Exhibit 10.1
JOINT VENTURE AGREEMENT
by and between
SOFTBANK CORP.
and
E*TRADE GROUP, INC.
June 3, 1998
JOINT VENTURE AGREEMENT
This JOINT VENTURE AGREEMENT ("AGREEMENT") is made as of June 3, 1998, by
and between E*TRADE GROUP, INC., a Delaware corporation ("E*TRADE"), and
SOFTBANK CORP., a Japanese corporation ("SOFTBANK"). E*TRADE and SOFTBANK are
hereunder also referred to collectively as the "PARTIES" and individually as a
"PARTY."
RECITALS
A. SOFTBANK is a leading provider of information and distribution services
in Japan and worldwide as infrastructure for the digital information industry.
B. E*TRADE is a leading provider of Internet-based online securities
trading services.
C. The Parties desire to form a joint venture to provide online securities
trading services to residents of Japan on the terms and subject to the
conditions set forth herein.
NOW THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the Parties hereby agree as follows:
AGREEMENT
1. DEFINITIONS
1.1 "AFFILIATE" means any Person: (a) that is controlled by, controls,
or is under common control with a Party (collectively, a "CONTROLLED PERSON");
or (b) that is controlled by, controls, or under common control with any such
Controlled Person, in each case for so long as such control continues; provided,
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however, (i) that Affiliates of either Party shall include Persons in which such
Party owns, directly or indirectly, shares representing at least thirty percent
(30%) of the voting power represented by such Affiliates' outstanding shares,
regardless of whether such control actually exists and (ii) Yahoo Inc. shall not
be deemed an Affiliate of SOFTBANK or any member of the SOFTBANK Group for
purposes of this Agreement. For purposes of this definition and Section 1.19,
"CONTROL" shall mean the possession, directly or indirectly, of power to direct
or cause the direction of management or policies (whether through ownership of
securities or other ownership interests, by contract or otherwise).
1.2 "ANNUAL PLAN" means a business operations plan detailing E*TRADE
Japan's goals and procedures for personnel, technical, financial, administrative
and marketing activities for E*TRADE Japan's next succeeding fiscal year, as
approved each year and revised from time to time by the Board.
1.3 "ARTICLES" means the articles of incorporation of E*TRADE Japan in
the form of attached Exhibit 1.3, as the same may be amended from time to time
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in accordance with this Agreement and the Commercial Code.
1.4 "BOARD" means the board of directors of E*TRADE Japan.
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1.5 "BUSINESS" means the development and distribution of online
electronic investing services permitting residents of Japan to place and
consummate orders for securities over the internet, and to initiate and
consummate such other transactions as the Parties may agree from time to time
after prior consultation and review of applicable regulatory issues.
1.6 "BUSINESS DAY" means a day on which commercial banks in the United
States and Japan are generally open to conduct their regular banking business.
1.7 "CLOSING DATE" is defined in Section 3.2(a).
1.8 "COMMERCIAL CODE" means the Commercial Code of Japan, as amended
and in effect from time to time.
1.9 "COMMON STOCK" means common stock of E*TRADE Japan as authorized by
the Articles.
1.10 "CONFIDENTIAL INFORMATION" means all nonpublic or proprietary
information disclosed by SOFTBANK, E*TRADE, E*TRADE Japan, or any of their
Affiliates to any Party (whether owned by the disclosing Party or a third party
to whom the disclosing Party owes a non-disclosure obligation) other than
information which the receiving Party can demonstrate: (i) was known to the
receiving Party at the time of the disclosure by the disclosing Party; (ii) has
become publicly known through no wrongful act of the receiving Party; (iii) has
rightfully been received by the receiving Party from a third party; or (iv) has
been independently developed by the receiving Party.
1.11 "CONSULTING SERVICES AGREEMENT' means the Consulting Services
Agreement to be entered into between SOFTBANK and E*TRADE Japan on the Closing
Date in the form of attached Exhibit 1.11, as amended from time to time.
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1.12 "DIRECTOR" means a member of the Board.
1.13 "DISCLOSING PARTY" is defined in Section 5.2.
1.14 "ETJ INTEREST" shall mean, for a Party, the percentage interest
represented by the Securities then held by such Party divided by the all
outstanding Securities (on an as-converted to Common Stock basis).
1.15 "E*TRADE AFFILIATES" is defined in Section 3.4(a).
1.16 "E*TRADE JAPAN" is defined in Section 3.1.
1.17 "E*TRADE SECURITIES" is defined in Section 6.2(a).
1.18 "EFFECTIVE DATE" means the date of this Agreement.
1.19 "FUND" means any investment fund controlled by SOFTBANK or any
SOFTBANK Affiliate.
1.20 "KEY OFFICERS" means those E*TRADE Japan employees who are in
management positions reporting directly to the President.
1.21 "LAUNCH DATE" is defined in Section 3.1.
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1.22 "LICENSE AGREEMENT" shall mean the License Agreement to be entered
into between E*TRADE and E*TRADE Japan on the Closing Date in the form attached
hereto as Exhibit 1.22 and as amended from time to time.
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1.23 "LOAN" is defined in Section 3.3.
1.24 "PARTNERS" means such Persons as SOFTBANK deems strategically
important to the success of E*TRADE Japan and proposes to include in the
SOFTBANK Group pursuant to Section 3.2(a).
1.25 "PARTY" and "PARTIES" are defined in the opening paragraph of this
Agreement.
1.26 "PERSON" means a natural individual, partnership, firm,
corporation, or other entity or form of business association.
1.27 "PROMISSORY NOTE" means a promissory note, dated the Closing Date,
made by E*TRADE in favor of SOFTBANK, and in the form of attached Exhibit 1.27.
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1.28 "PROPRIETARY INFORMATION" is as defined in the License Agreement.
1.29 "RECEIVING PARTY" is defined in Section 5.2.
1.30 "REGISTER" is defined in Section 3.3(c).
1.31 "SECURITIES" shall mean all outstanding shares of Common Stock and
any other equity securities of E*TRADE Japan or instruments exercisable or
exchangeable for or convertible into Common Stock or other equity securities of
E*TRADE Japan.
1.32 "SECURITIES BUSINESS LICENSE" means a securities business license
for the broker-dealer business under the Japan Securities and Exchange Law (Law
No. 25 of 1948, as amended).
1.33 "SOFTBANK GROUP" is defined in Section 3.2(a).
1.34 "SPECIAL EXCEPTIONS LAW" means the Law Pertaining to Special
Exceptions to the Commercial Code concerning Auditors of Companies (Kabushiki
Kaisha).
1.35 "STATUTORY AUDITOR" means a statutory auditor (Kansa-yaku) of
E*TRADE Japan with powers and duties as specified in the Commercial Code.
1.36 "TEMPORARY ACCOUNT" is defined in Section 3.2(a).
1.37 "TERM" is defined in Section 7.1.
1.38 "TRANSACTION DOCUMENTS" means this Agreement, the Articles, the
License Agreement, the Consulting Services Agreement, the Promissory Note and
each other agreement entered into between the Parties on or as of the Effective
Date or the Closing Date, as the case may be, in connection with the
transactions contemplated hereby.
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2. PURPOSE OF JOINT VENTURE
The Parties hereby associate themselves in a joint venture relationship
which shall have as its principal purpose the establishment and development of
the Business.
3. ESTABLISHMENT AND CAPITALIZATION OF E*TRADE JAPAN
3.1 Establishment. The Parties agree that the joint venture
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contemplated by this Agreement shall be carried out exclusively through a newly-
formed Japanese kabushiki kaisha established by the Parties pursuant to this
Section 3.2 ("E*TRADE JAPAN"). E*TRADE Japan's corporate name shall be "X.XXXXX
Kabushiki Kaisha" in Japanese and "E*TRADE Japan K.K." in English. The Parties
shall use commercially reasonable efforts to cause E*TRADE Japan to commence
commercial operations by January 10, 1999 (the "LAUNCH DATE"). Promptly
following E*TRADE Japan's receipt of a broker-dealer business license pursuant
to the Securities and Exchange Law (Law No. 25 of 1948, as amended), the Parties
shall cooperate to cause the Articles to be amended to reflect (a) "X.XXXXX
SHOKEN KABUSHIKI KAISHA" as E*TRADE Japan's name in Japanese, and (b) the
appropriate business purposes of E*TRADE Japan.
3.2 Capitalization.
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(a) Initial Capitalization. E*TRADE Japan shall, as of the second
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(2nd) Business Day immediately following the Effective Date (the "CLOSING
DATE"), have authorized capital stock consisting of one class of shares
designated as Common Stock with the rights set forth in the Articles.
Fifty-four thousand (54,000) shares of Common Stock, with a par value of
(Yen)50,000 per share, shall be issued on the Closing Date. Listed in
Exhibit 3.2 are the SOFTBANK Affiliates, Funds and Partners which shall be
included as the initial SOFTBANK shareholders of E*TRADE Japan (the
"SOFTBANK GROUP"). SOFTBANK shall notify E*TRADE in writing regarding any
SOFTBANK Affiliates, Funds and Partners which SOFTBANK proposes to include
as additional SOFTBANK shareholders of E*TRADE Japan following the Closing
Date, whether in connection with a subscription for newly-issued Securities
pursuant to Section 3.4 or by way of transfer of Securities from one or
more members of the then-current SOFTBANK Group. E*TRADE shall have the
right to approve such proposed additional SOFTBANK Group members, which
approval shall not be unreasonably withheld. E*TRADE shall deliver to
SOFTBANK written confirmation of its approval of or objection to additional
proposed SOFTBANK Group members within five (5) Business Days of E*TRADE's
receipt of SOFTBANK's notice, and any such entities so approved by E*TRADE
shall be deemed to be members of the SOFTBANK Group for purposes of this
Agreement. E*TRADE Japan's initial equity shall be funded as follows: On
the Effective Date, SOFTBANK and E*TRADE shall (i) instruct their
respective banks to wire (Yen)1,566,000,000 and (Yen)1,134,000,000,
respectively, to a temporary account ("Betsudan Yokin") established by
SOFTBANK at The Fuji Bank, Limited (Tokyo headquarters), account number
3948, for purposes of incorporating E*TRADE Japan (the "TEMPORARY
ACCOUNT"), and (ii) shall exchange with each other copies of such wire
instructions. Upon written confirmation of receipt of such wire transfers
in the Temporary Account on or prior to the Closing Date (a copy of which
confirmation SOFTBANK shall deliver promptly to E*TRADE), the Parties shall
be deemed to have made, effective as of the Closing Date, and SOFTBANK
shall cause to be reflected in the documentation for E*TRADE Japan's
registration of incorporation, the following initial subscriptions for
shares of Common Stock:
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(i) SOFTBANK Group Initial Subscription. The SOFTBANK Group
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shall, collectively, subscribe for thirty-one thousand three hundred twenty
(31,320) shares of Common Stock, representing a fifty-eight percent (58%)
ETJ Interest; and
(ii) E*TRADE Purchase. E*TRADE shall subscribe for twenty-two
thousand six hundred eighty (22,680) shares of Common Stock, representing a
42% ETJ Interest.
(b) Certain Deliveries. On the Closing Date:
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(i) SOFTBANK shall (A) execute and deliver to E*TRADE the
Transaction Documents (other than this Agreement) to which SOFTBANK is a
party, (B) cause E*TRADE Japan to execute and deliver to E*TRADE the
License Agreement and the Consulting Services Agreement and (C) subject to
Section 3.3, cause to be wired to E*TRADE the Loan proceeds; and
(ii) E*TRADE shall execute and deliver to SOFTBANK and to E*TRADE
Japan the License Agreement, and execute and deliver to SOFTBANK the other
Transaction Documents (other than this Agreement) to which E*TRADE is a
party.
(c) Acknowledgment of Agreement; Delivery of Share Certificates.
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Promptly after the Closing Date, SOFTBANK shall cause E*TRADE Japan (i) to
deliver to each Party its written acknowledgment of, and agreement to abide
by, the terms of this Agreement, and (ii) at the request of either SOFTBANK
or E*TRADE, to promptly issue and deliver to the SOFTBANK Group and to
E*TRADE share certificates representing the shares of Common Stock
subscribed for and purchased pursuant to this Section 3.2.
3.3 Loan.
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(a) In General. In order to assist E*TRADE in funding its purchase of
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Common Stock pursuant to Section 3.2, SOFTBANK hereby agrees to loan to
E*TRADE on the Closing Date, by wire transfer to such bank account as
E*TRADE shall specify in writing to SOFTBANK on or before the Effective
Date, and E*TRADE hereby agrees, to borrow from and repay to SOFTBANK,
(Yen)567,000,000 (the "LOAN"). The Loan shall be subject to E*TRADE's prior
execution and delivery to SOFTBANK of the Promissory Note and the terms of
E*TRADE's repayment of the Loan shall be governed thereby.
(b) The Register. E*TRADE shall maintain at its address referred to in
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Section 10.2 hereof a register (the "REGISTER") for the recordation of (i)
the name and address of each Noteholder (as defined in the Promissory Note)
and (ii) the principal amount of the Loan owing to, and any Promissory Note
evidencing such Loan owned by, each Noteholder from time to time.
Notwithstanding anything to the contrary in this Agreement, E*TRADE and
each Noteholder shall treat each Person whose name is recorded in the
Register as the owner of the Loan for all purposes of this Agreement. The
Register shall be available for inspection by any Noteholder at any
reasonable time and from time to time upon reasonable prior notice.
(c) Forms. The Noteholder:
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(i) shall furnish to E*TRADE on or before the date of any
payment to such Noteholder by E*TRADE pursuant to the terms of the
Promissory Note an
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accurate and complete original signed copy of Internal Revenue Service Form
W-8, or successor applicable form, certifying to such information as may be
requested to establish such Noteholder's legal entitlement at the date of
such certificate to an exemption from U.S. withholding tax under the
provisions of Section 881(c) of the Code with respect to payments of
interest to be made on the Loan (and deliver to E*TRADE a further copy of
such form on or before the date it expires or becomes obsolete and after
the occurrence of any event requiring a change in the most recently
provided form); and
(ii) agrees to the extent legally entitled to do so, upon
E*TRADE's reasonable request, to provide to E*TRADE (for the benefit of
E*TRADE) (A) such other forms as may be reasonably required in order to
establish the legal entitlement of such Noteholder to an exemption from
U.S. withholding tax with respect to payment of interest made on the Loan
and (B) such other supplemental forms as may at any time be required as a
result of changes to applicable law or regulations in order to confirm or
maintain in effect its entitlement to exemption from U.S. withholding tax
on any payments of interest made on the Loan; provided, however, that
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E*TRADE shall promptly reimburse all of such Noteholder's reasonable
out-of-pocket costs and expenses (including attorneys' fees) incurred in
connection with the performance of its obligations pursuant to this Section
3.3(c).
3.4 Additional Capital; Preemptive Right.
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(a) Subject to Section 4, the Board may, by written notice to the
Parties pursuant to the terms hereof, setting forth the terms, conditions
and reasons for the financing, call for the Parties to subscribe for such
additional Securities as the Board may deem appropriate based on E*TRADE
Japan's capital requirements from time to time. Except as set forth in
Section 3.4(b), the SOFTBANK Group, E*TRADE and E*TRADE Securities (and
E*TRADE's other Affiliates, to the extent approved by SOFTBANK pursuant to
this Section 3.4(a), the "E*TRADE AFFILIATES") shall have the right to
purchase their respective pro rata share (which shall be equal to their
then-current respective ETJ Interests) of any new issuance of Securities
(i) proposed to be issued to the Parties pursuant to the immediately
preceding sentence, and (ii) in the event of a proposed new issuance of
Securities to any other Person, on the same terms and conditions as such
Securities are offered to any other Person. SOFTBANK and E*TRADE shall each
notify the other Party and E*TRADE Japan in writing of its decision to
participate in any such proposed new issuance of Securities within ten (10)
Business Days after receipt of the notice described in the first sentence
of this Section 3.4(a). SOFTBANK shall have the right to approve in advance
(which approval shall not be unreasonably withheld) any Affiliates of
E*TRADE which E*TRADE proposes to include as shareholders of E*TRADE Japan.
To the extent the SOFTBANK Group or E*TRADE (including E*TRADE Affiliates)
elects not to subscribe for its full pro rata share of such Securities,
SOFTBANK Group (if E*TRADE does not so subscribe) and E*TRADE (if the
SOFTBANK Group does not so subscribe) shall be entitled to purchase any of
the unsubscribed Securities. The Party electing to subscribe for any of the
unsubscribed Securities shall, together with E*TRADE Japan, effect the
closing of such subscription within thirty (30) days of its receipt of the
nonsubscribing Party's election not to subscribe for such Securities, on
the terms contained in the notice first mentioned above in this Section
3.4(a). Any subsequent proposed subscription of such Securities shall again
be subject to the Parties' preemptive rights, and shall require compliance
with the procedures, described in this Section 3.4(a).
(b) Notwithstanding Section 3.4(a), the SOFTBANK Group and E*TRADE
shall not have the right to purchase their pro rata share of new issuances
of
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Securities issued pursuant to an E*TRADE Japan employee stock option plan
adopted by the Board in accordance with this Agreement.
3.5 Employee Stock Option Plan. The Parties agree that an employee
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stock option plan would be beneficial to E*TRADE Japan, and accordingly shall
cooperate in good faith with a view towards establishing such a plan within
twelve (12) months after the Effective Date on terms mutually agreed by the
Parties. The Securities allocated to an employee stock option plan shall not,
initially, represent more than a two percent (2%) ETJ Interest. Any Securities
allocated to an employee stock option plan shall be newly-issued and accordingly
shall dilute the Parties' respective ETJ Interests on a pro rata basis.
3.6 ETJ Interest. The Parties agree to implement E*TRADE Japan's
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capital structure and the terms of this Agreement so that at all times during
the term hereof, including following E*TRADE Japan's initial public offering,
(a) the SOFTBANK Group's ETJ Interest (on a fully-diluted basis taking into
account any shares reserved for issuance pursuant to any employee stock option
plan) shall not be less than fifty and one tenth percent (50.1%) and (b) E*TRADE
Group's ETJ Interest (on a fully-diluted basis taking into account any shares
reserved for issuance pursuant to any employee stock option plan) shall not be
less than thirty-four and nine-tenths percent (34.9%).
4. OPERATION AND MANAGEMENT OF E*TRADE JAPAN
4.1 Operation of E*TRADE Japan. The Parties agree to take all actions
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necessary to ensure that E*TRADE Japan shall be operated in accordance with the
terms of this Agreement and the other Transaction Documents.
4.2 Board of Directors. E*TRADE Japan will be managed by the Board in
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accordance with the terms of this Agreement and applicable law. The Board shall
initially consist of five (5) Directors, three (3) of whom shall be nominated by
SOFTBANK and two (2) of whom shall be nominated by E*TRADE. If E*TRADE's ETJ
Interest at any time decreases to less than thirty-five percent (35%), the
Parties shall cause the Board constituency to be adjusted within thirty (30)
Business Days of such decrease so that four (4) Directors are nominated by
SOFTBANK and one (1) Director is nominated by E*TRADE. If the SOFTBANK Group's
ETJ Interest at any time decreases to less than forty two percent (42%), the
Parties shall cause the Board constituency to be adjusted so that only two (2)
Directors are nominated by SOFTBANK, and if the SOFTBANK Group's ETJ Interest at
any time decreases to less than thirty-five percent (35%), the Parties shall
cause the Board constituency to be adjusted so that only one (1) Director is
nominated by SOFTBANK, in each case within thirty (30) Business Days of the
triggering decrease.
4.3 Removal; Reappointment of Directors. Any Director may be removed
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for cause in accordance with applicable law. In addition, each Party having the
right to appoint a Director pursuant to this Section 4 shall also have the
right, in its sole discretion, to remove such Director at any time, effective
upon delivery of written notice to E*TRADE Japan, the Director to be removed and
to the other Party. In the case of a vacancy in the office of a Director for any
reason (including removal pursuant to the preceding sentence), the vacancy shall
be filled by the Party that nominated or has the right to nominate the Director
in question.
4.4 Board Meetings. The President shall have the authority to convene
Board meetings, including the authority to specify the time and place of such
meetings (with video
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conference or any other legally permitted means of meeting to be permitted at
the request of any Director); provided, however, that (i) the Board shall meet
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at least once during each calendar quarter and (ii) written notice of such
meetings shall be given not less than twenty (20) Business Days in advance
(which twenty (20)-Business Day period may be shortened by written waiver of
Directors or actual attendance by Directors, without objection, at a special
Board meeting). Board meetings shall be conducted in the Japanese language (with
English translation) and minutes of such meetings shall be prepared by E*TRADE
Japan in Japanese and English and distributed to each Director promptly
following a meeting. In the event of conflict or controversy, the Japanese
version of the minutes shall control. Proposals or reports brought before any
Board or shareholders' meeting for information or action (including without
limitation E*TRADE Japan's annual and semi-annual financial statements) shall be
prepared in English and Japanese. In the event of conflict or controversy, the
Japanese version thereof shall control. Any and all reasonable travel costs
(including without limitation business class air travel) and expenses incurred
for purposes of attendance by a Party's Directors at Board meetings held outside
the country where the Party's corporate headquarters is located shall be
reimbursed by E*TRADE Japan.
4.5 Board Quorum, Resolutions. A quorum shall be deemed to exist for
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purposes of Board actions so long as at least three (3) Directors are present,
including one Director appointed by each of the Parties. If no Directors
nominated by a Party attend a duly noticed Board meeting, such meeting shall be
immediately adjourned and rescheduled, and written notice of such rescheduled
meeting shall be delivered to the Directors not less than five (5) Business Days
in advance of the rescheduled meeting. If the number of Directors who attend
such rescheduled meeting is not sufficient to constitute a quorum under the
first sentence of this Section 4.5, a quorum shall be deemed to exist for
purposes of the rescheduled meeting notwithstanding such non-attending
Directors' absence so long as there is a sufficient number of directors present
to constitute a valid quorum pursuant to the Commercial Code. Any action,
determination or resolution of the Board shall require the affirmative vote of a
majority of Directors present at a meeting at which a valid quorum pursuant to
this Section 4.5 is present.
4.6 E*TRADE Approval Rights. Notwithstanding any other provision of
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this Agreement, in addition to approval by the Board, E*TRADE's prior written
approval (either in the form of a written consent or in the form of E*TRADE's
Director voting in favor of such action at a duly held Board meeting) shall be
required for any of the actions described in attached Exhibit 4.6. E*TRADE's
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approval rights in respect of the President, Key Officers and Statutory Auditors
pursuant to Sections 4.7 and 4.8 shall be subject to the limitations set forth
in attached Exhibit 4.6.
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4.7 Representative Director; Key Officers. E*TRADE Japan shall have
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one (1) President, who shall be the Representative Director of E*TRADE Japan in
accordance with the Commercial Code. The President shall be elected by the Board
from among the Directors nominated by SOFTBANK pursuant to Section 4.2. E*TRADE
shall have the right to approve the President and the Key Officers (which
approval shall not be unreasonably withheld). SOFTBANK shall have the right,
exercisable in its sole discretion, to remove and, subject to E*TRADE's prior
approval of the proposed successor, replace the President or any Key Officer at
any time, effective upon the delivery of written notice to E*TRADE Japan, the
President or the Key Officer, and E*TRADE. SOFTBANK shall also have the right to
appoint a successor President or Key Officer, subject to E*TRADE's prior
approval of the proposed successor, in the event a vacancy arises for any
reason.
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4.8 Statutory Auditors. E*TRADE Japan shall have three (3) Statutory
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Auditors whom shall be nominated by SOFTBANK, subject to E*TRADE's prior
approval (which approval shall not be unreasonably withheld and provided that
affiliation with SOFTBANK or any member of the SOFTBANK Group shall not be
deemed a basis for E*TRADE's withholding its approval of a Statutory Auditor
hereunder). A Statutory Auditor may be removed for cause in accordance with the
applicable law. SOFTBANK shall also have the right, exercisable in its sole
discretion, to remove and, subject to E*TRADE's prior approval of the proposed
successor, replace a Statutory Auditor at any time, effective upon the delivery
of written notice to E*TRADE Japan, the Statutory Auditor to be removed and
E*TRADE. SOFTBANK shall also further have the right to appoint a successor
Statutory Auditor, subject to E*TRADE's prior approval of the proposed
successor, in the event a vacancy arises for any reason.
4.9 Shareholders' Meetings. Shareholders of E*TRADE Japan shall
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receive notice of each shareholders' meeting at least twenty (20) Business Days
before the scheduled date of such meeting. E*TRADE Japan shall have at least one
shareholders' meeting each calendar year. Such meeting will take place at such
time and place as is determined by the Board. Meetings shall be conducted in the
Japanese language (with English translation to the extent requested by E*TRADE),
and minutes of such meetings shall be prepared by E*TRADE Japan in Japanese and
English. In the event of conflict or controversy, the Japanese version of the
minutes shall control.
4.10 Voting. Each Party shall vote all Securities held by it (and
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shall cause all Securities held by its permitted transferees under Section 8) to
effect the provisions of this Section 4.
4.11 Annual Plan. E*TRADE Japan's President shall prepare, and the
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Board shall approve, an Annual Plan with respect to each fiscal year no later
than sixty (60) days prior to the commencement of the fiscal year. The Parties
shall cause E*TRADE Japan to conduct its operations in accordance with an Annual
Plan, which shall set forth certain financial performance goals, including
without limitation with respect to revenues, profits, return on net assets and
return on equity for the subject fiscal year.
4.12 Financial Statements and Accounting Records. Financial statements
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for E*TRADE Japan, including without limitation a balance sheet, income
statement, statement of cash flows and statement of shareholders' equity, shall
be submitted by E*TRADE Japan to each of the Parties (i) within sixty (60) days
after the end of each fiscal quarter for such quarter, and (ii) within ninety
(90) 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 will act as an independent auditor under the
Special Exceptions Law) retained by E*TRADE Japan and jointly selected by
SOFTBANK and E*TRADE. All financial statements shall be (i) prepared in
accordance with generally accepted accounting principles in Japan and (ii) in
reasonable detail and shall contain such financial data as SOFTBANK and E*TRADE
may deem necessary in order to keep each of them advised of E*TRADE Japan's
financial status (although quarterly statements need not include footnotes and
may be subject to year-end adjustments).
4.13 Right of Inspection. During office hours of E*TRADE Japan, and
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upon reasonable notice to E*TRADE Japan, each Party shall have full access to
all properties, books of account, and records of E*TRADE Japan, and each Party
shall have the right to make copies from such books and records at its own
expense. Any information obtained by
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the Parties through exercise of rights granted under this Section 4.13 shall, to
the extent constituting Confidential Information hereunder, be subject to the
confidentiality provisions set forth in Section 5.2.
5. ADDITIONAL COVENANTS
5.1 Cooperation. In accordance with and subject to the License
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Agreement, E*TRADE shall provide E*TRADE Japan with an exclusive license, under
all of its intellectual property rights (including its trademarks), sufficient
to conduct the Business. In addition, upon the terms and subject to the License
Agreement, E*TRADE shall provide E*TRADE Japan with such technical support as it
may reasonably require to localize E*TRADE's online securities trading
technology for the Japanese environment and to interconnect with the Tokyo Stock
Exchange and other Japanese exchanges, such technical support to be provided
without charge (except for reimbursement of reasonable out-of-pocket expenses).
In accordance with the Consulting Services Agreement, SOFTBANK shall provide
consulting services to E*TRADE Japan regarding (i) necessary Japanese regulatory
approvals required for the Business and (ii) strategic business opportunities
relating to the Business. The Parties agree that E*TRADE Japan shall pay a
royalty to E*TRADE in accordance with the License Agreement and a consulting fee
to SOFTBANK in accordance with the Consulting Services Agreement; provided,
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however, that if E*TRADE Japan fails to complete its initial public offering
by the fourth (4th) anniversary of the Launch Date, the royalty payable to
E*TRADE under the License Agreement and the consulting fee payable to SOFTBANK
under the Consulting Services Agreement shall each be adjusted to equal a
percentage of E*TRADE Japan's gross revenues agreed upon by the Parties and
approved by the Board, and shall be payable quarterly from and after the
fourth (4th) anniversary of the Launch Date.
5.2 Confidentiality.
---------------
(a) The Parties recognize that, in connection with the performance of
this Agreement, each Party (in such capacity, the "DISCLOSING PARTY") may
disclose Confidential Information to the other Party (the "RECEIVING PARTY").
The Receiving Party agrees (i) not to use any such Confidential Information for
any purpose other than in the performance of its obligations under this
Agreement or any Transaction Document and (ii) not to disclose any such
Confidential Information, except to its employees and (in the case of SOFTBANK,
employees of other members of the SOFTBANK GROUP who agree, in a writing
satisfactory to E*TRADE, to be bound hereby) who are reasonably required to have
the Confidential Information in connection herewith. The Receiving Party agrees
to take all reasonable measures to protect the secrecy and confidentiality of,
and avoid disclosure or unauthorized use of, the Disclosing Party's Confidential
Information.
(b) Each Party agrees that its obligations under this Section 5.2 are
necessary and reasonable to protect the other Party and its business, that any
violation of these provisions could cause irreparable injury to the other Party
for which money damages would be inadequate, and that, in addition to any other
remedies that may be available in law, the other Party shall be entitled to
obtain injunctive relief against the threatened breach of the provisions of this
Section 5.2 without the necessity of proving actual damages. The Parties agree
that the remedies set forth in this Section 5.2 are in addition to and in no way
preclude any other remedies or actions that may be available under this
Agreement.
10
5.3 Confidentiality of Agreement; Publicity. Each Party agrees that
---------------------------------------
the terms and conditions of this Agreement and the Transaction Documents shall
be treated as confidential information and that no reference thereto shall be
made thereto without the prior written consent of the other Party (which consent
shall not be unreasonably withheld or delayed) except (i) as required by
applicable disclosure laws, (ii) to its accountants, banks, financing sources,
lawyers and other professional advisors in connection with this Agreement,
provided that such parties undertake in writing (or are otherwise bound by rules
of professional conduct) to keep such information strictly confidential, (iii)
as necessary in connection with the enforcement of the Agreement between the
Parties, or (iv) pursuant to joint press releases of the Parties prepared in
good faith. The Parties will consult with each other, in advance, with regard to
the terms of all proposed press releases, public announcements and other public
statements with respect to the transactions contemplated hereby.
5.4 Noncompetition. During the term of this Agreement, neither Party
--------------
shall, directly or indirectly, offer online electronic investing services
permitting any Person residing in Japan to execute trades over the internet in
securities which are listed on a securities exchange or quoted on an interdealer
quotation system which is governed by the rules of a national securities
association pursuant to applicable law. In the event that this Agreement is
terminated due to a Party's breach (including, if SOFTBANK is the terminating
Party, a breach by E*TRADE under the License Agreement), the breaching Party's
obligations pursuant to this Section 5.4 shall remain in effect for a period of
twenty-four (24) months following such termination.
5.5 Regulatory Approvals. SOFTBANK shall be primarily responsible for
--------------------
assisting E*TRADE Japan to obtain such approvals, consents and similar actions
from Japanese governmental authorities, and E*TRADE shall be primarily
responsible for assisting E*TRADE Japan to obtain such approvals, comments and
similar actions from governmental authorities outside of Japan, as may be
necessary or appropriate in order to consummate the transactions contemplated
under the Transaction Documents. Each Party shall provide such assistance, at
the other Party's cost, as the other Party may reasonably request in connection
with such consents and approvals.
6. WARRANTIES AND REPRESENTATIONS OF THE PARTIES
6.1 Warranties of SOFTBANK. SOFTBANK hereby represents and warrants to
----------------------
E*TRADE that, as of the Effective Date, the following statements are and shall
be true and correct:
(a) Organization. SOFTBANK is a corporation duly organized and validly
------------
existing under the laws of Japan, and has the corporate power and authority
to enter into and perform this Agreement and the other Transaction
Documents to which it is a party.
(b) Permits; Approvals. SOFTBANK holds all licenses, permits,
------------------
certifications and other authorizations, the absence of which would have a
material adverse effect on its financial condition or business, and there has
been no default or violation under any such authorization and there is no
proceeding or investigation that is pending or, to SOFTBANK's knowledge,
threatened under which any such authorization may be revoked, terminated or
suspended.
(c) Authorization. All corporate action on the part of SOFTBANK
-------------
necessary for the authorization, execution and delivery of this Agreement and
the other
11
Transaction Documents to which it is a party and for the performance
of all of its obligations hereunder and thereunder has been taken, and this
Agreement and the other Transaction Documents to which it is a party when fully
executed and delivered, shall each constitute a valid, legally binding and
enforceable obligation of SOFTBANK.
(d) Government and Other Consents. Other than any licenses, permits,
-----------------------------
certifications or other authorizations which may be required in connection with
the Business, as to which SOFTBANK makes no representation, no consent,
authorization, license, permit, registration or approval of, or exemption or
other action by, any governmental or public body or authority, or any other
Person, is required in connection with SOFTBANK's execution, delivery and
performance of this Agreement and the other Transaction Documents to which it is
a party, or if any such consent is required, SOFTBANK has satisfied the
applicable requirements.
(e) Effect of Agreement. SOFTBANK's execution, delivery and
-------------------
performance of this Agreement and the other Transaction Documents to which it is
a party will not (i) violate the Articles of Incorporation of SOFTBANK or any
provision of any law, statute, rule or regulation to which SOFTBANK is subject,
(ii) violate any judgment, order, writ, injunction or decree of any court
applicable to SOFTBANK, (iii) have any effect on the compliance of SOFTBANK with
any applicable licenses, permits or authorizations which would materially and
adversely affect SOFTBANK, (iv) result in the breach of, give rise to a right of
termination, cancellation or acceleration of any obligation with respect to
(presently or with the passage of time), or otherwise be in conflict with any
term of, or affect the validity or enforceability of, any agreement or other
commitment to which SOFTBANK is a party and which would materially and adversely
affect SOFTBANK or (v) result in the creation of any lien, pledge, mortgage,
claim, charge or encumbrance upon any assets of SOFTBANK; provided, however,
--------
that regulatory approvals may be required in connection with the conducting the
Business with respect to certain securities and SOFTBANK makes no representation
with respect to any such approvals pending the Parties' further review of
regulatory issues in connection with the Business.
(f) Litigation. There are no actions, suits or proceedings pending or,
----------
to SOFTBANK's knowledge, threatened, against SOFTBANK before any court or
governmental agency which question SOFTBANK's right to enter into or perform
this Agreement or the other Transaction Documents to which it is a party, or
which question the validity of this Agreement or any of the other Transaction
Documents.
(g) Disclosure. No representation or warranty by SOFTBANK contained in
----------
this Agreement or in any other Transaction Document to which it is a party, and
no exhibit, writing or other instrument required to be furnished by SOFTBANK
pursuant hereto contains any untrue statement of a material fact or omits any
material fact necessary in order to make the statements and information
contained therein not misleading.
6.2 Warranties of E*TRADE. E*TRADE hereby represents and warrants to
---------------------
SOFTBANK that, as of the Effective Date, the following statements are and shall
be true and correct:
(a) Organization. E*TRADE is a corporation duly organized and validly
------------
existing under the laws of Delaware, and E*TRADE Securities, Inc. ("E*TRADE
SECURITIES") is a corporation duly organized and validly existing under the laws
of California.
12
E*TRADE has the corporate power and authority to enter into and perform this
Agreement and the other Transaction Documents to which it is a party.
(b) Permits; Approvals. Each of E*TRADE and E*TRADE Securities hold
------------------
all licenses, permits, certifications and other authorizations, including
without limitation any such authorizations required under U.S. federal
securities laws, the absence of which would have a material adverse effect on
the financial condition or business of E*TRADE or E*TRADE Securities, as the
case may be, and there has been no default or violation under any such
authorization and there is no proceeding or investigation that is pending or, to
E*TRADE's knowledge, threatened under which any such authorization may be
revoked, terminated or suspended.
(c) Authorization. All corporate action on the part of E*TRADE
-------------
necessary for the authorization, execution and delivery of this Agreement and,
the other Transaction Documents to which it is a party and for the performance
of all of its obligations hereunder and thereunder has been taken, and this
Agreement, the License Agreement and the other Transaction Documents to which it
is a party, when fully executed and delivered, shall each constitute a valid,
legally binding and enforceable obligation of E*TRADE.
(d) Government and Other Consents. Other than any licenses, permits,
-----------------------------
certifications or other authorizations which may be required from regulatory
authorities in Japan in connection with the Business, as to which E*TRADE makes
no representation, no consent, authorization, license, permit, registration or
approval of, or exemption or other action by, any governmental or public body or
authority, or any other Person, is required in connection with E*TRADE's
execution, delivery and performance of this Agreement or the other Transaction
Documents to which it is a party, or if any such consent is required, E*TRADE
has satisfied any applicable requirements.
(e) Effect of Agreement. E*TRADE's execution, delivery and performance
-------------------
of this Agreement and the other Transaction Documents to which it is a party
will not (i) violate the Articles of Incorporation of E*TRADE or any provision
of any law, statue, rule or regulation to which it is subject, (ii) violate any
judgment, order, writ, injunction or decree of any court applicable to E*TRADE,
(iii) have any effect on the compliance of E*TRADE with any applicable licenses,
permits or authorizations which would materially and adversely affect E*TRADE,
(iv) result in the breach of, give rise to a right of termination, cancellation
or acceleration of any obligation with respect to (presently or with the passage
of time), or otherwise be in conflict with, any term of, or affect the validity
or enforceability of any agreement or other commitment to which E*TRADE is a
party and which would materially and adversely affect E*TRADE, or (v) result in
the creation of any lien, pledge, mortgage, claim, charge or encumbrance upon
any assets of E*TRADE; provided, however, that Japanese regulatory approvals may
--------
be required in connection with the conducting the Business with respect to
certain securities and E*TRADE makes no representation with respect to any such
approvals pending the Parties' further review of regulatory issues in connection
with the Business.
(f) Litigation. There are no actions, suits or proceedings pending or,
----------
to E*TRADE's knowledge, threatened, against E*TRADE before any court or
governmental agency which question E*TRADE's right to enter into or perform this
Agreement or other Transaction Documents to which it is a party, or which
question the validity of this Agreement or any of the other Transaction
Documents.
13
(g) Disclosure. No representation or warranty by E*TRADE contained in
----------
this Agreement or any other Transaction Document to which it is a party, and no
exhibit, writing or other instrument required to be furnished pursuant hereto
contains any untrue statement of a material fact or omits any material fact
necessary in order to make the statements and information contained therein not
misleading.
7. TERM AND TERMINATION
7.1 Term. This Agreement shall be effective as of the Effective Date
----
and shall continue in effect until and unless terminated pursuant to Section
7.2.
7.2 Termination. This Agreement may be terminated as follows:
-----------
(a) Upon the Parties' mutual written agreement.
(b) If SOFTBANK or E*TRADE fails to perform, in any material respect,
any of its material obligations hereunder or any of the other Transaction
Documents, and if such default continues for a period of thirty (30) days after
the date the defaulting Party first receives written notice of such default from
the other Party, then E*TRADE (if SOFTBANK is the defaulting Party) or SOFTBANK
(if E*TRADE is the defaulting Party) shall have the right to terminate this
Agreement effective immediately upon written notice to the defaulting Party at
any time after such thirty (30)-day period.
(c) SOFTBANK shall have the right to terminate this Agreement,
effective immediately upon written notice to E*TRADE, in the event that E*TRADE
Japan has elected to terminate the License Agreement in accordance with its
terms. E*TRADE shall have the right to terminate this Agreement effective
immediately upon written notice to SOFTBANK in the event that E*TRADE has
elected to terminate the License Agreement in accordance with its terms.
(d) Either E*TRADE or SOFTBANK shall have the right to terminate this
Agreement, effective immediately upon written notice to the other Party and
E*TRADE, in the event that E*TRADE (where SOFTBANK is the Party giving notice)
or SOFTBANK (where E*TRADE is the Party giving notice) is dissolved, liquidated
or declared bankrupt or a voluntary or involuntary bankruptcy filing is made by
such Party.
7.3 Effect. Upon termination of this Agreement, the Parties shall
------
negotiate in good faith a possible purchase by one Party of all outstanding
Securities held by the other Party or the sale of E*TRADE Japan to a third
party. In the event that, notwithstanding their good faith negotiations, the
Parties are unable to agree upon one Party's purchase of the other Party's
Securities or the sale of E*TRADE Japan to a third party within thirty (30) days
of the notice of termination, the Parties shall cooperate to cause E*TRADE Japan
to be liquidated as promptly as practical in accordance with applicable law. The
rights and obligations of the Parties under Sections 5.2, 5.3, 5.4 (to the
extent provided therein), this Section 7.3, and Sections 7.4, 7.5, 9 and 10
shall survive any termination of this Agreement.
7.4 Return of Confidential Information. Upon the termination of this
----------------------------------
Agreement, each Party shall at its cost promptly return to the disclosing Party
any and all documents and materials constituting or containing Confidential
Information of the disclosing Party which are in the possession or control of
the receiving Party, or if requested by the disclosing Party, shall destroy such
documents and materials and certify such destruction in writing.
14
7.5 Continuing Liability. Termination of this Agreement for any reason
--------------------
shall not release either Party from any liability or obligation which has
already accrued as of the effective date of such termination, and shall not
constitute a waiver or release of, or otherwise be deemed to prejudice or
adversely affect, any rights, remedies or claims, whether for damages or
otherwise, which a Party may have hereunder, at law, equity or otherwise or
which may arise out of or in connection with such termination.
8. TRANSFER RESTRICTIONS
8.1 General Restriction. Subject to Section 8.2, Each Party agrees to
--------
hold its Securities during the Term and, except as otherwise specifically
provided in this Agreement or agreed to in writing by the other Party, to not
sell, transfer, assign, hypothecate or in any way alienate any of such Party's
Securities or any right or interest therein except to an Affiliate controlled by
such Party, provided, however, that transfers to Affiliates in which the
--------
transferring Party holds, directly or indirectly, an equity interest of less
than seventy percent (70%) shall require the non-transferring Party's prior
written consent, which consent shall not be unreasonably withheld (and the non-
transferring Party in any case shall deliver its response regarding the proposed
transfer to the transferring Party within five (5) Business Days of receipt of
notice of the proposed transfer). In the case of any transfer permitted
hereunder (including Section 8.2), the transferring Party shall deliver to the
other Party (i) at least ten (10) Business Days prior to such transfer, a
written notice stating its intention to transfer the Securities to be
transferred, the name of the transferee Affiliate, the number of Securities to
be transferred, and the price and other terms and conditions of the transfer,
and (ii) on or prior to the effective date of the transfer and in a form
acceptable to the other Party and its counsel, the transferee's written
acknowledgement of and agreement to be bound by, and to vote and act in respect
of the transferred Securities at all times in accordance with, the terms of this
Agreement.
8.2 Transfers to Party Employees. Notwithstanding the provisions of
----------------------------
Section 8.1, each Party shall, upon written notice to E*TRADE Japan and the
other Party, have the right to transfer, to such Party's employees, such number
of its Securities as it may elect from time to time. Any such transfers shall
not affect the transferring Party's ETJ Interest for purposes of Section 3.6 or
Section 4.2.
9. INCIDENTAL AND CONSEQUENTIAL DAMAGES
NEITHER PARTY NOR ITS AFFILIATES WILL BE LIABLE TO THE OTHER PARTY UNDER
ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR ANY INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS)
WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT.
10. GENERAL PROVISIONS
10.1 Governing Law; Dispute Resolution. The validity, construction and
---------------------------------
enforceability of this Agreement shall be governed and construed in accordance
with the laws of Japan. All disputes between the Parties arising out of this
Agreement (and not including any dispute under any other Transaction Document,
which shall be resolved pursuant to the terms thereof) shall be settled by the
Parties amicably through good faith discussions upon the written request of
either Party. In the event that any such dispute cannot be resolved thereby
within a period of sixty (60) days after such notice has been given, such
dispute shall
15
be finally settled by arbitration in Tokyo, Japan, using the English language,
and in accordance with the rules then in effect of the Japan Commercial
Arbitration Association. The arbitrator(s) shall have the authority to grant
specific performance, and to allocate between the Parties the costs of
arbitration in such equitable manner as the arbitrator(s) may determine. The
prevailing party in the arbitration shall be entitled to receive reimbursement
of its reasonable expenses incurred in connection therewith, including (if
E*TRADE is the prevailing party) costs of travel to, and meals and hotel
accommodations in, Japan. 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.
10.2 Notices and Other Communications. Any and all notices, requests,
--------------------------------
demands and other communications required or otherwise contemplated to be made
under this Agreement shall be in writing and in English and shall be provided by
one or more of the following means and shall be deemed to have been duly given
(a) if delivered personally, when received, (b) if transmitted by facsimile, on
the first (1st) Business Day following receipt of a transmittal confirmation, or
(c) if by international courier service, on the fourth (4th) Business Day
following the date of deposit with such courier service, or such earlier
delivery date as may be confirmed to the sender by such courier service. All
such notices, requests, demands and other communications shall be addressed as
follows:
If to SOFTBANK:
SOFTBANK CORP.
00-0 Xxxxxxxxxx-Xxxxxxxxxxx
Xxxx-xx, Xxxxx 000-0000
Attention: Xx. Xxxxxxxxx Xxxxx
Xx. Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxx, Esq.
Telephone: 00-0-0000-0000
Facsimile: 00-0-0000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx LLP
AIG Building, 7th Floor
0-0-0 Xxxxxxxxxx,
Xxxxxxx-xx, Xxxxx 000-0000, Xxxxx
Attention: Xxx X. Xxxxxx, Esq.
Xxxxxxx X. Xxxxx, Esq.
Telephone: 00-0-0000-0000
Facsimile: 00-0-0000-0000
16
If to E*TRADE:
E*TRADE Group, Inc.
Four Embarcadero Place
0000 Xxxx Xxxx
Xxxx Xxxx, XX 00000
X.X.X.
Attention: Mr. Xxxxxxx Xxxxxxxx
Xx. Xxxxxxx X. Xxxxxxx
Telephone: 0-000-000-0000
Facsimile: 0-000-000-0000
with a copy to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
Two Embarcadero Place
0000 Xxxx Xxxx
Xxxx Xxxx, XX 00000
X.X.X.
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
Xxxxxx X. Mo, Esq.
Telephone: 0-000-000-0000
Facsimile: 0-000-000-0000
or in each case to such other address or facsimile number as a Party may have
furnished to the other Party in writing.
10.3 Language. This Agreement is in the English language
--------
only, which language shall be controlling in all respects, and all versions
hereof in any other language shall be for accommodation only and shall not be
binding upon the Parties hereto. All communications and notices to be made or
given pursuant to this Agreement shall be in the English language.
10.4 Severability. If any provision in this Agreement shall
------------
be found or be held to be invalid or unenforceable (including without limitation
objections by the Japanese Fair Trade Commission) then the meaning of said
provision shall be construed, to the extent feasible, so as to render the
provision enforceable, and if no feasible interpretation would save such
provision, it shall be severed from the remainder of this Agreement which shall
remain in full force and effect unless the severed provision is essential and
material to the rights or benefits received by any Party. In such event, the
Parties shall use best efforts to negotiate, in good faith, a substitute, valid
and enforceable provision or agreement which most nearly affects the Parties'
intent in entering into this Agreement.
10.5 References; Subject Headings. Unless otherwise
----------------------------
indicated, references to Sections and Exhibits herein are to Sections of, and
Exhibits to, this Agreement. The subject headings of the Sections of this
Agreement are included for the purpose of convenience of reference only, and
shall not affect the construction or interpretation of any of its provisions.
10.6 Further Assurances. The Parties shall each perform
------------------
such acts, execute and deliver such instruments and documents, and do all such
other things as may be reasonably necessary to accomplish the transactions
contemplated in this Agreement.
17
10.7 Expenses. Each of the Parties will bear its own costs
--------
and expenses, including without limitation fees and expenses of legal counsel,
accountants, brokers, consultants and other representatives used or hired in
connection with the negotiation and preparation of this Agreement and
consummation of the transactions contemplated hereby. All such expenses
incurred by E*TRADE Japan shall be borne by E*TRADE Japan to the maximum extent
permitted by applicable law including, without limitation, expenses relating to
the formation of E*TRADE Japan, any transfer taxes for transfer of E*TRADE Japan
stock to the Parties, registration charges, taxes, fees and expenses relating to
required governmental or regulatory approvals, notary fees and legal fees and
expenses.
10.8 No Waiver. No waiver of any term or condition of this
---------
Agreement be valid or binding on a Party unless the same shall have been
mutually assented to in writing by all Parties. The failure of a Party to
enforce at any time any of the provisions of this Agreement, or the failure to
require at any time performance by one or both of the other Parties of any of
the provisions of this Agreement, shall in no way be construed to be a present
or future waiver of such provisions, nor in any way affect the ability of a
Party to enforce each and every such provision thereafter.
10.9 Entire Agreement; Amendments. The terms and conditions
----------------------------
contained in this Agreement (including the Exhibits hereto) and the Transaction
Documents constitute the entire agreement between the Parties and supersede all
previous agreements and understandings, whether oral or written, between the
Parties with respect to the subject matter hereof. No agreement or
understanding amending this Agreement shall be binding upon any Party unless set
forth in a written document which expressly refers to this Agreement and which
is signed and delivered by duly authorized representatives of each Party.
10.10 Assignment. Neither Party shall assign this Agreement
----------
(i) without the other Party's prior written consent, and (ii) only in such case
if the assignee agrees in writing to be bound irrevocably and unconditionally by
the terms hereof, provided, however, that the assigning Party shall remain
--------
liable for the assignee's performance of its obligations hereunder. This
Agreement shall inure to the benefit of, and shall be binding upon, the Parties
and their respective permitted successors and assigns.
10.11 No Agency. The Parties are independent contractors.
---------
Nothing contained herein or done in pursuance of this Agreement shall constitute
any Party the agent of any other Party for any purpose or in any sense
whatsoever.
10.12 No Beneficiaries. Nothing herein express or implied,
----------------
is intended to or shall be construed to confer upon or give to any person, firm,
corporation or legal entity, other than the Parties and their Affiliates who
hold Securities (and, in the case of SOFTBANK, any other member of the SOFTBANK
Group), any interests, rights, remedies or other benefits with respect to or in
connection with any agreement or provision contained herein or contemplated
hereby.
10.13 Counterparts. This Agreement may be executed in any
------------
number of counterparts, and each counterpart shall constitute an original
instrument, but all such separate counterparts shall constitute only one and the
same instrument.
18
IN WITNESS WHEREOF, the Parties have caused their respective duly
authorized representatives to execute this Agreement as of the Effective Date.
SOFTBANK CORP. E*TRADE GROUP, INC.
------------------------------------------- -----------------------------------
Xxxxxxxx X. Xxxxxxxx
Xxxxxxxxx Xxx President & CEO
President & CEO
19
EXHIBIT 1.3
E*TRADE Japan Articles of Incorporation
EXHIBIT 1.11
Consulting Services Agreement
EXHIBIT 1.22
License Agreement
EXHIBIT 1.27
Promissory Note
EXHIBIT 3.2
SOFTBANK Group
EXHIBIT 4.6
Actions Requiring E*TRADE Consent
