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Enron Mail |
A marked version of the newest version of the posting agreement against the
8/02/00 version is attached, for what it is worth. Travis McCullough Enron North America Corp. 1400 Smith Street EB 3817 Houston Texas 77002 Phone: (713) 853-1575 Fax: (713) 646-3490 ----- Forwarded by Travis McCullough/HOU/ECT on 08/21/2000 06:11 PM ----- Travis McCullough 08/21/2000 06:01 PM To: juman@espeed.com, smerkel@espeed.com, ragoldberg@swidlaw.com, ygoldfeder@swidlaw.com, eksasson@swidlaw.com, fvaracchi@espeed.com, hwaizer@cantor.com, afried@cantor.com cc: Andy Zipper/Corp/Enron@Enron, James Grace/Corp/Enron@ENRON, tstockbridge@velaw.com, mtelle@velaw.com, abeck@velaw.com, Mark Taylor/HOU/ECT@ECT Subject: Revised eSpeed Posting Agreement Attached is a revised draft of the Price Posting Agreement for your review. Because text has been rearranged and several provisions have been substantially reworded, the version of this agreement marked against the prior version is not particularly helpful, but I am happy to provide one if you wish. Please note that I am the only one on the Enron working group that has seen this revised draft; it therefore remains subject to comments by the other members of the team. Instead of providing a redline, I thought it would be helpful to review the most substantive changes in this e-mail. Please feel free to give me a call with any comments or questions. 1. As I have discussed with Stephen, you should not assume that we have rejected any of your comments if they did not appear in the attached version. Please contact me to discuss, or resend, any comments that you believe that we accepted but that are not reflected in this document. 2. Several new defined terms have been added. Several definitions were revised to reflect that eSpeed will be posting prices to a platform operated by a separate legal entity that eSpeed will not necessarily control. 3. The defined terms "Sponsor Material Adverse Effect", "Sponsor Regulatory Event", and "Sponsor Technological Failure" have been renamed "eSpeed ..." instead of "Sponsor ..." 4. Sections 3(a) and (b) have been slightly reworded to reflect the multiple platform concept. Section 3© was moved from Section 5. The standards for a party's right to suspend have been revised slightly. Also, Section 4(d) includes a right by Enron to suspend prices specifically in the event of mapping errors; this provision also relates to the termination right in Section 13 with respect to mapping errors. 5. Section 4 has been rewritten to reflect the multiple platforms. 6. Section 5(b) has been revised to reflect that the parties should develop a set of ground rules for operating and maintaining the Interfaces that will govern the parties once they commence operations. 7. Section 6 has not been changed in any significant manner, except for Section 6(d) with respect to commissions 8. Section 7 has been moved (it was previously Section 9) and reflects our concerns that the means by which contracts are entered into with Enron are clearly disclosed to Participants. 9. The parity section has been revised as we discussed -- essentially, Enron shall use "commercially reasonable efforts to ensure parity" 10. The reps and warranties and covenants have not been substantively revised, but separate reps, warranties and covenants are made by each party (instead of including both parties reps/warranties/covenants in the same provision). 11. Section 12 is new. We felt that the Agreement did not clearly set forth what would have to be done before the parties could start posting prices. 12. We have revised Section 13(a)(i) and (iii) and 13(b)(i) and (iii) (termination events as we discussed); 13(a)(ii) and (b)(ii) are new. 13. Section 14 has been substantially revised, but is still confusing, However, the idea is that the agreement include a single provision governing confidentiality and that certain information that Enron is particularly sensitive about will be kept confidential, while other information becomes eSpeed's property at some point to do with as it wishes. Any thoughts about clarifying Section 14 would be appreciated. 14. The Indemnity has been revised to include a separate section for each party ((a) and (b)), but we do not believe that the substance of the prior provision was changed. 15. We need to give further thought to Section 16 and the provisions that eSpeed provided to us (Sections 15(e), (f) and (g) in the prior draft). While I have discussed this with Stephen and do not object to the point that those provisions is trying to make, the language is a bit broad in places and we need to spend more time with it to make sure that it does not conflict with other provisions of the Agreement. 16. I have tried to reserve the right for the parties to obtain injunctive relief, but this section needs expansion -- and I think Stephen had some specific thoughts about what would not be subject to arbitration. 17. The Enron Covenant added as Exhibit H is not perfect, but it is essentially what we had contemplated providing. The Schedule A listing Specified Products is also attached. Therefore, the only Exhibit or Schedule missing is Exhibit I, which is the commission structure. Please feel free to call or send a message if you have any comments or questions regarding the atttached. Travis McCullough Enron North America Corp. 1400 Smith Street EB 3817 Houston Texas 77002 Phone: (713) 853-1575 Fax: (713) 646-3490
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