Exhibit 10.15
SHAREHOLDERS AGREEMENT
THIS SHAREHOLDERS AGREEMENT (this "AGREEMENT") is made as of March 28, 2001, by
and among SOFTBANK FINANCE CORPORATION ("SB FINANCE"), a Japanese corporation,
InsWeb Corporation ("INSWEB"), a Delaware corporation, E-LOAN, Inc. ("E-LOAN"),
a Delaware corporation, and Xxxxx & XxXxxxxx Risk Capital Holdings, Ltd.
("M&M"), a Delaware corporation, (SB Finance, INSWEB, E-LOAN and M&M are
collectively referred to as the "PARTIES," and each a "PARTY") to define their
respective rights and obligations with respect to the operation and management
of a newly established Japanese corporation (the "COMPANY") and other terms and
conditions in connection therewith.
W I T N E S S E T H:
WHEREAS, SB Finance is a leading provider of financing and information
services relating to the execution of financial transactions on the internet in
Japan and worldwide;
WHEREAS, INSWEB is an electronics commerce company that serves consumers
and the insurance industry by providing a comprehensive internet insurance
marketplace in which, by accessing an online site, consumers identify
appropriate insurance providers and insurance companies can identify interested
customers;
WHEREAS, E-LOAN is an electronics commerce company serving consumers and
the home loan industry through a comprehensive internet loan marketplace in
which, by accessing an online site, consumers can identify appropriate loan
providers and lenders can identify interested consumers;
WHEREAS, M&M is a holding company affiliated with Xxxxx Inc., an
insurance broker;
WHEREAS, SB Finance, INSWEB, M&M and Softbank Global Selection
Fund-Softbank Bond & Private Equity Fund ("SBAM FUND") own shares in INSWEB
Japan K.K. ("INSWEB JAPAN"), a Japanese joint venture company, in a ratio of
fifty-seven percent (57%), twenty-five percent (25%), fifteen percent (15%) and
three percent (3%), respectively;
WHEREAS, SB Finance and E-LOAN own shares in E-LOAN JAPAN Co., Ltd.
("E-LOAN JAPAN"), a Japanese joint venture company, in a ratio of sixty
percent (60%) and forty percent (40%), respectively;
WHEREAS, SB Finance wholly owns GOODLOAN Co., Ltd. ("GOODLOAN"), a
Japanese corporation;
WHEREAS, the Parties desire to integrate the business of the
Subsidiaries (as defined below) by incorporating the Company which will wholly
own each Subsidiary and to make efforts to list the Company as a publicly-traded
company by March 2002 on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the Parties hereby agree as follows:
Exhibit 10.15
ARTICLE I
DEFINITIONS
1.1 DEFINED TERMS. As used herein the following terms shall have the
following meanings:
"AFFILIATES" of any Person shall mean any other Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such Person. "CONTROL" (including the terms controlling,
controlled by or under common control with), for purposes of this definition,
shall mean the direct or indirect power to direct or cause the direction of the
management and policies of a Person, whether through ownership of voting
securities, by contract or otherwise.
"ANNUAL PLAN" means a business operations plan detailing the relevant
corporation's goals and procedures for personnel, technical, financial,
administrative, marketing, and other significant activities for such
corporation's next succeeding fiscal year, as approved each year and revised
from time to time by the Board of Directors of such corporation.
"AOI" means the Articles of Incorporation of the relevant
corporation.
"BOARD" shall mean the board of directors of the Company.
"BUSINESS DAY" means a day on which commercial banks in Japan are
generally open to conduct their regular banking business.
"COMMERCIAL CODE" shall mean the Commercial Code of Japan, as amended
and in effect from time to time.
"COMPANY INTEREST" means the shareholding percentage interest as to
the Company represented by the Securities of the Company then held by a Person
divided by the total number of the then outstanding Securities of the Company
(on an as-converted to Share basis).
"CONFIDENTIAL INFORMATION" shall mean all information in any form
disclosed by any Party to any of the other Parties in connection with this
Agreement or the business of the Company (including during negotiations prior to
the date of this Agreement) or the exercise of any right hereunder, other than
information which: (i) prior to the disclosure from the disclosing Party, was
already in the receiving Party's possession; (ii) prior to the disclosure from
the disclosing Party, was already in the public domain; (iii) after the
disclosure from the disclosing Party, has become publicly known through no fault
of the receiving Party; (iv) is lawfully disclosed to the receiving Party by a
third party who assumes no confidentiality obligation; or (v) was independently
developed by the receiving Party.
"E-LOAN JAPAN CONSULTING SERVICES AGREEMENT" means the Consulting
Services Agreement by and between SOFTBANK CORP. ("SOFTBANK") and E-LOAN JAPAN
dated May 25, 1999, as amended from time to time.
"E-LOAN JAPAN JOINT VENTURE AGREEMENT" shall mean the Joint Venture
Agreement by and between SOFTBANK (which transferred its shares of E-LOAN JAPAN
and its contractual
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Exhibit 10.15
position under the said joint venture agreement to SB Finance) and E-LOAN dated
as of March 31, 1999, as amended by the letter agreement regarding the First
Amendment to Joint Venture Agreement from E-LOAN to SOFTBANK dated as of May 14,
1999.
"E-LOAN LICENSE AGREEMENT" means the License and Services Agreement
by and between E-LOAN and E-LOAN JAPAN dated May 18, 1999, as amended from time
to time.
"INSWEB JAPAN CONSULTING SERVICES AGREEMENT" means the Consulting
Services Agreement by and between SOFTBANK and INSWEB JAPAN dated December 30,
1998, as amended from time to time.
"INSWEB JAPAN JOINT VENTURE AGREEMENT" shall mean the Joint Venture
Agreement by and between SOFTBANK (which transferred its shares of INSWEB JAPAN
and its contractual position under the said joint venture agreement to SB
Finance) and INSWEB dated as of December 15, 1998, as amended by Amendment No.1
to Joint Venture Agreement by and among SB Finance, INSWEB, INSWEB JAPAN and M&M
dated as of May 14, 1999.
"INSWEB LICENSE AGREEMENT" means the Inter-Company License Agreement
by and between INSWEB and INSWEB JAPAN dated December 30, 1998, as amended from
time to time.
"J&H CONSULTING SERVICES AGREEMENT" means the Consulting Services
Agreement by and between J&H Xxxxx & XxXxxxxx Japan, Ltd. ("J&H") and INSWEB
JAPAN dated May 14, 1999, as amended from time to time.
"PERSON" shall mean any individual, sole proprietorship, partnership,
limited liability company, joint venture, trust, unincorporated organization,
association, corporation, institution, public benefit corporation or other
entity.
"SECURITIES" means all outstanding Shares (as defined below), and any
other equity securities exercisable for or convertible into Shares.
"SHARES" shall mean every class of outstanding shares of the relevant
corporation.
"SPECIAL EXCEPTIONS LAW" shall mean the Law pertaining to Special
Exceptions to the Commercial Code concerning Auditors of Companies.
"SUBSIDIARY" shall mean each of INSWEB JAPAN, E-LOAN JAPAN and
GOODLOAN individually, and "Subsidiaries" shall mean INSWEB JAPAN, E-LOAN JAPAN
and GOODLOAN collectively.
" "YEN" and "(Y)" shall mean the legal currency of Japan.
1.2 INTERPRETATION. As used in this Agreement, the singular shall include the
plural, the plural shall include singular and the use of the masculine, feminine
or neuter gender shall include all genders, as the context may require. The
Exhibits to this Agreement shall be construed to be an integral part of this
Agreement. The headings to Articles, Sections and Subsections of this Agreement
are to facilitate reference only, do not form a part of this Agreement and shall
not in any way affect the interpretation hereof.
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Exhibit 10.15
ARTICLE II
PURPOSES OF THE COMPANY
2.1 PURPOSE OF THE COMPANY. The Parties hereby associate with each other in
order to establish and manage the Company, the purpose of which shall be to
provide online financial marketplaces and financial services related to lending
and insurance through the Subsidiaries, and to make efforts to list the Company
as a publicly-traded company by March 2002, provided however, that the Parties
give no assurances that such listing will occur. All operations of the Company
shall be conducted in accordance with this Agreement and any other agreements
entered into in connection with this Agreement, and in compliance with
applicable Japanese laws and regulations and the Company's AOI.
ARTICLE III
FORMATION
3.1 LEGAL STRUCTURE, LOCATION AND NAME OF THE COMPANY. The Company shall be a
joint-stock corporation (KABUSHIKI-KAISHA) incorporated through stock transfer
(KABUSHIKI-XXXX) (the "STOCK TRANSFER") pursuant to Article 364 of the
Commercial Code effective as of March 28, 2001 or such other date as agreed upon
by the Parties (the "CLOSING DATE"). The Stock Transfer shall be made among the
Subsidiaries, and the newly incorporated Company shall acquire and own all the
Shares of the Subsidiaries by effect of the Stock Transfer. The head office of
the Company shall be located in Tokyo, Japan. The official name of the Company
shall be FINANCE ALL KABUSHIKI KAISHA in Japanese and Finance All Corporation in
English.
3.2 INCORPORATION PROCEDURE. Each Party shall take those steps as are necessary
or desirable for the incorporation of the Company. The Parties understand that
each Subsidiary shall bear any costs and expenses for actions necessary or
appropriate for the Subsidiary to implement the Stock Transfer (other than those
which may be borne by the Company under the Commercial Code). The Subsidiaries
shall reimburse SB Finance for any costs and expenses paid by SB Finance on
their behalf, provided that, where such costs and expenses are paid on behalf of
two or more Subsidiaries, such Subsidiaries shall bear such costs and expenses
in proportion to their relative stock transfer ratio as set forth in Exhibit
4.2.
3.3 ARTICLES OF INCORPORATION. At the incorporation of the Company,
the Company's AOI shall be substantially in the form of EXHIBIT 3.3, attached
hereto.
ARTICLE IV
CAPITAL STRUCTURE
4.1 INITIAL PAID-IN CAPITAL. Subject to requirements under the Commercial Code,
the initial paid-in capital of the Company shall be one billion one hundred
twelve million Yen ((Y)1,112,000,000).
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Exhibit 10.15
4.2 ALLOCATION. The initial Shares of the Company shall be voting shares of
common stock with no par value, and issued to each Party and SBAM FUND in
exchange for their Shares of the Subsidiaries in accordance with the stock
transfer ratio set forth in EXHIBIT 4.2, attached hereto.
ARTICLE V
CLOSING CONDITIONS
5.1 CONDITIONS PRECEDENT. Each Party's obligation to close the Stock
Transfer shall be subject to the satisfaction of the following conditions:
5.1.1 DUE PERFORMANCE. Each Party shall have duly performed all of
its material obligations hereunder which are required to be
performed by or prior to the Closing Date.
5.1.2 REPRESENTATIONS AND WARRANTIES. All representations and
warranties of each Party contained in this Agreement shall be true
and correct in all material respects as of the Closing Date.
5.1.3 NO MATERIAL CHANGE. No material change has occurred in the
Japanese laws or regulations or markets which may reasonably be
considered to have a material and adverse effect on the likely
prospects for success of the business of the Company, as contemplated
by this Agreement.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1 REPRESENTATIONS AND WARRANTIES. Each of the Parties represents and
warrants to each of the other Parties as follows:
6.1.1 ORGANIZATION AND STANDING. Each Party is a corporation duly
incorporated, organized and validly existing under the laws of its
respective jurisdiction of incorporation as set forth above and has
all requisite corporate power and authority to execute and deliver
this Agreement, to consummate the transactions contemplated hereby
and perform its obligations hereunder.
6.1.2 AUTHORIZATION. All corporate and other proceedings required to
be taken on the part of each Party, including, without limitation,
all action required to be taken by the directors or shareholders of
each Party to authorize such Party to enter into and carry out this
Agreement and to cause its Subsidiary to carry out the Stock Transfer
hereunder, have been, or prior to the Closing Date shall be, duly and
properly taken. This Agreement has been duly executed and delivered
by each Party and is the valid and binding obligation of such Party
enforceable against it in accordance with its terms, except as
enforcement may be limited by legal principles limiting the right to
obtain specific performance or other legal remedies, or by
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Exhibit 10.15
applicable bankruptcy or insolvency laws and related decisions affecting
creditors' rights generally.
6.1.3 COMPLIANCE. The execution and delivery of this Agreement and
the consummation of the transactions contemplated herein shall not
result in a breach of any of the terms and conditions of, or
constitute a default under or violate any agreement, lease, license
or other undertaking to which each Party or any of its Affiliates is
bound, or violate any rule, regulation or order of any governmental
body.
6.1.4 SHARES OF SUBSIDIARIES. The Shares each Party owns of any
Subsidiary to be transferred in connection with the Stock Transfer
are validly issued, fully-paid and non assessable, and are free and
clear of all liens, encumbrances, restrictions and claims of any
kind.
ARTICLE VII
OPERATION AND MANAGEMENT OF THE COMPANY
7.1 OPERATION OF THE COMPANY. Each Party agrees to take all actions necessary to
ensure that the Company shall be operated in accordance with the terms and
conditions of this Agreement, including, but not limited to, to vote all Shares
of the Company held by it to effect the terms and conditions of this Agreement.
7.2 BOARD OF DIRECTORS. The Company shall be managed by the Board in accordance
with the terms and conditions of this Agreement and the applicable laws and
regulations of Japan. The Board shall be comprised of seven (7) directors, four
(4) of whom shall be appointed by SB Finance, one (1) by INSWEB, one (1) by
E-LOAN and one (1) by M&M. The Parties shall undertake any and all necessary
steps to effect the foregoing, including without limitation, holding a
shareholders' meeting of the Company and amending the Company's AOI, if
necessary.
7.3 REMOVAL AND REAPPOINTMENT OF DIRECTORS. Any director may be removed for
cause in accordance with the Commercial Code. In addition, each Party having the
right to appoint a director pursuant to Section 7.2 shall also have the right,
exercisable in its sole discretion, to remove such director at any time,
effective upon delivery of written notice to the Company, the director to be
removed and the other Parties. In the event of a vacancy in the office of a
director for any reason (including removal in accordance with the preceding
sentence), the vacancy may be filled by the Party that appointed the relevant
director at such Party's sole discretion.
7.4 BOARD MEETINGS. The President shall have the authority to convene Board
meetings, including the authority to specify the time and place of such
meetings. The Board shall meet at least once every three (3) months. Written
notice of all Board meetings shall be given to each director and statutory
auditor not less than five (5) Business Days in advance of each meeting;
provided, however, that such notice may be waived or the period of such notice
may be shortened for a particular Board meeting with the unanimous consent of
the directors and statutory auditors. Board meetings shall be conducted in
Japanese (with English interpretation, at the Company's expense if requested by
any Party). Proposals or reports brought before any Board meeting for
information or action (including, but not limited to, the Company's annual and
semi-annual financial statements) shall be prepared
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Exhibit 10.15
in Japanese (with English translation, if requested by any Party). The cost of
attending Board meetings with respect to any director shall be borne by the
Party appointing the director. Directors may participate by video conference
system and the Company shall bear all such costs and expenses in connection with
such participation via video conference system.
7.5 BOARD QUORUM AND RESOLUTIONS. A majority of the directors in offic
shall constitute a quorum for any Board meeting. Adoption of any resolution of
the Board shall require the affirmative vote of a majority of the directors
in office.
7.6 MANAGEMENT OF THE COMPANY. Notwithstanding any other provision of this
Agreement, in addition to approval by the Board, the prior approval of INSWEB
and E-LOAN (either in the form of written consent or voting by the director of
the Company nominated respectively by INSWEB and E-LOAN) shall be required to
cause or allow the Company to take any actions set forth in EXHIBIT 7.6,
attached hereto. Unless any notice of non-approval is given by INSWEB or E-LOAN
to the Company within ten (10) Business Days after its receipt of notice of the
Company's intent to take any of such actions, it shall be deemed that INSWEB or
E-LOAN, as the case may be, approved the action. If the shareholding ratio of
Shares of INSWEB becomes less than eight and 63/100 percent (8.63%), the
requirement of the first sentence of this Section 7.6 shall not be applicable
with respect to INSWEB. If the shareholding ratio of Shares of E-LOAN becomes
less than seven and 20/100 percent (7.20%), the requirement of the first
sentence of this Section 7.6 shall not be applicable with respect to E-LOAN.
7.7 REPRESENTATIVE DIRECTOR. The Company's day-to-day operations shall be
managed by the President of the Company, who shall be a Representative Director
nominated by SB Finance from among the directors of the Company. SB Finance
shall have the right, exercisable in its sole discretion, to remove and replace
the President at any time, effective upon the delivery of written notice to the
Company, the President and the other Parties. In the event of a vacancy in the
office of the President for any reason (including removal in accordance with the
preceding sentence), the vacancy shall be filled by SB Finance.
7.8 STATUTORY AUDITORS. The Company shall have at least (3) statutory auditors
(KANSA-YAKU), each of whom shall be appointed by SB Finance (one (1) of whom
shall serve on a full-time basis). A statutory auditor may be removed for cause
in accordance with the Commercial Code. SB Finance shall also have the right,
exercisable in its sole discretion, to remove such statutory auditor at any
time, effective upon delivery of written notice to the Company, the statutory
auditor to be removed and the other Parties. In the event of a vacancy in the
office of a statutory auditor for any reason (including removal in accordance
with the preceding sentence), the vacancy shall be filled by SB Finance.
7.9 SHAREHOLDERS' MEETING. The Company shall have at least one shareholders'
meeting each calendar year in accordance with the Commercial Code and the
Company's AOI. A notice of the convocation of each shareholders' meeting shall
be dispatched to each shareholder of the Company at least fourteen (14) calendar
days prior to the date of such meeting; provided, however, that such notice may
be waived or the period of such notice may be shortened for a particular
shareholders' meeting with the unanimous written consent of the shareholders of
the Company. Shareholders' meetings shall take place in Tokyo, Japan at such
time and place as is determined by the Board. Shareholders' meetings shall be
conducted in Japanese (with English interpretation if requested by any Party),
and minutes of such meetings shall be prepared by the Company in Japanese.
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Exhibit 10.15
7.10 ACCOUNTING.
7.10.1 ACCOUNTING PRINCIPLES. The Parties shall cause the Company
to adopt and follow Japan generally accepted accounting principles
("JAPAN GAAP"), consistently applied.
7.10.2 ACCESS TO BOOKS. The Company's books and records shall be kept
at its principal office. Each of the Parties shall have access to
such books and records and the right to examine, copy and audit the
same at all reasonable times.
7.10.3 AUDIT. The Company's accounts shall be audited or reviewed not
less frequently than annually by the Company's independent outside
auditor which shall be a certified public accountant selected by SB
Finance.
7.10.4 FINANCIAL STATEMENTS AND ACCOUNTING RECORDS. Financial
statements of the Company, including, without limitation, a balance
sheet, income statement, statement of cash flow and statement of
shareholders' equity, shall be submitted by the Company to SB
Finance, INSWEB, E-LOAN and M&M, (a) within sixty (60) days after the
end of the first six (6) months of each fiscal year for such six (6)
month period, and (b) within eighty (80) days after the end of each
fiscal year for such fiscal year. Each of the annual financial
statements shall be audited and certified by an internationally
recognized accounting firm (which shall act as an independent auditor
under the Special Exceptions Law) retained by the Company, selected
by SB Finance and approved by INSWEB, E-LOAN and M&M, which approval
shall not be unreasonably withheld. All financial statements shall be
prepared in accordance with Japan GAAP and in reasonable detail, and
shall contain such financial data as SB Finance, INSWEB, E-LOAN and
M&M may deem necessary in order to keep them advised of the Company's
financial status (although quarterly statements need not include
footnotes and may be subject to year-end adjustments). The Company
shall, at the request of INSWEB, E-LOAN or M&M (the "REQUESTING
PARTY"), provide the Requesting Party with such financial information
the Requesting Party may reasonably deem necessary for purposes of
complying with its periodic reporting obligations under U.S.
securities laws, and shall cooperate with the Requesting Party in
connection therewith, including cooperating with the Requesting
Party's accounting firm in preparing quarterly financial statements
and reconciling the Company's financial statements with U.S.
generally accepted accounting principles for such purposes requested
by the Requesting Party; provided that the Requesting Party (in
proportion to their shareholding ratios if the Requesting Party
includes two or more parties) shall bear the costs incurred by the
Company for the above procedures.
7.11 COMPLIANCE WITH LAWS. The Parties shall cooperate to cause the Company to
maintain its corporate existence and maintain all rights, licenses, approvals
and other permits necessary for its business in full force and effect and to
comply with all provisions of applicable laws.
ARTICLE VIII
OPERATION AND MANAGEMENT OF INSWEB JAPAN
8.1 BOARD OF DIRECTORS. The Board of Directors of INSWEB JAPAN shall be
comprised of five (5) directors, three (3) of whom shall be appointed
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Exhibit 10.15
by SB Finance, one (1) of whom shall be appointed by INSWEB, and one (1) of whom
shall be appointed by M&M. SB Finance, INSWEB and M&M shall undertake any and
all necessary steps to effect the foregoing, including without limitation,
holding a shareholders' meeting of INSWEB JAPAN and amending INSWEB JAPAN's AOI,
if necessary.
8.2 REMOVAL AND REAPPOINTMENT OF DIRECTORS. Any director of INSWEB JAPAN may be
removed for cause in accordance with the Commercial Code. In addition, SB
Finance, INSWEB and M&M respectively having the right to appoint a director
pursuant to Section 8.1 shall also have the right, exercisable in its sole
discretion, to remove such director at any time, effective upon delivery of
written notice to INSWEB JAPAN, the director to be removed and the other
shareholders of INSWEB JAPAN. In the event of a vacancy in the office of a
director of INSWEB JAPAN for any reason (including removal in accordance with
the preceding sentence), the vacancy may be filled by the Party that appointed
the relevant director at such Party's sole discretion.
8.3 BOARD MEETINGS. The President of INSWEB JAPAN shall have the authority to
convene Board meetings of INSWEB JAPAN, including the authority to specify the
time and place of such meetings. The Board of Directors of INSWEB JAPAN shall
meet at least once every three (3) months. Written notice of all Board meetings
shall be given to each director and statutory auditor of INSWEB JAPAN not less
than five (5) Business Days in advance of each meeting; provided, however, that
such notice may be waived or the period of such notice may be shortened for a
particular Board meeting of INSWEB JAPAN with the unanimous consent of the
directors and statutory auditors of INSWEB JAPAN. Board meetings of INSWEB JAPAN
shall be conducted in English or Japanese (with English interpretation if
requested by SB Finance, INSWEB or M&M, at INSWEB JAPAN's expense), and minutes
of such meetings shall be prepared by INSWEB JAPAN in Japanese and distributed
to each director without delay following each meeting. Proposal or reports
brought before any Board meeting of INSWEB JAPAN for information or action
(including, but not limited to, the INSWEB JAPAN's annual and semi-annual
financial statements) shall be prepared in Japanese (with English translation,
if requested by any SB Finance, INSWEB or M&M). The cost of attending Board
meetings of INSWEB JAPAN with respect to any director shall be borne by the
Party appointing the director. Directors may participate by video conference
system and INSWEB JAPAN shall bear all such costs and expenses in connection
with such participation via video conference system.
8.4 BOARD QUORUM AND RESOLUTIONS. A majority of the directors of INSWEB JAPAN in
office shall constitute a quorum for any Board meeting of INSWEB JAPAN. Adoption
of any resolution of the Board of Directors of INSWEB JAPAN shall require the
affirmative vote of a majority of the directors of INSWEB JAPAN in office.
8.5 MANAGEMENT OF INSWEB JAPAN. Notwithstanding any other provision of this
Agreement, in addition to approval by the Board of INSWEB JAPAN, (a) the prior
approval of INSWEB (either in the form of written consent or voting by the
director of INSWEB JAPAN nominated by INSWEB) shall be required to cause or
allow INSWEB JAPAN to take any actions set forth in EXHIBIT 8.5(A), attached
hereto, and (b) the prior approval of M&M (either in the form of written consent
or voting by the director of INSWEB JAPAN nominated by M&M shall be required to
cause or allow INSWEB JAPAN to take any actions set forth in EXHIBIT 8.5(B),
attached hereto. Unless any notice of non-approval is given by INSWEB or M&M to
INSWEB JAPAN within ten (10) Business Days after its receipt of notice of INSWEB
JAPAN's intent to take any of such actions, it shall be deemed that INSWEB or
M&M, as the case may be, approved the action.
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Exhibit 10.15
8.6 REPRESENTATIVE DIRECTOR. INSWEB JAPAN's day-to-day operations shall be
managed by the President of INSWEB JAPAN, who shall be a Representative Director
nominated by SB Finance from among the directors of INSWEB JAPAN. SB Finance
shall have the right, exercisable in its sole discretion, to remove and replace
the President at any time, effective upon the delivery of written notice to
INSWEB JAPAN, the President and the other shareholders of INSWEB JAPAN. In the
event of a vacancy in the office of the President for any reason (including
removal in accordance with the preceding sentence), the vacancy shall be filled
by SB Finance.
8.7 STATUTORY AUDITORS. INSWEB JAPAN shall have at least three (3) statutory
auditors (KANSA-YAKU), each of whom shall be appointed by SB Finance (one (1) of
whom shall serve on a full-time basis). A statutory auditor may be removed for
cause in accordance with the Commercial Code. SB Finance shall also have the
right, exercisable in its sole discretion, to remove such statutory auditor at
any time, effective upon delivery of written notice to INSWEB JAPAN, the
statutory auditor to be removed and the other shareholders of INSWEB JAPAN. In
the event of a vacancy in the office of a statutory auditor for any reason
(including removal in accordance with the preceding sentence), the vacancy shall
be filled by SB Finance.
8.8 ANNUAL PLAN.
(a) The President of INSWEB JAPAN shall prepare, and the Board of
Directors of INSWEB JAPAN shall approve, an Annual Plan of INSWEB JAPAN with
respect to each fiscal year of INSWEB JAPAN no later than sixty (60) days prior
to the commencement of the fiscal year. The Board of Directors of INSWEB JAPAN
shall cause INSWEB JAPAN to conduct its operations in accordance with the Annual
Plan of INSWEB JAPAN, which shall set forth in reasonable detail certain
financial performance goals, including, without limitation, with respect to
revenues, profits, return on net assets and return on equity for the period
subject thereto.
(b) At least thirty (30) days prior to the approval of any Annual
Plan by the Board of Directors of INSWEB JAPAN, INSWEB JAPAN shall forward a
draft of the proposed Annual Plan to INSWEB for its review. INSWEB shall have
the right, within twenty (20) days thereafter to identify, by written notice to
INSWEB JAPAN and SB Finance, any portion of the proposed Annual Plan that it
reasonably and in good faith believes (i) will involve activities outside the
scope of the business of INSWEB JAPAN as described in its AOI, (ii) will require
a material cash expenditure or a material commitment of personnel by INSWEB
(other than in accordance with an existing agreement between INSWEB JAPAN and
INSWEB), (iii) will result in a fundamental difference between INSWEB's basic
business model and the business model of INSWEB JAPAN, or (iv) would reasonably
be expected to have a material adverse effect on INSWEB's business or operations
in the United States. On providing any such notice, INSWEB shall explain the
basis for its belief in reasonable detail and shall thereafter meet with INSWEB
JAPAN to address its concerns, but pending an agreement with INSWEB, the Board
of Directors of INSWEB JAPAN shall not approve, and INSWEB JAPAN shall not
implement, the portions of the Annual Plan giving rise to INSWEB's concerns.
8.9 FINANCIAL STATEMENTS AND ACCOUNTING RECORDS. Financial statements of INSWEB
JAPAN, including, without limitation, a balance sheet, income statement,
statement of cash flows and statement of shareholders' equity, shall be
submitted by INSWEB JAPAN to SB Finance, INSWEB and M&M, (a) within sixty (60)
days after the end of the first six (6) months of each fiscal year for such six
(6) month period, and (b) within eighty (80) days after the end of each fiscal
year for such
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Exhibit 10.15
year. Each of the annual financial statements shall be audited and certified by
an internationally recognized accounting firm (which shall act as an independent
auditor under the Special Exceptions Law) retained by INSWEB JAPAN, selected by
SB Finance and approved by INSWEB, which approval shall not be unreasonably
withheld. All financial statements shall be prepared in accordance with Japan
GAAP and in reasonable detail, and shall contain such financial data as SB
Finance and INSWEB may deem necessary in order to keep them advised of the
INSWEB JAPAN's financial status (although quarterly statements need not include
footnotes and may be subject to year-end adjustments).
8.10 RIGHT OF INSPECTION. During the regular office hours of INSWEB JAPAN, and
upon reasonable notice to INSWEB JAPAN, SB Finance, INSWEB and M&M shall have
(a) full access to all properties, books of account, and records of INSWEB
JAPAN, and (b) the right to make copies from such books and records at its own
expense. Any information obtained by SB Finance, INSWEB and M&M through exercise
of rights granted under this Section 8.10 shall, to the extent constituting
Confidential Information, be subject to the confidentiality provisions set forth
in Article XII.
8.11 TRANSLATIONS. INSWEB JAPAN shall prepare English translations of any
minutes of any Board of Directors or shareholder meetings of INSWEB JAPAN
initially prepared in Japanese. Such translations shall be prepared by either of
INSWEB JAPAN's own staff, or an outside translation service, at INSWEB JAPAN's
election and expense. If there is any discrepancy between the Japanese version
of any minutes and the English translation thereof, the Japanese version shall
control.
ARTICLE IX
OPERATION AND MANAGEMENT OF E-LOAN JAPAN
9.1 BOARD OF DIRECTORS. The Board of Directors of E-LOAN JAPAN shall be
comprised of six (6) directors, four (4) of whom shall be appointed by SB
Finance and two (2) of whom shall be appointed by E-LOAN. SB Finance and E-LOAN
shall undertake any and all necessary steps to effect the foregoing, including
without limitation, holding a shareholders' meeting of E-LOAN JAPAN and amending
E-LOAN JAPAN's AOI, if necessary.
9.2 REMOVAL AND REAPPOINTMENT OF DIRECTORS. Any director of E-LOAN JAPAN may be
removed for cause in accordance with the Commercial Code. In addition, SB
Finance and E-LOAN having the right to appoint a director pursuant to Section
9.1, respectively, shall also have the right, exercisable in its sole
discretion, to remove such director at any time, effective upon delivery of
written notice to E-LOAN JAPAN, the director to be removed and the other
shareholders of E-LOAN JAPAN. In the event of a vacancy in the office of a
director of E-LOAN JAPAN for any reason (including removal in accordance with
the preceding sentence), the vacancy may be filled by the Party that appointed
the relevant director at such Party's sole discretion.
9.3 BOARD MEETINGS. The President of E-LOAN JAPAN shall have the authority to
convene Board meetings of E-LOAN JAPAN, including the authority to specify the
time and place of such meetings. The Board of Directors of E-LOAN JAPAN shall
meet at least once every three (3) months. Written notice of all Board meetings
shall be given to each director and statutory auditor of E-LOAN JAPAN not less
than five (5) Business Days in advance of each meeting; provided, however, that
such notice may be waived or the period of such notice may be shortened for a
particular Board meeting of
-11-
Exhibit 10.15
E-LOAN JAPAN with the unanimous consent of the directors and statutory auditors
of E-LOAN JAPAN. Board meetings of E-LOAN JAPAN shall be conducted in English or
Japanese (with English interpretation if requested by SB Finance or E-LOAN, at
E-LOAN JAPAN's expense), and minutes of such meetings shall be prepared by
E-LOAN JAPAN in Japanese and distributed to each director without delay
following each meeting. Proposals or reports brought before any Board meeting of
E-LOAN JAPAN for information or action (including, but not limited to, the
E-LOAN JAPAN's annual and semi-annual financial statements) shall be prepared in
Japanese (with English translation, if requested by SB Finance or E-LOAN). The
cost of attending Board meetings of E-LOAN JAPAN with respect to any director
shall be borne by the party appointing the director. Directors may participate
by video conference system and E-LOAN JAPAN shall bear all such costs and
expenses in connection with such participation via video conference system.
9.4 BOARD QUORUM AND RESOLUTIONS. A majority of the directors of E-LOAN JAPAN in
office shall constitute a quorum for any Board meeting of E-LOAN JAPAN. Adoption
of any resolution of the Board of Directors of E-LOAN JAPAN shall require the
affirmative vote of a majority of the directors of E-LOAN JAPAN in office.
9.5 MANAGEMENT OF E-LOAN JAPAN. Notwithstanding any other provision of this
Agreement, in addition to approval by the Board of E-LOAN JAPAN, the prior
approval of E-LOAN (either in the form of written consent or voting by the
director of E-LOAN JAPAN nominated by E-LOAN) shall be required to cause or
allow E-LOAN JAPAN to take any actions set forth in EXHIBIT 9.5, attached
hereto. Unless any notice of non-approval is given by E-LOAN to E-LOAN JAPAN
within ten (10) Business Days after its receipt of notice of E-LOAN JAPAN's
intent to take any of such actions, it shall be deemed that E-LOAN approved the
action.
9.6 REPRESENTATIVE DIRECTOR. E-LOAN JAPAN's day-to-day operations shall be
managed by the President of E-LOAN JAPAN, who shall be a Representative Director
nominated by SB Finance from among the directors of E-LOAN JAPAN. SB Finance
shall have the right, exercisable in its sole discretion, to remove and replace
the President at any time, effective upon the delivery of written notice to
E-LOAN JAPAN, the President and the other shareholders of E-LOAN JAPAN. In the
event of a vacancy in the office of a the President for any reason (including
removal in accordance with the preceding sentence), the vacancy shall be filled
by SB Finance.
9.7 STATUTORY AUDITORS. The Company shall have at least (3) statutory auditors
(KANSA-YAKU), each of whom shall be appointed by SB Finance (one (1) of whom
shall serve on a full-time basis). A statutory auditor may be removed for cause
in accordance with the Commercial Code. SB Finance shall also have the right,
exercisable in its sole discretion, to remove such statutory auditor at any
time, effective upon delivery of written notice to E-LOAN JAPAN, the statutory
auditor to be removed and the other shareholders of E-LOAN JAPAN. In the event
of a vacancy in the office of a statutory auditor for any reason (including
removal in accordance with the preceding sentence), the vacancy shall be filled
by SB Finance.
9.8 ANNUAL PLAN. The President of E-LOAN JAPAN shall prepare, and the Board of
Directors of E-LOAN JAPAN shall approve, an Annual Plan of E-LOAN JAPAN with
respect to each fiscal year of E-LOAN JAPAN no later than sixty (60) days prior
to the commencement of the fiscal year. The Board of Directors of E-LOAN JAPAN
shall cause E-LOAN JAPAN to conduct its operations in accordance with the Annual
Plan of E-LOAN JAPAN, which shall set forth in reasonable detail
-12-
Exhibit 10.15
certain financial performance goals, including, without limitation, with respect
to revenues, profits, return on net assets and return on equity for the period
subject thereto.
9.9 FINANCIAL STATEMENTS AND ACCOUNTING RECORDS. Financial statements of E-LOAN
JAPAN, including, without limitation, a balance sheet, income statement,
statement of cash flows and statement of shareholders' equity, shall be
submitted by E-LOAN JAPAN to SB Finance and E-LOAN, (a) within sixty (60) days
after the end of the first six (6) months of each fiscal year for such six (6)
month period, and (b) within eighty (80) days after the end of each fiscal year
for such year. Each of the annual financial statements shall be audited and
certified by an internationally recognized accounting firm (which shall act as
an independent auditor under the Special Exceptions Law) retained by E-LOAN
JAPAN, selected by SB Finance and approved by E-LOAN, which approval shall not
be unreasonably withheld. All financial statements shall be prepared in
accordance with Japan GAAP and in reasonable detail, and shall contain such
financial data as SB Finance and E-LOAN may deem necessary in order to keep them
advised of the E-LOAN JAPAN's financial status (although quarterly statements
need not include footnotes and may be subject to year-end adjustments).
9.10 RIGHT OF INSPECTION. During the regular office hours of E-LOAN JAPAN, and
upon reasonable notice to E-LOAN JAPAN, SB Finance and E-LOAN shall have (a)
full access to all properties, books of account, and records of E-LOAN JAPAN,
and (b) the right to make copies from such books and records at its own expense.
Any information obtained by SB Finance and E-LOAN through exercise of rights
granted under this Section 9.10 shall, to the extent constituting Confidential
Information, be subject to the confidentiality provisions set forth in Article
XII.
9.11 TRANSLATIONS. E-LOAN JAPAN shall prepare English translations of any
minutes of any Board of Directors or shareholder meetings of E-LOAN JAPAN
initially prepared in Japanese. Such translations shall be prepared by either of
E-LOAN JAPAN's own staff, or an outside translation service, at of E-LOAN
JAPAN's election and expense. If there is any discrepancy between the Japanese
version of any minutes and the English translation thereof, the Japanese version
shall control.
ARTICLE X
PRE-EMPTIVE RIGHTS; ANTI-DILUTION
10.1 ANTI-DILUTION. Subject to a Board resolution required under the Commercial
Code, if the Company determines to increase its share capital by the issue of
additional Shares, other than in accordance with any incentive stock option plan
as contemplated in Section 10.2, each Party shall have the right to subscribe
for such additional Shares on a pro rata basis in accordance with their
respective shareholding ratio in the Company at the relevant time. If any Party
fails to exercise its right to subscribe for additional Shares, the other
Parties shall have the right, but not the obligation, to subscribe for the
unsubscribed Shares in accordance with their respective shareholding ratio.
10.2 INCENTIVE STOCK OPTION PLAN. The Parties agree that an incentive stock
option plan providing for reasonable grants of incentive stock options to the
employees and/or directors of the Company or any of the Subsidiaries would be
beneficial to the Company, and agree to cooperate in good faith with a view
towards establishing such a plan within twelve (12) months after the Closing
Date on terms
-13-
Exhibit 10.15
mutually agreed by the Parties. The Securities of the Company allocated to an
incentive stock option plan shall not, initially, represent more than a ten
percent (10%) Company Interest. Any Securities allocated to an incentive stock
option plan shall be newly issued and, accordingly, shall dilute the Parties'
respective Company Interests on a pro rata basis.
10.3 NO OTHER ISSUE OF NEW SECURITIES. Except for an issuance of new Securities
in accordance with Sections 10.1 and 10.2, the Company shall not, without each
Party's prior written consent, issue any Securities, purchase any Securities or
take any other actions which may affect the Shares of the Company held by any
Party. The issuance price or purchase price for such Securities shall be subject
to the approval of the Parties.
10.4 EXERCISE OF VOTING RIGHTS. The Parties shall cause the Company to comply
with the Company's AOI, this Agreement and the laws of Japan, and shall each
exercise its voting rights associated with the Shares of the Company owned by it
in a manner to achieve the intent of the Parties expressed in this Agreement.
ARTICLE XI
TRANSFERS OF SHARES
11.1 PROHIBITION AGAINST THE TRANSFER OF SHARES. Except for the transfer of
Shares to be conducted in accordance with Section 11.2 below, no Party may
transfer, create any liens (including pledges) on or otherwise dispose of any of
its Shares of the Company without the prior written consent of the other
Parties.
11.2 TRANSFER TO AN AFFILIATE OF A PARTY. Any Party may transfer any or all of
its Shares of the Company to its Affiliates ("PERMITTED TRANSFEREE") after
giving prior written notice to the other Parties; provided, however, that the
Party shall cause such Permitted Transferee to enter into an agreement to act in
accordance with the terms and conditions of this Agreement as if the Permitted
Transferee were a Party. No transfer of the Shares of the Company by a Party
under this Section 11.2 shall affect such Party's rights and obligations under
this Agreement in any manner.
11.3 BOARD APPROVAL. If a transfer of Shares of the Company is to be made in
accordance with Section 11.2 above, the Parties shall cause the Board to approve
such transfer.
ARTICLE XII
CONFIDENTIALITY
12.1 CONFIDENTIALITY. Each Party shall keep confidential and not disclose or use
in any manner, any Confidential Information, except for: (i) disclosures to its
agents, employees, representatives, consultants or advisors or to employees or
representatives of any of its Affiliates, having a need to know for the purposes
of evaluating and monitoring the Party's investment in the Company and/or
performing its rights or obligations allowed or required under this Agreement
and only on a confidential basis that is not less restrictive than the
obligations hereunder, (ii) disclosures required by applicable law or judicial
process, including without limitation, laws or rules of the stock exchange
-14-
Exhibit 10.15
applicable to a Party; or (iii) disclosure and use in connection with the
performance or enforcement of any agreement (including this Agreement) between
the Parties or between a Party and the Company.
12.2 PUBLIC DISCLOSURE. No Party shall make or cause to be made any public
announcement or release concerning this Agreement or the transactions
contemplated hereby without the prior written approval of the other Parties. The
preceding sentence shall not apply to the announcement and press release with
respect to the incorporation of the Company and the execution of this Agreement.
12.3 SURVIVAL. The provisions of Sections 12.1 and 12.2 above shall survive for
three (3) years after any expiration or termination of this Agreement.
ARTICLE XIII
TERMINATION OF AGREEMENT
13.1 TERM. The effectiveness of this Agreement shall commence on the date first
above stated and continue until terminated in accordance with this Article XIII.
13.2 AUTOMATIC TERMINATION. This Agreement shall automatically terminate upon
the liquidation of the Company or in the event the Company becomes a
publicly-held corporation.
13.3 EFFECT OF AUTOMATIC TERMINATION. If this Agreement shall terminate pursuant
to Section 13.2, such termination shall be without cost or liability to any
Party other than cost or liability arising out of breach of any covenant or
agreement contained in this Agreement.
13.4 TERMINATION FOR CAUSE. Except as specifically provided in subsections
(vii), (viii) and (ix) hereof, if any one of the following events occurs with
respect to a Party (the "BREACHING PARTY"), the other Parties (the
"NON-BREACHING PARTIES") may terminate this Agreement between the Breaching
Party upon written notice to the Breaching Party (the "TERMINATION NOTICE"):
(i) the Breaching Party seeks dissolution or liquidation;
(ii) any involuntary proceeding including bankruptcy or similar
proceedings is commenced, or any other action seeking
dissolution or liquidation is taken against the Breaching
Party, and such event continues for ninety (90) days
undismissed or undischarged;
(iii) assignment of all, or substantially all, of the Breaching
Party's assets for the benefit of creditors;
(iv) suspension of business of the Breaching Party for more than
thirty (30) days continuously other than for force
majeure;
(v) a material breach of this Agreement by the Breaching Party
and such breach is not cured within sixty (60) days after
notice of such breach has been deemed delivered by the
Non-Breaching Party;
-15-
Exhibit 10.15
(vi) a material breach of any provision of Article X;
(vii) With respect to INSWEB, which shall be treated as the
Breaching Party for the purpose of this subsection (vii),
termination of the InsWeb License Agreement attributable to
INSWEB thereunder;
(viii) With respect to M&M, which shall be treated as the
Breaching Party for the purpose of this subsection (viii),
termination of the J&H Consulting Services Agreement
attributable to J&H thereunder; or
(ix) With respect to E-LOAN, which shall be treated as the
Breaching Party for the purpose of this subsection (ix),
termination of the E-LOAN License Agreement attributable to
E-LOAN thereunder.
13.5 EFFECT OF TERMINATION FOR CAUSE. The Non-Breaching Parties shall have the
right to purchase all of the Shares of the Company owned by the Breaching Party
in accordance with their respective shareholding ratio in the Company at fair
market value at the time of termination. Fair market value shall be determined
by the Parties or, in the event the Parties cannot agree, by an independent,
internationally recognized accounting firm mutually agreed to by the
Non-Breaching Parties.
13.6 SURVIVAL OF REMEDIES. The termination of this Agreement pursuant to this
Article XIII shall not in any way operate to impair or destroy any of the rights
or remedies of the Non-Breaching Party, or to relieve the Breaching Party of its
obligations to comply with any of the provisions of this Agreement, which shall
have accrued prior to the date of termination.
ARTICLE XIV
INDEMNIFICATION
14.1 INDEMNIFICATION. Each Party agrees to indemnify and hold harmless each of
the other Parties and their respective Affiliates from and against all losses,
liabilities, damages, deficiencies, costs or expenses (including, without
limitation, interest, penalties and reasonable attorneys' fees and
disbursements) based upon, arising out of, or in connection with, the breach of
any representation and warranty, or the nonperformance, partial or total, of any
covenant or agreement of such Party contained in, or made pursuant to, this
Agreement.
ARTICLE XV
TERMINATION OF PREVIOUS JOINT VENTURE AGREEMENT
15.1 TERMINATION OF PREVIOUS JOINT VENTURE AGREEMENT. The InsWeb Japan Joint
Venture Agreement and the E-LOAN Japan Joint Venture Agreement shall terminate
as of the effective date of this Agreement; provided, however, that termination
of those agreements shall not release any party thereto from any liability or
obligation which has accrued as of the date of the termination, nor shall such
termination affect the survival of any provision thereof which is expressly
stated therein to survive the termination thereof (except for Section 5.4
(Noncompetition) of each of the InsWeb Japan
-16-
Exhibit 10/15
Joint Venture Agreement and the E-LOAN Japan Joint Venture Agreement,
respectively, which shall terminate as of the effective date of this Agreement).
For the avoidance of doubt, any license and services agreements entered into in
connection with such joint venture agreements, to which any Subsidiary is a
party, including without limitation the E-LOAN License Agreement, the InsWeb
License Agreement and the J&H Consulting Services Agreement, shall survive the
effective date of the Stock Transfer subject to minimal changes thereto, if
necessary; provided that "the Joint Venture" in the second line of Article 3 of
the InsWeb License Agreement and "the Licensee" in the fifth line of Section 4.1
of the E-LOAN License Agreement shall mean "the Company" as defined herein.
ARTICLE XVI
GENERAL PROVISIONS
16.1 NOTICES. Any notice or other communication required or permitted to be
given hereunder shall be in the English language and in writing and shall be
delivered personally, transmitted by facsimile (in each case followed by
confirmation delivered by registered and express mail) or sent by registered and
express mail, postage prepaid, and shall be deemed given when so delivered
personally, or if transmitted by facsimile, one (1) day after the date of such
facsimile, or if mailed, five (5) days after the date of mailing, to the Parties
at the following addresses (or to such other party and/or such other address as
shall be specified by like notice from the Party to which notice or other
communication shall be given originally, provided, however, that such notice of
a change of party and/or address shall be effective only upon receipt thereof):
if to SB Finance:
SOFTBANK FINANCE CORPORATION
0-00 Xxxxx-Xxxxxxxxxx
Xxxxxxx-xx, Xxxxx 000-0000 Xxxxx
Attn: President
Legal Department
Fax: 00-0-0000-0000
if to INSWEB:
INSWEB Corporation
00000 Xxxxxxx Xxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Xxxxxx Xxxxxx of America
Attn: Xxxx Xxxxx, Legal Counsel
Fax: 0-000-000-0000
if to E-LOAN:
E-LOAN, Inc.
0000 Xxxxxx Xxxx
Xxxxxx, XX 00000
Xxxxxx Xxxxxx of America
Attn: CEO
Fax: 0-000-000-0000
-17-
Exhibit 10.15
if to M&M:
Xxxxx & XxXxxxxx Risk Capital Holdings, Ltd.
1166 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
Attn: Xxxxxx X. Xxxxxxxx
Fax: 0-000-000-0000
16.2 ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the full and entire
understanding and agreement among the Parties with regard to the subjects
hereof. No waiver, alteration or amendment of any of the provisions hereof shall
be binding on a Party unless in writing and signed by a duly authorized
representative of such Party.
16.3 DELAYS OR OMISSIONS. No delay or omission to exercise any right, power or
remedy accruing to a Party, upon any breach or default of the other Party under
this Agreement, shall impair any such right, power or remedy of such Party nor
shall it be construed to be a waiver of any such breach or default, or an
acquiescence thereto, or a waiver of or an acquiescence to any similar breach or
default thereafter occurring. No waiver of any single breach or default shall be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of any Party under this Agreement, or any waiver on the part of any
Party of any provisions or conditions of this Agreement, shall be in writing and
shall be effective only to the extent specifically set forth in such writing.
All remedies, either under this Agreement or by law or otherwise afforded to any
Party, shall be cumulative and not alternative.
16.4 EXPENSES. Each Party shall bear its own expenses incurred on its
behalf with respect to the transactions contemplated hereby.
16.5 COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which shall be enforceable against the Parties actually executing such
counterparts, and all of which together shall constitute one instrument.
16.6 SEVERABILITY. In the event that any provision of this Agreement becomes or
is declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision; provided that no such severability shall be effective if it
materially changes the economic benefit of this Agreement to any Party.
16.7 NO RIGHT OF ASSIGNMENT. This Agreement shall inure to the benefit of, and
shall be binding upon, the Parties and their respective successors and assigns.
No Party may assign or delegate this Agreement or any of its rights or
obligations under this Agreement without the prior written consent of the other
Parties, unless to an Affiliate of such transferring Party; provided, that, such
assignment shall not affect such Party's rights and obligations under this
Agreement in any manner. Nothing herein is intended to confer on any person
other than the Parties or their respective successors and assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
-18-
16.8 DISCLAIMER OF PARTNERSHIP OR AGENCY. Nothing contained or implied in this
Agreement shall constitute or be deemed to constitute a partnership among the
Parties nor shall this Agreement constitute a Party as the legal representative
or agent of another Party, nor shall a Party have the right or authority to
assume, create, or incur any commitment, liability or obligation of any kind,
express or implied, against or in the name of or on behalf of another Party.
16.9 LANGUAGE. This Agreement (other than Exhibit 3.3) is made in the English
language, which shall control in the event of any conflict with translations of
this Agreement.
16.10 GOVERNING LAW. This Agreement shall be governed by and interpreted
in accordance with the laws of Japan.
16.11 ARBITRATION. All disputes, controversies or differences which may arise
among the Parties out of or in relation of or in connection with this Agreement
shall first be settled among the Parties amicably through good faith discussions
upon the written request of any Party. In the event that any such dispute cannot
be resolved thereby within a sixty (60) days after such written request, such
dispute shall be finally settled by binding arbitration. The arbitration shall
be conducted in Tokyo, Japan, in accordance with the commercial arbitration
rules of the Japan Commercial Arbitration Association ("JCAA"). The tribunal
shall consist of three (3) arbitrators who shall apply the laws of Japan. The
claimants and defendants, each as a group, shall be entitled to designate one
arbitrator. The third arbitrator shall be selected by other two (2) arbitrators
from lists of candidates determined to have an expertise in the financing and
information services relating to financial transactions on the internet in Japan
and worldwide, submitted by each of the Parties; provided, however, that if the
arbitrators cannot agree on a third arbitrator within sixty (60) days, the third
arbitrator shall be designated in accordance with the rules of the JCAA. The
arbitration shall be conducted in English. The arbitrators shall have the
authority to grant specific performance, and to allocate among the Parties the
costs of arbitration in such equitable manner as the arbitrators shall
determine. The prevailing Party(ies) in the arbitration shall be entitled to
receive reimbursement of its reasonable expenses incurred in connection
therewith. Judgement upon the award so rendered may be entered in any court
having jurisdiction or application may be made to such court for judicial
acceptance of any award and an order of enforcement, as the case may be.
Notwithstanding the foregoing, any Party shall have the right to institute a
legal action in a court of proper jurisdiction for injunctive relief and/or a
decree for specific performance pending final settlement by arbitration.
16.12 FORCE MAJEURE. Except for the failure to make payments when due, no Party
shall be liable to another Party by reason of any failure in performance of this
Agreement if the failure arises out of the unavailability of communications
facilities or energy sources, acts of God, acts of another Party, acts of
governmental authority, fires, strikes, riots or war, or any cause beyond the
reasonable control of such Party. If any such event delays performance, the time
allowed for such performance shall be appropriately extended.
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IN WITNESS WHEREOF, the Parties have hereunto executed this Agreement on the day
and year first above written.
SOFTBANK FINANCEINSWEB CORPORATION
CORPORATION
By: /S/ YOSHITAKA KITAO By: /S/ HUSSEINA. ENAN
-------------------------------------- -----------------------------
Name: Yoshitaka Kitao Name: Hussein A. Enan
Title: Representative Director & President Title: Chief Executive Officer
E-LOAN, INC. XXXXX & XXXXXXXX RISK
CAPITAL HOLDINGS, LTD.
By: /S/ XXXXXXXXX X. XXXXXX By: /S/ XXXXXX X. XXXXXXXX
-------------------------------------- -----------------------------
Name: Xxxxx Xxxxxx Name: Xxxxxx X. Xxxxxxxx
Title: CEO Title: illegible
ACKNOWLEDGED AND AGREED: ACKNOWLEDGED AND AGREED:
INSWEB JAPAN K.K. E-LOAN JAPAN CO., LTD.
By: /S/ XXXXXX XXXXXXX By: /S/ XXXXXXXX XXX
-------------------------------------- -----------------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxxxx Xxx
Title: Representative Director & President Title: Representative Director & President
ACKNOWLEDGED AND AGREED:
GOODLOAN CO., LTD.
By: /S/ XXXXXXXX XXX
--------------------------------------
Name: Xxxxxxxx Xxx
Title: Representative Director & President
-20-
Exhibit 10.15
EXHIBIT 3.3
ARTICLES OF INCORPORATION OF THE COMPANY
Exhibit 3.3
Exhibit 10.15
[Translation]
ARTICLES OF INCORPORATION
OF
FINANCE ALL CORPORATION
Incorporated on March 28, 2001
Provision of
Article 1 was
amended on March
28, 2001.
-2-
Exhibit 10.15
[Translation]
ARTICLES OF INCORPORATION
OF
FINANCE ALL CORPORATION
CHAPTER I. GENERAL PROVISIONS
Article 1. (Corporate Name)
The name of the Company shall be FINANCE ALL KABUSHIKI KAISHA, and its English
name shall be Finance All Corporation.
Article 2. (Business Purposes)
The purposes of the Company shall be to engage in the following business
activities:
(1) Information providing service for housing loans and automobile loans,
etc. using the Internet;
(2) Information searching service for housing loans and automobile loans,
etc. using the Internet;
(3) Acceptance of application for and liaison service for agreements
regarding housing loans and automobile loans, etc. and consulting
service using the Internet;
(4) Agency service for documentation;
(5) Agency service for the sending of documents;
(6) Planning, sale and purchase of advertisement media, and
agency service for advertisement;
(7) Agency service for non-life insurance;
(8) Services in regard to collection of life insurance;
(9) Management consulting service;
(10) Providing service of computer systems for service providers of
application program functions using the Internet;
(11) Providing the service of computer program functions using the
Internet;
(12) Information providing service;
(13) Development, design, manufacture, sale, export and import of
computers, related equipment and software;
(14) Marketing research and collection and analysis of various information;
(15) Planning, production and sale of books, magazines and other printed
matter;
(16) Information processing service;
(18) Lending and intermediary service for housing loans;
(19) Credit card service;
(20) Factoring of installment receivables;
(21) Money loan service;
(22) Agency service for money collection;
(23) Financing business;
(24) Money exchange business;
(25) Investigating service concerning financial status;
(26) Warranty service concerning financial status;
(27) Agency activities for the calculation;
(28)Comprehensive lease business and agency activities thereof;
(29) Factoring of accounts receivables and notes;
(30) Trading, holding and investment of securities, investment business and
investment advisory service;
-3-
(31) Agency for entering of accounts receivables and notes;
(32) Sale and purchase, mediation and management of various kinds of
membership certificates for golf clubs, sports clubs, resort mansions,
etc., complementary discount tickets, airline tickets, passenger
tickets and tickets for concerts or other entertainment and issuance
and sale of prepaid cards;
(33) Collection, processing and sale of information;
(34) Development, operation, sale and management of communication tools and
system software, and mediation thereof; and
(35) All other business activities relating to any of the aforesaid items.
Article 3. (Location of Head Office)
The head office of the Company shall be located in Chiyoda-ku, Tokyo.
Article 4. (Method for Public Notices)
Public notices of the Company shall be made in the Official Gazette (KAMPO).
CHAPTER II. SHARES
Article 5. (Total Number of Shares Authorized to be Issued)
The total number of shares authorized to be issued by the Company shall be
eighty-eight thousand nine hundred and sixty (88,960) shares.
Article 6. (Amount of Each Par Value Shares)
The amount of each of the par value shares to be issued by the Company shall be
fifty thousand (\50,000) yen.
Article 7. (Right of Fractional Shareholders)
1. Fractional shareholders of the Company shall have the right to receive
dividends and monetary distribution prescribed by Article 293-5 of the
Commercial Code (herein after referred to as "interim dividends").
2. By a resolution of the Board of Directors, when fractional shareholders
of the Company shall have the right to receive new shares, convertible
bonds and bond with pre-emptive right, the fractional shareholders have
the right to subscribe such shares or bonds.
Article 8. (Non-issuance of Certificate of Fractional Shares) The Company shall
not issue any certificates of fractional shares.
Article 9. (Restriction on Transfer of Shares)
Transfer of shares of the Company shall be subject to the approval of the Board
of Directors.
Article 10. (Share Handling Regulation)
The denomination of share certificates, the registration of transfer of shares,
the record on the register of shareholders or the fractional ledger, the
purchase of fractional shares, and any other treatment concerning fractional
shares and fees therefor shall be regulated in accordance with the Share
Handling Regulation determined by a resolution of the Board of Directors.
Article 11. (Specific Record Date)
1. The shareholder recorded on the final register of shareholders as of the
account settlement day
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Exhibit 10.15
of each business year shall be the shareholder who can exercise their voting
right at an Ordinary General Meeting of Shareholders that relates to the
relevant business year.
2. In addition to the immediately preceding paragraph, by a resolution of
the Board of Directors, the Company may fix a specific record date with
prior public notice whenever necessary.
CHAPTER III. GENERAL MEETING OF SHAREHOLDERS
Article 12. (Convocation)
1. An Ordinary General Meeting of Shareholders of the Company shall be
convened within three (3) months from the day immediately following every
account settlement date, and an Extraordinary General Meeting of
Shareholders shall be convened from time to time whenever necessary.
2. Unless otherwise prescribed by laws or by ordinances, the General
Meetings of Shareholders of the Company shall be convened by the
Director-President in accordance with a resolution of the Board of
Directors.
3. If the Director-President is unable to convene such meeting, another
director of the Company shall take his place in the order previously
determined by a resolution of the Board of Directors.
Article 13. (Chairperson of Meeting)
1. The Director-President of the Company shall act as the chairperson at
the meeting.
2. In the event that the Director-President is unable to act as such, one of
the other Directors shall take his place in the order previously
determined by the Board of Directors.
Article 14. (Method of Resolution)
Unless otherwise provided by laws or these Articles of Incorporation, a
resolution of the General Meeting of Shareholders shall be adopted by the vote
of shareholders representing a majority of shares entitled to vote and present
at the meeting.
Article 15. (Voting by Proxy)
1. A shareholder of the Company may exercise his voting right by authorizing
another shareholder as his proxy.
2. The proxy authorized in accordance with the preceding paragraph must be
filed with the Company as a document evidencing such authority at every
General Meeting of Shareholders.
Article 16. (Minutes of General Meeting)
The substance of proceedings at a General Meeting of Shareholders and the
results thereof shall be recorded in the minutes of the Meeting, on which the
names and seals or the signatures of the chairperson and the Directors present
at the meeting shall be affixed.
CHAPTER IV. DIRECTORS AND THE BOARD OF DIRECTORS
Article 17. (Number of Directors)
The number of Directors of the Company shall be three (3) or more.
Article 18. (Method of Election)
1. Directors of the Company shall be elected at a General Meeting of
Shareholders by the vote of
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Exhibit 10.15
shareholders representing a majority of shares entitled to vote and present at a
meeting at which not less than one third (1/3) of the outstanding shares of the
Company are represented.
2. For the election of Directors, cumulative voting shall not be adopted.
Article 19. (Term of Office)
1. The term of office of a Director shall expire at the close of the
Ordinary General Meeting of Shareholders that relates to the last account
settlement date within two (2) years after his assumption of office.
2. The term of office of a Director elected to fill a vacancy or to increase
the number of Directors shall be the same as the remaining term of office
of other Directors currently in office.
Article 20. (Directors with Specific Titles)
By a resolution of the Board of Directors of the Company, one (1)
Director-President shall be elected among Directors. Whenever necessary, one (1)
Chairman and other Vice-President(s), Executive Director(s) and Managing
Director(s) can be elected by resolution of the Board of Directors.
Article 21. (Representative Director)
1. The Director-President of the Company shall represent the Company and
supervise the business of the Company.
2. By a resolution of the Board of Directors of the Company, Representative
Director(s) may be elected among Directors with the specific title
prescribed in the preceding Article.
Article 22. (Convocation of Meetings of the Board of Directors and Chairperson)
1. Unless otherwise prescribed by laws, the Director-President of the Company
shall convene the Board of Directors and shall act as chairperson at such
meetings.
2. In the event that the Director-President is unable to act as such, one of
the other Directors shall take his place in the order previously determined
by the Board of Directors.
3. The notice of the convocation of a Meeting of Board of Directors shall be
given to each Director and Statutory Auditor at least three (3) days prior
to the date set for the meeting; provided, however, such period may be
shortened in case of emergency.
Article 23. (Method of Resolution)
Resolutions of the Board of Directors shall be adopted by the affirmative vote
of a majority of directors at a Meeting of Board of Directors at which more than
half of the Directors in office are present.
Article 24. (Minutes of Meetings)
The substance of proceedings at Board of Directors Meetings and the results
thereof shall be recorded in the minutes of the Meeting, on which the names and
seals or the signatures of the chairperson, the Directors and Statutory Auditors
present at the Meeting shall be affixed.
Article 25. (Regulation of the Board of Directors)
Unless otherwise provided by laws or these Articles of Incorporation, subjects
concerning the Board of Directors shall be regulated in accordance with the
Regulations of the Board of Directors determined by a resolution of the Board of
Directors.
Article 26. (Remuneration and Retirement Allowances of Directors)
The remuneration and retirement allowances for Directors and Statutory Auditors
shall be determined
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Exhibit 10.15
by a resolution of the General Meeting of Shareholders.
CHAPTER V. STATUTORY AUDITORS
AND THE BOARD OF STATUTORY AUDITORS
Article 27. (Number of Statutory Auditors) The number of Statutory Auditors
shall be three (3) or more.
Article 28. (Method of Election)
Statutory Auditors of the Company shall be elected at a General Meeting of
Shareholders by the vote of shareholders representing a majority of shares
entitled to vote and present at a meeting at which not less than one third (1/3)
of the outstanding shares of the Company are represented.
Article 29. (Term of Office)
1. The term of office of a Statutory Auditor shall expire at the close of
the Ordinary General Meeting of Shareholders that relates to the last
account settlement date within three (3) years after his/her assumption
of the office.
2. The term of office of a Statutory Auditor elected to fill a vacancy of a
Statutory Auditor who has retired before expiration of his term of
office, shall be the same as the remaining term of office of his
predecessor.
Article 30. (Full-time Statutory Auditors)
The Statutory Auditors shall elect full-time Statutory Auditor(s) from among
themselves.
Article 31. (Convocation of Meetings of Board of Statutory Auditors)
1. Meetings of the Board of Statutory Auditors may be convened by any
Statutory Auditor.
2. A notice of the convocation of a meeting of the Board of Statutory
Auditors shall be dispatched to each Statutory Auditor at least three (3)
days prior to the date of such meeting. Provided, however, the period of
such notice may be shortened in case of emergency.
Article 32. (Resolutions of Meetings of Board of Statutory Auditors)
Except as otherwise provided by laws, resolutions of a meeting of the Board of
Statutory Auditors shall be adopted by the affirmative vote of a majority of all
the Statutory Auditors in office.
Article 33. (Minutes of Meetings of Board of Statutory Auditors)
The substance of proceedings at Board of Statutory Auditors Meetings and the
results thereof shall be recorded in the minutes of the Meeting, on which the
names and seals or the signatures of the Statutory Auditors present at the
Meeting shall be affixed.
Article 34. (Regulation of the Board of Statutory Auditors)
Unless otherwise provided by laws or these Articles of Incorporation, subjects
concerning the Board of Statutory Auditors shall be regulated in accordance with
the Regulations of the Board of Statutory Auditors determined by a resolution of
the Board of Statutory Auditors.
Article 35. (Remuneration and Retirement Allowances of Statutory Auditors)
The remuneration and retirement allowances for Statutory Auditors shall be
determined by a resolution of the General Meeting of Shareholders.
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Exhibit 10.15
CHAPTER VI. ACCOUNTS
Article 36. (Business Year)
The business year of the Company shall be from October 1 each year through
September 30 the following year, and the last day of each business year shall be
the account settlement date.
Article 37. (Dividends)
Dividends of the Company shall be paid to the shareholders or the registered
pledgees recorded on the final register of shareholders as of the account
settlement date and to fractional shareholders recorded on the final fractional
ledger as of the account settlement date of each business year.
Article 38. (Interim Dividends)
By a resolution of the Board of Directors, the Company shall pay interim
dividends to the shareholders or registered pledgees recorded on the final
register of shareholders as of March 31 of each year and to fractional
shareholders recorded on the final fractional ledger as of the same date.
Article 39. (Expiration of Right to Receive Dividends)
If the dividends or interim dividends are not received after three (3) full
years from the date on which payment thereof is authorized, the Company shall be
relieved of its obligation to make such payment. No interest shall accrue on
dividends or interim dividends.
Article 40. (Conversion Time of Convertible Bonds and Dividends)
The Company shall pay initial dividends or interim dividends on shares issued in
connection with conversion of convertible bonds, treating October 1 as the date
of conversion if any requests for the conversion of convertible bonds are made
from October 1 through March 31 the following year, and treating April 1 as the
date of conversion if any requests for the conversion of convertible bonds are
made from April 1 through September 30.
CHAPTER VII. SUPPLEMENTARY PROVISIONS
Article 41. (The Number of Shares to be Issued at Incorporation)
The total number of shares to be issued at the time of incorporation of the
Company shall be twenty-two thousand two hundred and forty (22,240) shares, all
of which shall be non-par value shares.
Article 42. (First Business Year)
The first business year of the Company shall commence on the date of
incorporation of the Company and shall end on September 30, 2001.
Article 43. (Term of Office of First Directors and Statutory Auditors)
The term of office of the first Directors and Statutory Auditors of the Company
shall be until the closing of the first Ordinary General Meeting of Shareholders
of the Company that relates to the last account settlement date within one (1)
year after their assumption of office.
-8-
Exhibit 10.15
EXHIBIT 4.2
STOCK TRANSFER RATIO
SUBSIDIARY NUMBER OF SUBSIDIARY SHARE NUMBER OF COMPANY SHARE
---------- -------------------------- -----------------------
TO BE ALLOCATED
----------------------------------
INSWEB JAPAN 1 0.8
E-LOAN JAPAN 1 0.8
GOODLOAN 1 0.24
Exhibit 4.2.
Exhibit 10.15
Exhibit 7.6
ACTIONS OF THE COMPANY REQUIRING APPROVAL OF INSWEB AND E-LOAN
(1) Adoption, amendment or repeal of any article of the Company's AOI;
(2) Any merger or consolidation of the Company, whether or not the Company is
the surviving entity, or any sale, lease, exchange or mortgage of all or
any material portion of the Company's assets;
(3) Declaration or payment of any dividend or other distribution with
respect to Shares or other Securities of the Company; and
(4) The issuance of Shares or other Securities of the Company in any fiscal
year in excess of a total subscription price of one billion yen
((Y)1,000,000,000).
Exhibit 7.6.
Exhibit 10.15
EXHIBIT 8.5(A)
ACTIONS OF INSWEB JAPAN REQUIRING APPROVAL OF INSWEB
FOR SO LONG AS INSWEB HOLDS AN 11.51% OR GREATER COMPANY INTEREST:
(1) Adoption, amendment or repeal of any article of INSWEB JAPAN's AOI;
(2) Declaration or payment of any dividend or other distribution with respect
to Shares or other Securities of INSWEB JAPAN, or repurchase of any
Shares or other Securities of INSWEB JAPAN;
(3) Any merger or consolidation of INSWEB JAPAN, whether or not INSWEB JAPAN
is the surviving entity, or any sale, lease, exchange or mortgage of all
or any material portion of the assets of INSWEB JAPAN:
(4) Investment of capital in, or acquisition of, any interest in another
entity by INSWEB JAPAN;
(5) Any activity of INSWEB JAPAN, taken or proposed to be taken which (a) is
inconsistent, in any material respect, with any provision of the
then-current Annual Plan agreed upon by SB Finance and INSWEB after
notice from INSWEB pursuant to Section 8.8.(b), or (b) other than in
accordance with the then-current Annual Plan of INSWEB JAPAN, (i) is
outside the scope of the business of INSWEB JAPAN as described in its AOI
or (ii) requires a material cash expenditure or material commitment of
personnel by INSWEB (other than in accordance with an existing agreement
between INSWEB Japan and INSWEB);
(6) Any new issuance of Shares or any other Securities of INSWEB JAPAN to
any Person other than SB Finance, INSWEB and/or M(Ampersand)M;
(7) Incurrence of any debt obligation in excess of(Y)400,000,000;
(8) Any investment in, loan to, or joint venture with any other Person;
(9) Establishment of any subsidiary of INSWEB JAPAN and any transaction
between INSWEB JAPAN and such subsidiary; and
(10) Any transaction or series of related transactions between SB Finance or
any Affiliate of SB Finance, on the one hand, and INSWEB JAPAN, on the
other hand, involving an aggregate amount in excess of Y60,000,000.
FOR SO LONG AS INSWEB HOLDS AN 8.63% OR GREATER COMPANY INTEREST:
Any of the actions described under Items (1) and (3).
FOR SO LONG AS INSWEB OWNS ANY SHARES OF THE COMPANY:
(11) Sale, license, sublicense, encumbrance or any other transfer of any
proprietary rights by
Exhibit 8.5(a)-1.
Exhibit 10.15
INSWEB JAPAN; and
(12) Any amendment to the InsWeb License Agreement or the InsWeb Japan
Consulting Services Agreement.
Exhibit 8.5(a)-2.
Exhibit 10.15
EXHIBIT 8.5(B)
ACTIONS OF INSWEB JAPAN REQUIRING APPROVAL OF M&M
FOR SO LONG AS M&M HOLDS AN 8.63% OR GREATER COMPANY INTEREST:
(1) Adoption, amendment or repeal of any article of INSWEB JAPAN's AOI; and
(2) Any merger or consolidation of INSWEB JAPAN, whether or not INSWEB JAPAN
is the surviving entity, or any sale, lease, exchange or mortgage of all
or any material portion of the assets of INSWEB JAPAN.
Exhibit 8.5(b).
Exhibit 10.15
EXHIBIT 9.5
ACTIONS OF E-LOAN JAPAN REQUIRING APPROVAL OF E-LOAN
FOR SO LONG AS E-LOAN HOLDS A 7.20% OR GREATER COMPANY INTEREST:
(1) Adoption, amendment or repeal of any article of E-LOAN JAPAN's AOI (i)
providing E-LOAN with protective voting rights, (ii) designating the
corporate name or business of E-LOAN JAPAN or (iii) effecting any change
in the capital structure of E-LOAN JAPAN (other than an amendment
increasing E-LOAN JAPAN's authorized capital or otherwise necessary in
connection with such an increase);
(2) Declaration or payment of any dividend or other distribution with
respect to Shares or other Securities of E-LOAN JAPAN;
(3) Any merger or consolidation of E-LOAN JAPAN, whether or not E-LOAN JAPAN
is the surviving entity, or any sale of all or substantially all of the
assets of E-LOAN JAPAN;
(4) Investment of capital in, or acquisition of, any interest in another
entity by E-LOAN JAPAN;
(5) Change of the principal business of E-LOAN JAPAN; and
(6) Any new issuance of Shares or any other Securities of E-LOAN JAPAN to
any Person other than SB Finance and/or E-LOAN.
FOR SO LONG AS E-LOAN OWNS ANY SHARES OF THE COMPANY:
(7) Sale, sublicense, encumbrance or any other transfer of any proprietary
rights by E-LOAN JAPAN; and
(8) Any amendment to the E-LOAN License Agreement.
Exhibit 9.5.
