spread for each of the pairs on the attached Exhibit A-I shall
be
4 pips, except for EURIUSD and JPY/USD, each of which shall be 3 pips.



2. For each lot, per side, of each deal, GAIN shall pay TradeStation (a) for all Customers other
than
Referred Forex Customers, $8.50 ($17.00 round-trip, per lot, per deal), and (b) for
Referred Forex
Customers, (i) from account opening through the end of the ninth full calendar month
following account opening, $5.00 ($10.00 round trip, per lot, per deal), (ii) from the end of such
ninth month through the eighteenth full calendar month following account opening, $6.75 ($13.50
round trip, per lot, per deal), and (iii) for all periods thereafter, $8.50 ($17.00 round trip, per
lot, per deal). Payments shall be made on a semi-monthly basis by wire transfer to TradeStation’s
designated bank account at no cost or expense to TradeStation



3. With respect to the cost of carry/interest/premium GAIN charges for open positions/roUs, GAIN
shall, after deducting therefrom the amount, if any, of direct, out-of-pocket expenses paid by GAIN
(i.e., what GAIN pays the bank) to enable or maintain such open position/roll, 75% of the cost of
carry/interest/premium, which shall be remitted to TradeStation together with the
payments described in Section 2 above.



4. TradeStation will receive and be paid by GAIN 80% of the interest income generated by or from
Customers’ accounts, including interest income derived from interest paid to GAIN for Customers’
credit balances, together with the payments described in Section 2 above.



5. Any and all commissions and/or fees TradeStation charges Customer for forex transactions or any
related forex products or services (and TradeStation may charge such commissions and/or fees, or
not charge them, as TradeStation solely in its discretion determines) shall belong to, and be the
property of, solely TradeStation. Any such amounts shall be properly debited by GAIN to the
Customers’ accounts (provided that GAIN has received sufficient prior notice thereof from
TradeStation) and 100% thereof shall be remitted to TradeStation together with the payments
described in Section 2 above.




	 	 	 	 	 	 	 

	 	 	Agreed to and Accepted:	 	 
	 
	 	 	 	 	 	 
	 	 	GAIN CAPITAL GROUP, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 	 	Glenn Stevens, Managing Director	 	 
	 
	 	 	 	 	 	 
	 	 	TRADESTATION SECURITIES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 	 	Marc J. Stone, Vice President	 	 






16 









 





Exhibit A-1




Currency Pairs and Crosses



AUD/JPY

AUD/NZD

AUD/USD

CHF/JPY

EUR/AUD

EUR/CHF

EUR/GBP

EUR/JPY

EUR/SEK

EUR/USD

GBP/CHF

GBP/JPY

GBP/USD

NZD/USD

USD/CAD

USD/CHF

USD/JPY

USD/MXN

USD/NOK

USD/SEK

USD/ZAR





17