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EXHIBIT 10.41
JOINT VENTURE AGREEMENT
by and between
SOFTBANK CORP.
and
E-LOAN, INC.
MARCH 31, 1999
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JOINT VENTURE AGREEMENT
This JOINT VENTURE AGREEMENT ("AGREEMENT") is made as of March 31, 1999,
by and between E-LOAN, Inc., a Delaware corporation ("E-LOAN"), and SOFTBANK
CORP., a Japanese corporation ("SOFTBANK"). E-LOAN 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-LOAN is an electronic commerce company serving consumers and the
home loan industry through a comprehensive Internet loan marketplace in which
consumers can, by accessing an online site, identify appropriate loan providers
and lenders can identify interested consumers.
C. The Parties desire to form a joint venture to pursue the Business, as
hereafter defined.
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 is under common control with any such
Controlled Person, in each case for so long as such control continues; provided,
however, that for purposes of Section 3.2(a) Affiliates of SOFTBANK shall
include Persons in which SOFTBANK owns, directly or indirectly, at least thirty
percent (30%) of the outstanding voting shares, regardless of whether such
control actually exists. For purposes of this definition and the definition of
Fund in Section 1.20, "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 the
Company's goals and procedures for personnel, technical, financial,
administrative, marketing, and other significant activities for the Company's
next succeeding fiscal year, as approved each year and revised from time to time
by the Board.
1.3 "APPLICABLE LAW" means, as to any Person, any statute, law, rule,
regulation, directive, treaty, judgment, order, decree or injunction of any
Governmental Authority that is applicable to or binding upon such Person or any
of its properties.
1.4 "ARTICLES" means the articles of incorporation of the Company in the
form of attached Exhibit 1.4, as amended from time to time.
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1.5 "BOARD" means the board of directors of the Company.
1.6 "BUSINESS" means the business of the Company as described in the
Articles, from time to time.
1.7 "BUSINESS DAY" means a day on which commercial banks in California
and Japan are generally open to conduct their regular banking business.
1.8 "CLOSING DATE" is defined in Section 3.2(a).
1.9 "COMMERCIAL CODE" means the Commercial Code of Japan, as amended and
in effect from time to time.
1.10 "COMMON STOCK" means common stock of the Company as authorized by
the Articles.
1.11 "COMPANY" is defined in Section 3.1.
1.12 "COMPANY INTEREST" means, as to any Person, the percentage interest
represented by the Securities then held by such Person divided by all then
outstanding Securities (on an as-converted to Common Stock basis).
1.13 "CONFIDENTIAL INFORMATION" is defined in Section 5.2(a).
1.14 "CONSULTING SERVICES AGREEMENT" means the Consulting Services
Agreement to be entered into between SOFTBANK and the Company on the Closing
Date in the form of attached Exhibit 1.14, as amended from time to time.
1.15 "CORPORATE AUDITOR" means a corporate auditor (Kansa-yaku) of the
Company with the powers and duties as specified in the Commercial Code.
1.16 "DIRECTOR" means a director of the Company with the powers and
duties as specified in the Commercial Code and the Articles.
1.17 "DISCLOSING PARTY" is defined in Section 5.2(a).
1.18 "EFFECTIVE DATE" means the date of this Agreement.
1.19 "ESTABLISHMENT DATE" is defined in Section 3.1.
1.20 "FUND" means any investment fund controlled by SOFTBANK or any
SOFTBANK Affiliate.
1.21 "GOVERNMENTAL AUTHORITY" means any domestic or foreign government,
governmental authority, court, tribunal, agency or other regulatory,
administrative or judicial agency, commission or organization, and any
subdivision, branch or department of any of the foregoing.
1.22 "LAUNCH DATE" is defined in Section 3.1.
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1.23 "LICENSE AGREEMENT" means the License Agreement to be entered into
between E-LOAN and the Company on the Closing Date in the form of attached
Exhibit 1.23, as amended from time to time.
1.24 "PARTNERS" means such Persons as SOFTBANK deems strategically
important to the success of the Company 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, Governmental Authority,
partnership, firm, corporation, or other business association.
1.27 "PRESIDENT" means the president of the Company with the powers and
duties as specified in the Commercial Code and the Articles.
1.28 "RECEIVING PARTY" is defined in Section 5.2(a).
1.29 "SECURITIES" means all outstanding shares of Common Stock, and any
other equity securities of the Company or instruments exercisable for or
convertible into Common Stock.
1.30 "SB FINANCE" means SOFTBANK Finance Corporation, a wholly-owned
Japanese subsidiary of SOFTBANK.
1.31 "SOFTBANK GROUP" is defined in Section 3.2(a).
1.32 "SPECIAL EXCEPTIONS LAW" means the law pertaining to Special
Exceptions to the Commercial Code concerning Auditors of Companies (Kabushiki
Kaisha).
1.33 "TERRITORY" means Japan and the Republic of South Korea.
1.34 "TERM" is defined in Section 7.1.
1.35 "TRANSACTION DOCUMENTS" means this Agreement, the Articles, the
License Agreement, and the Consulting Services Agreement.
1.36 "TRANSFERRED SHARES" is defined in Section 3.2(a).
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. The Business will be limited initially to (1) developing,
marketing and providing an online loan and mortgage marketplace for consumers
and the loan and mortgage industry in Japan and the Republic of Korea, including
developing localized versions of the E-LOAN's U.S. services and providing
information about the availability and terms of loans for distribution to end
users in the Territory and providing an electronic means to apply for such loans
and complete the loan process and (2) activities incidental thereto.
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3. ESTABLISHMENT AND CAPITALIZATION OF THE COMPANY
3.1 Establishment. The Parties agree that the joint venture contemplated
by this Agreement shall be carried out exclusively through a newly-formed
Japanese kabushiki kaisha initially established by SOFTBANK (the "COMPANY"). The
Company's corporate name shall be "E-Loan Kabushiki Kaisha" in Japanese and
"E-Loan Japan K.K." in English. The Parties shall use commercially reasonable
efforts to cause the Establishment Date to occur on or before May 1, 1999 and
the Launch Date to occur on or before a date to be agreed upon by the Parties
after consultations with Governmental Authorities in the Territory. For the
purposes of this Agreement, "ESTABLISHMENT DATE" means the date on which the
Company is established in accordance with the Commercial Code and "LAUNCH DATE"
means the date on which the Company commences commercial operations.
3.2 Capitalization.
(a) Initial Capitalization. The Company shall, as of the
Establishment Date, have authorized capital stock consisting of one class of
shares designated as Common Stock with the rights set forth in the Articles. The
Articles shall initially provide for 40,000 authorized shares of Common Stock
with par value of Yen50,000 per share. At least five (5) Business Days prior to
the Closing Date, SOFTBANK shall notify E-LOAN in writing of the SOFTBANK
Affiliates, Funds and Partners which SOFTBANK proposes to include among the
initial SOFTBANK shareholders of the Company (the "SOFTBANK GROUP"). The
Company's initial equity shall be funded as follows:
(i) SOFTBANK Initial Subscription. On or prior to the
Establishment Date, SOFTBANK shall subscribe for 10,000 shares of Common Stock,
representing a one-hundred-percent (100%) Company Interest, for an aggregate
purchase price of Yen500,000,000.
(ii) E-LOAN Purchase. On a date within fifteen (15) days
after the Establishment Date mutually agreed by the Parties (the "CLOSING
DATE"), SOFTBANK shall (x) sell to E-LOAN, and E-LOAN shall purchase from
SOFTBANK, 4,000 shares of Common Stock representing a forty-percent (40%)
Company Interest (the "TRANSFERRED SHARES") for an aggregate purchase price of
Yen200,000,000 and (y) sell to the members of the SOFTBANK Group (other than
SOFTBANK) up to 6,000 shares of Common Stock, subject in each case to the
SOFTBANK Group member agreeing in writing to be bound by the terms hereof.
SOFTBANK covenants that, at all times through the Closing Date, SOFTBANK shall
own the Transferred Shares beneficially and of record, free and clear of all
adverse claims.
(b) Certain Deliveries. On or before the Closing Date, and as a
condition to the purchase and sale of the Transferred Shares:
(i) the Establishment Date shall have occurred;
(ii) SOFTBANK shall have executed and delivered the
Consulting Services Agreement to the Company;
(iii) The Parties shall have agreed on the royalty rate
payable to E-LOAN under the License Agreement and E-LOAN shall have executed and
delivered the License Agreement to the Company;
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(iv) SOFTBANK shall have caused the Company to (A) execute
and deliver the License Agreement to E-LOAN and (B) execute and deliver the
Consulting Services Agreement to SOFTBANK; and
(v) each Party shall have received one original of each of
the fully executed Transaction Documents.
(c) Acknowledgment of Agreement; Delivery of Share Certificates.
Promptly after the Closing Date, SOFTBANK shall cause the Company (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-LOAN,
to promptly issue and deliver to the SOFTBANK Group and to E-LOAN share
certificates representing the shares of Common Stock purchased pursuant to this
Section 3.2.
3.3 Preemptive Rights; Financial Assistance.
(a) Preemptive Rights. Each Party shall at all times have a
preemptive right to purchase a pro rata portion (equal to such Party's then
current Company Interest) of any new issuances of Common Stock or other
Securities (other than issuances pursuant to an incentive stock option plan
established pursuant to Section 3.4). The Company agrees to notify each Party in
writing of any proposed new issuance of Securities to which such preemptive
rights apply. Each Party shall notify each other Party and the Company, within
ten (10) Business Days after receipt of such notice, of its decision to
participate in any proposed new issuance of Securities (failure to so respond
during such period constituting an election not to participate). In the event
that a Party elects not to subscribe for such Party's full pro rata share of any
newly issued Securities, the other Party shall be entitled to purchase any of
the unsubscribed Securities. All new issuances of shares of Common Stock
pursuant to this Section 3.3 shall be made at a price equal to or greater than
par. The preemptive rights granted pursuant to this Section 3.3(a) shall cease
to be of any further force or effect upon the closing of an initial public
offering of Securities.
(b) Financial Assistance. The Board may, by written notice to the
Parties pursuant to the terms of this Agreement, request that the Parties
provide additional financial assistance to the Company, including in the form of
credit support or loans, and, in such event, if such Party agrees to provide
such additional financial assistance (either directly or through its designees
to the Board), such Party shall make such financial assistance available to the
Company pro rata in accordance with its respective Company Interest and the
Company Interests of all Parties so approving such financial assistance.
3.4 Incentive Stock Option Plan. The Parties agree that an incentive
stock option plan providing for reasonable grants of incentive stock options to
the employees of the Company, E-LOAN and SOFTBANK 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 mutually
agreed by the Parties. The Securities 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.
3.5 SOFTBANK Group Company Interest. The Parties acknowledge that it is
SOFTBANK's intent that, subject to dilution in the event that it elects not to
exercise its
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preemptive rights pursuant to Section 3.3(a), the SOFTBANK Group's Company
Interest (on a fully-diluted basis taking into account any shares reserved for
issuance pursuant to the Stock Option Plan) shall, at all times prior to
Company's initial public offering, be not less than fifty and one-tenth percent
(50.1%).
3.6 Additional Party. The Parties acknowledge that, in order for the
Company to effectively pursue the Business in the Territory, it may be necessary
or desirable to bring one or more additional Persons into the joint venture
relationship established hereunder (each an "ADDITIONAL PARTY"). Notwithstanding
any provision hereof to the contrary, SOFTBANK may, in its discretion, sell up
to a total of [*] shares of Common Stock to one or more Additional Parties
provided that, in each case, SOFTBANK provides E-LOAN with notice of the sale.
If E-LOAN has not, prior to [*], expanded its U.S. service to include electronic
means to apply for [*] and complete the [*] processing, then SOFTBANK shall have
the right to propose one or more Additional Parties that provide such services
and E-LOAN will offer to sell such Additional Parties either (i) [*] shares of
Common Stock or (ii) such lesser number of shares of Commons Stock as would
leave E-LOAN, after the closing of the proposed sales, with [*] Company
Interest, at a price not exceeding the sum of (A) Yen50,000/share plus (B)
interest on the total amount paid by E-LOAN for the shares being transferred
calculated at a rate of five percent (5%) per annum and the actual number of
days elapsed from the Closing Date to and including the closing of the sale of
such shares to the Additional Parties. Any such sale by SOFTBANK or E-LOAN to an
Additional Party shall be subject to the Additional Party's written agreement to
be bound by the terms hereof. Upon the closing of any such sale, each Additional
Party shall be deemed a Party for all purposes hereof.
4. OPERATION AND MANAGEMENT OF THE COMPANY
4.1 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 of this Agreement and the other Transaction Documents, including, without
limitation, to vote all Securities held by it (and to cause all Securities held
by its permitted transferees under Section 8 to be voted) to effect the terms
hereof.
4.2 Board of Directors. The Company will be managed by the Board in
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 appointed by
SOFTBANK and two (2) of whom shall be appointed by E-LOAN. If E-LOAN's Company
Interest at any time decreases to less than twenty percent (20%), the Parties
shall cause the Board constituency to be adjusted within thirty (30) Business
Days of such decrease so that only one (1) Director is appointed by E-LOAN.
4.3 Removal; Reappointment of Directors. Any Director may be removed 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 the Company, 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 appointed 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. Directors
*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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may attend Board meetings in person or by any other means of attendance
permitted under the Commercial Code, provided, however, that (a) the Board shall
meet at least once during each semi-annual fiscal period and (b) written notice
of all Board meetings shall be given not less than ten (10) Business Days in
advance of each meeting (which ten (10) Business Day period may be shortened by
written waiver of Directors or actual attendance by Directors, without
objection, at a Board meeting). Board meetings shall be conducted in the
Japanese language (with English interpretation) and minutes of such meetings
shall be prepared by the Company in Japanese and English and distributed to each
Director promptly following each meeting. Proposals or reports brought before
any Board meeting for information or action (including without limitation the
Company's annual and semi-annual financial statements) shall be prepared in
Japanese and English (provided that E-LOAN shall bear the expense of translating
any financial statements into English).
4.5 Board Quorum; Resolutions. A quorum shall be deemed to exist for
purposes of Board actions so long as at least three (3) Directors are present.
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-LOAN Approval Rights. Notwithstanding any other provision of this
Agreement, in addition to approval by the Board, E-LOAN's prior written approval
(either in the form of a written consent or in the form of E-LOAN's Director(s)
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. In the event the
actions identified in Exhibit 4.6 are required by the Commercial Code to be
approved by the Company's shareholders, then authorization shall require an
affirmative vote of each of SOFTBANK and E-LOAN in their capacities as
shareholders of the Company.
4.7 Representative Director. The Company's day-to-day operations will be
managed by the President, who shall be the Representative Director of the
Company in accordance with the Articles. The President shall be elected by the
Board from among the Directors nominated by SOFTBANK pursuant to Section 4.2.
SOFTBANK 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 E-LOAN.
4.8 Corporate Auditors. The Company shall have three (3) Corporate
Auditors, each of whom shall be appointed by SOFTBANK (one (1) of whom shall
serve on a full-time basis). A Corporate Auditor may be removed for cause in
accordance with Applicable Law. SOFTBANK shall also have the right, exercisable
in its sole discretion, to remove and replace any Corporate Auditor at any time,
effective upon the delivery of written notice to the Company, the Corporate
Auditor to be removed and E-LOAN.
4.9 Shareholders' Meetings. Shareholders of the Company shall receive
notice of each shareholders' meeting at least thirty (30) calendar days before
the scheduled date of such meeting. The Company shall have at least one
shareholders' meeting each calendar year. Such meeting will take place in Tokyo,
Japan at such time and place as is determined by the Board. Meetings shall be
conducted in the Japanese language (with English interpretation), and minutes of
such meetings shall be prepared by the Company in Japanese and English.
4.10 Annual Plan. The Company's President shall prepare, and the Board
shall approve, an Annual Plan with respect to each fiscal year of the Company no
later than sixty
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(60) days prior to the commencement of the fiscal year, provided, however, that
the initial Annual Plan shall be approved promptly following the Effective Date
and shall cover the period from the Establishment Date until the end of the
first full fiscal year of the Company. The Board shall cause the Company to
conduct its operations in accordance with the Annual Plan, 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.
4.11 Financial Statements and Accounting Records. Financial statements
for the Company, including, without limitation, a balance sheet, income
statement, statement of cash flows and statement of shareholders' equity, shall
be submitted by the Company to each of the Parties (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 will act as an
independent auditor under the Special Exceptions Law) retained by the Company,
selected by SOFTBANK and approved by E-LOAN, which approval shall not be
unreasonably withheld. All financial statements shall be prepared in accordance
with generally accepted accounting principles in Japan and in reasonable detail,
and shall contain such financial data as SOFTBANK and E-LOAN may deem necessary
in order to keep the Parties 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 E-LOAN's request, provide E-LOAN with such
financial information as E-LOAN may reasonably deem necessary for purposes of
complying with its periodic reporting obligations under U.S. securities law and
shall cooperate with E-LOAN in connection therewith, including cooperating with
the Company's accounting firm in preparing quarterly financial statements
requested by E-LOAN; provided, that E-LOAN shall bear any costs incurred in
preparing or providing such information, including, without limitation, in
preparing quarterly financial statements for the Company and reconciling the
Company's financial statements with U.S. generally accepted accounting
principles for such purposes.
4.12 Right of Inspection. During the regular office hours of the
Company, and upon reasonable notice to the Company, each Party that maintains at
least a twenty percent (20%) Company Interest shall have (a) full access to all
properties, books of account, and records of the Company, and (b) the right to
make copies from such books and records at its own expense. Any information
obtained by the Parties through exercise of rights granted under this Section
4.12 shall, to the extent constituting Confidential Information hereunder, be
subject to the confidentiality provisions set forth in Section 5.2.
4.13 Translations. The Company shall prepare English translations of any
minutes of any Board or shareholder meetings initially prepared in Japanese.
Such translations shall be prepared by either the Company's own staff, or an
outside translation service, at the Company'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.
5. ADDITIONAL COVENANTS
5.1 Cooperation. In accordance with the License Agreement, E-LOAN shall
(a) provide the Company with an exclusive license, under all of its intellectual
property rights (including, without limitation, its software, operations and
procedures, brands, trademarks, patents and know-how), sufficient to conduct the
Business and (b) make a sufficient number
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of its personnel available to provide the Company with such technical support as
it may reasonably require to localize E-LOAN's online technology for use in the
Territory, all as provided in the License Agreement. In accordance with the
Consulting Services Agreement, SOFTBANK shall provide consulting services to the
Company regarding (a) necessary Japanese regulatory approvals required for the
Business, (b) strategic business opportunities relating to the Business and (c)
the staffing, management and operation of the Company, all as provided in the
Consulting Services Agreement. Except for reimbursement of reasonable
out-of-pocket expenses incurred in connection with the foregoing services, the
Company shall not be required to pay any royalties or other fees other than as
provided in the License Agreement or the Consulting Services Agreement;
provided, however, that if the Company fails to complete its initial public
offering prior to the fourth (4th) anniversary of the Effective Date, royalties
shall be payable under the License Agreement and consulting fees shall be
payable under the Consulting Services Agreement, in an equal amount, calculated
as a percentage of the Company's gross revenues agreed upon by the Parties and
approved by the Board, such amounts to be payable quarterly from and after the
fourth (4th) anniversary of the Effective 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" (as defined below) to the other
Party (the "RECEIVING PARTY"). For purposes of this Agreement "CONFIDENTIAL
INFORMATION" means (i) proprietary information (whether owned by the Disclosing
Party or a third party to whom the Disclosing Party owes a non-disclosure
obligation) regarding the Disclosing Party's business or (ii) information which
is marked as confidential at the time of disclosure to the Receiving Party, or
if in oral form, is identified as confidential at the time of oral disclosure
and reduced in writing or other tangible (including electronic) form including a
prominent confidentiality notice and delivered to the Receiving Party within
thirty (30) days of disclosure. "Confidential Information" shall not include
information which: (A) was known to the Receiving Party at the time of the
disclosure by the Disclosing Party; (B) has become publicly known through no
wrongful act of the Receiving Party; (C) has rightfully been received by the
Receiving Party from a third party; or (D) has been independently developed by
the Receiving Party. The Receiving Party agrees (x) 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 (y) not to
disclose any such Confidential Information, except (1) to its employees (and in
the case of SOFTBANK, employees of other members of the SOFTBANK Group) who are
reasonably required to have the Confidential Information in connection herewith
or with any of the other Transaction Documents, (2) to its agent,
representatives, lawyers and other advisers that have a need to know such
Confidential Information and (3) pursuant to, and to the extent of, a request or
order by a Governmental Authority. 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 acknowledges and agrees that (i) its obligations
under this Section 5.2 are necessary and reasonable to protect the other Party
and its business, (ii) any violation of these provisions could cause irreparable
injury to the other Party for which money damages would be inadequate, and (iii)
as a result, the other Party shall be entitled to obtain injunctive relief
against the threatened breach of the provisions of this Section 5.2
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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 at law or under this
Agreement.
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) except (a) as required by Applicable Law
including, without limitation, by the U.S. Securities and Exchange Commission
and Japanese Governmental Authorities, (b) to its accountants, banks, financing
sources, lawyers and other professional advisors, provided that such parties
undertake in writing (or are otherwise bound by rules of professional conduct)
to keep such information strictly confidential, (c) in connection with the
enforcement of this Agreement, (d) in connection with a merger, acquisition or
proposed merger or acquisition, or (e) pursuant to joint press releases 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, neither Party shall, directly or
(other than through the Company) indirectly, offer brokerage services which (i)
are targeted principally at Persons residing in the Territory and (ii) enable
consumers to receive loan or mortgage quotes or to apply for loans and mortgages
online; provided, however, that (a) nothing in this Agreement or the other
Transaction Documents shall be deemed to preclude or limit SOFTBANK or its
Affiliates from holding any equity interest in, or doing business with third
parties who, currently or in the future, provide such services in the Territory
(so long as such business does not involve SOFTBANK directly sourcing online
loan or mortgage services to Persons in the Territory), (b) nothing in this
Agreement or the other Transaction Documents shall be deemed to preclude or
limit either Party, or its Affiliates, from offering brokerage services which
are targeted principally at Persons in the Territory and which relate to
consumer finance, and (c) SOFTBANK shall not be deemed in breach hereof by
virtue of any services provided by SOFTBANK's joint ventures with Yahoo!,
OnSale, E*TRADE, Sonnet, Geocities, Cybercash, Morningstar, InsWeb or
xxxxxxxxx.xxx provided that SOFTBANK has not advised or provided assistance with
respect to the online loan or mortgage services. In the event that this
Agreement is terminated due to a Party's breach (including, without limitation,
if SOFTBANK is the terminating Party, a breach by E-LOAN 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 the Company to obtain such approvals, consents and similar actions
from Governmental Authorities in Japan, and E-LOAN shall be primarily
responsible for assisting the Company to obtain such approvals, consents and
similar actions from Governmental Authorities in the United States, as may be
necessary or appropriate in order to consummate the transactions contemplated
under the Transaction Documents. Each Party shall provide such assistance as the
other Party may reasonably request in connection with such consents and
approvals.
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6. WARRANTIES OF THE PARTIES
6.1 Warranties of SOFTBANK. SOFTBANK hereby represents and warrants to
E-LOAN that, as of the Effective Date and as of the Closing 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 Consulting Services
Agreement.
(b) Authorization. All corporate action on the part of SOFTBANK
necessary for the authorization, execution and delivery of this Agreement and
the Consulting Services Agreement and for the performance of all of its
obligations hereunder and thereunder has been taken, and this Agreement and the
Consulting Services Agreement when fully executed and delivered, shall each
constitute a valid, legally binding and enforceable obligation of SOFTBANK.
(c) Government and Other Consents. Other than any licenses,
permits, certifications or 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 Authority, or any other Person, is required in
connection with SOFTBANK's execution, delivery and performance of this Agreement
or the Consultant Services Agreements, or if any such consent is required,
SOFTBANK has satisfied the applicable requirements.
(d) Effect of Agreement. SOFTBANK's execution, delivery and
performance of this Agreement and the Consulting Services Agreement will not (i)
violate the Articles of Incorporation of SOFTBANK or any provision of Applicable
Law, (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
effect 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 approval may be required in connection with conducting the
Business and SOFTBANK makes no representation with respect to any such
approvals.
(e) Litigation. There are no actions, suits or proceedings
pending or, to SOFTBANK's knowledge, threatened, against SOFTBANK before any
Governmental Authority which question SOFTBANK's right to enter into or perform
this Agreement or the Consulting Services Agreement, or which question the
validity of this Agreement or any of the other Transaction Documents.
6.2 Warranties of E-LOAN. E-LOAN hereby represents and warrants to
SOFTBANK that, as of the Effective Date and as of the Closing Date, the
following statements are and shall be true and correct:
13
(a) Organization. E-LOAN is a corporation duly organized and
validly existing under the laws of Delaware. E-LOAN has the corporate power and
authority to enter into and perform this Agreement and the License Agreement.
(b) Authorization. All corporate action on the part of E-LOAN
necessary for the authorization, execution and delivery of this Agreement and
the License Agreement and for the performance of all of its obligations
hereunder and thereunder has been taken, and this Agreement and the License
Agreement, when fully executed and delivered, shall each constitute a valid,
legally binding and enforceable obligation of E-LOAN.
(c) Government and Other Consents. Other than any licenses,
permits or authorizations which may be required in connection with the Business,
as to which E-LOAN makes no representation, no consent, authorization, license,
permit, registration or approval of, or exemption or other action by, any
Governmental Authority, or any other Person, is required in connection with
E-LOAN's execution, delivery and performance of this Agreement or the License
Agreement, or if any such consent is required, E-LOAN has satisfied any
applicable requirements.
(d) Effect of Agreement. E-LOAN's execution, delivery and
performance of this Agreement and the License Agreement will not (i) violate the
Certificate of Incorporation of E-LOAN or any provision of Applicable Law, (ii)
violate any judgment, order, writ, injunction or decree of any court applicable
to E-LOAN, (iii) have any effect on the compliance of E-LOAN with any applicable
licenses, permits or authorizations which would materially and adversely affect
E-LOAN, (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-LOAN is a party and which would materially and adversely affect E-LOAN,
or (v) result in the creation of any lien, pledge, mortgage, claim, charge or
encumbrance upon any assets of E-LOAN; provided, however, that regulatory
approvals may be required in connection with conducting the Business and E-LOAN
makes no representation with respect to any such approvals.
(e) Litigation. There are no actions, suits or proceedings
pending or, to E-LOAN's knowledge, threatened, against E-LOAN before any
Governmental Authority which question E-LOAN's right to enter into or perform
this Agreement or the License Agreement, or which question the validity of this
Agreement or any of the other Transaction Documents.
7. TERM AND TERMINATION
7.1 Term. This Agreement shall be effective as of the Effective Date,
and shall continue in effect until terminated pursuant to Section 7.2 (the
"TERM").
7.2 Termination. This Agreement may be terminated as follows:
(a) Upon the mutual written agreement of SOFTBANK and E-LOAN.
(b) By either SOFTBANK or E-LOAN, effective immediately upon
written notice to the other Party, if the other Party breaches any material
provision of this Agreement or of any of the other Transaction Documents and
such breach continues for a
14
period of thirty (30) days after the delivery of written notice of the default,
describing the default in reasonable detail.
(c) By either SOFTBANK or E-LOAN, effective immediately upon
written notice to the other Party and the Company, in the event that the other
Party is dissolved, liquidated or declared bankrupt or a voluntary or
involuntary bankruptcy filing is made by such Party.
(d) By SOFTBANK, effective immediately upon written notice to
E-LOAN, in the event that the Company has elected to terminate the License
Agreement in accordance with its terms.
(e) By E-LOAN, effective immediately upon written notice to
SOFTBANK, in the event that E-LOAN has elected to terminate the License
Agreement in accordance with its terms.
7.3 Effect. Upon termination of this Agreement, the Parties shall
negotiate in good faith a possible purchase by one or more Parties of all
outstanding Securities held by the other Parties or the sale of the Company to a
third party. In the event that, notwithstanding their good faith negotiations,
the Parties are unable to agree upon such a purchase or sale within thirty (30)
days of the notice of termination, the Parties shall cooperate to cause the
Company 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 and 9
shall survive any termination of this Agreement.
7.4 Return of Confidential Information. Upon the termination of this
Agreement, each Party, at its own cost, shall promptly return to the Disclosing
Party any and all documents and materials constituting or containing
Confidential Information of the Disclosing Party which are in its possession or
control, or at its option, shall destroy such documents and materials and
certify such destruction in writing to the Disclosing Party.
7.5 Continuing Liability. Termination of this Agreement for any reason
shall not release any 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, not to
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 of such
Party. In the case of any transfer permitted hereunder, the transferring Party
shall deliver to the other Party (a) 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, whether such transferee is an
Affiliate, the number of Securities to be transferred, and the price and other
material terms and conditions of the transfer, and (b) except as otherwise
specifically provided herein, on or prior to the effective date of the transfer
and in a
15
form reasonably acceptable to the other Party and its counsel, the transferee's
written acknowledgement of and agreement to be bound by, and to vote the
transferred Securities at all times in accordance with, the terms of this
Agreement. E-LOAN acknowledges that SOFTBANK is in the process of forming SB
Finance for the purpose, among other things, of holding certain of its
investments in internet-related business ventures. E-LOAN agrees that upon the
formation and qualification of SB Finance, SOFTBANK may transfer its Securities
to SB Finance, provided that (1) SOFTBANK notifies E-LOAN of the proposed
transfer and (2) SB Finance agrees in writing to be bound by the terms hereof.
8.2 Transfers to Party Employees. Notwithstanding the provisions of
Section 8.1, each Party shall, upon written notice to the Company and the other
Party, have the right to transfer to such Party's employees (and, in the case of
SOFTBANK, to any SOFTBANK Group member'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 Company Interest for purposes of Section 4.2 for
so long as the employees own such Securities.
8.3 Initial Public Offering. The foregoing restrictions shall cease to
be of any further force or effect upon the closing date of an initial public
offering of Securities.
8.4 Board Approval. The Parties shall cause each Director it has
appointed to vote to approve any transfer of Securities in accordance with this
Section 8.
9. GENERAL PROVISIONS
9.1 Governing Law; Dispute Resolution. The validity, construction and
enforceability of this Agreement shall be governed by and construed in
accordance with the laws of Japan. All disputes between the Parties arising out
of this Agreement 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 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. 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, either 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.
9.2 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
originating in Japan, on the date of transmission with receipt of a transmittal
confirmation, (c) if transmitted by facsimile originating in the United States,
on the first (1st) Business Day following receipt of a transmittal confirmation,
or (d) if by international courier service, on the fourth (4th) Business Day
following the date of deposit with such courier service, or such earlier
delivery
16
date as may be confirmed in writing 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
Xxxxxxx Xxxxxxxx, Esq.
Telephone: 00-0-0000-0000
Facsimile: 00-0-0000-0000
with a copy (which copy shall not constitute notice) to:
Xxxxxxxx & Xxxxxxxx LLP
AIG Building, 7th Floor
0-0-0 Xxxxxxxxxx,
Xxxxxxx-xx, Xxxxx 000-0000, Xxxxx
Attention: Xxx Xxxxxx, Esq.
Telephone: 00-0-0000-0000
Facsimile: 00-0-0000-0000
If to E-LOAN:
E-Loan, Inc.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
U.S.A.
Attention: Xxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy (which copy shall not constitute notice) to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
U.S.A.
Attention: Xxx Xxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
or to such other address or facsimile number as a Party may have specified to
the other Party in writing delivered in accordance with this Section 9.2.
9.3 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. All communications and notices to be made or given pursuant to this
Agreement shall be in the English language.
17
9.4 Severability. If any provision in this Agreement shall be found or
be held to be invalid or unenforceable (including, without limitation, as a
result of 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.
9.5 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.
9.6 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.
9.7 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 the Company
shall be borne by the Company to the maximum extent permitted by Applicable Law
including, without limitation, expenses relating to the formation of the
Company, any transfer taxes for transfer of the Company stock to the Parties,
registration charges, taxes, fees and expenses relating to required governmental
or regulatory approvals, notary fees and legal fees and expenses.
9.8 No Waiver. No waiver of any term or condition of this Agreement
shall be valid or binding on a Party unless the same shall have been set forth
in a written document, specifically referring to this Agreement and duly signed
by the waiving Party. 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.
9.9 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.
9.10 Assignment. Neither Party shall assign this Agreement (a) without
the other Party's prior written consent, except that a Party may assign this
Agreement to a Person into which such Party has merged or which has otherwise
succeeded to all or substantially all of such Party's business or assets and (b)
which has assumed in writing or by operation of law, the assigning Party's
obligations under this Agreement, provided, however, that the assigning
18
Party shall remain liable for the assignee's performance of its obligations
hereunder. Notwithstanding the foregoing, SOFTBANK may assign all of its rights
and obligations hereunder to SB Finance in connection with a transfer of its
Securities to SB Finance in accordance with Section 8.1. This Agreement shall
inure to the benefit of, and shall be binding upon, the Parties and their
respective permitted successors and assigns.
9.11 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.
9.12 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.
9.13 Effective Date of Transaction Documents. The Transaction Documents
other than this Agreement shall become effective concurrently with consummation,
on the Closing Date, of the transactions described in Section 3.2.
9.14 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.
IN WITNESS WHEREOF, the Parties have caused their respective duly
authorized representatives to execute this Agreement as of the Effective Date.
SOFTBANK CORP. E-Loan, Inc.
By: /s/ YOSHITAKA KITAO By: /s/ XXXX XXXXX
-------------------------------- -------------------------------------
Yoshitaka Kitao Xxxx Xxxxx
Executive Vice President and CFO Vice President, Business Development
and Sales
19
EXHIBIT 1.4
Company Articles of Incorporation
[Exhibit 1.4 IS WRITTEN IN JAPANESE]
20
EXHIBIT 1.14
Consulting Services Agreement
21
CONSULTING SERVICES AGREEMENT
This CONSULTING SERVICES AGREEMENT ("AGREEMENT") is made as of
_________, 1999, (the "EFFECTIVE DATE") by and between E-Loan Japan K.K., a
Japanese corporation (the "COMPANY"), and SOFTBANK CORP., a Japanese corporation
("SOFTBANK"). The Company 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. Pursuant to a Joint Venture Agreement dated as of March 31, 1999 (the
"JV AGREEMENT") between SOFTBANK and E-LOAN, Inc., a Delaware corporation
("E-LOAN"), E-LOAN and SOFTBANK have established the Company for the purpose of
providing a comprehensive Internet marketplace in which customers in Japan can,
by accessing an online site, identify loan providers and lenders can identify
interested consumers (as more fully described in the JV Agreement, the
"BUSINESS"). All capitalized terms used herein without definition shall have the
meanings set forth in the JV Agreement.
C. SOFTBANK has agreed to provide certain consulting services to the
Company relating to the Business on the terms and conditions set forth in this
Agreement.
NOW THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the Parties hereby agree as follows:
AGREEMENT
1. CONSULTING SERVICES
SOFTBANK agrees to provide the consulting services (the "SERVICES")
described in attached Exhibit A on the terms, and subject to the conditions, set
forth herein.
2. CONSULTING FEE
SOFTBANK shall provide the Services to the Company free of charge,
except for reimbursement of SOFTBANK's reasonable out-of-pocket expenses;
provided, however, that if the Company fails to complete an initial public
offering of its Securities by the fourth (4th) anniversary of the Effective Date
(as defined above), then from and after such time the Company shall pay to
SOFTBANK a service fee, agreed upon by SOFTBANK and the Company, calculated as a
percentage of the Company's gross revenues during each fiscal quarter after such
anniversary. Any fees hereunder (a) shall be denominated in yen, (b) shall be
payable quarterly, in arrears, within twenty (20) days of the end of each
calendar quarter and (c) shall be accompanied by a statement setting forth the
basis for the fee calculation. If the Company fails to pay any amount when due
hereunder, the Company shall pay late charges of 1.5% per month, but in no event
more than the highest rate permitted by applicable law.
22
3. REPRESENTATIONS OF THE PARTIES
Each Party hereby represents and warrants to the other Party that, as of
the date hereof, the following statements are true and correct:
3.1 Organization. Such Party 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.
3.2 Authorization. All corporate action on the part of such Party
necessary for the authorization, execution and delivery of this Agreement and
for the performance of all of its obligations hereunder has been taken, and this
Agreement when fully executed and delivered, shall each constitute a valid,
legally binding and enforceable obligation of such Party.
3.3 Effect of Agreement. Such Party's execution, delivery and
performance of this Agreement will not (a) violate the Articles of Incorporation
of such Party or any provision of any law, statute, rule or regulation to which
such Party is subject, (b) violate any judgment, order, writ, injunction or
decree of any court applicable to such Party, or (c) have any effect on the
compliance of such Party with any applicable licenses, permits or authorizations
which would materially and adversely affect such Party.
4. TERM AND TERMINATION
4.1 Term. This Agreement shall be effective as of the Effective Date and
shall continue in full force and effect until and unless terminated pursuant to
Section 4.2.
4.2 Termination.
4.2.1 Default. If E-LOAN or the Company fails to perform, in any
material respect, any of its material obligations hereunder or under any other
Transaction Document, 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, then SOFTBANK shall have the right to terminate this Agreement
effective immediately upon written notice to E-LOAN and the Company.
4.2.2 Bankruptcy. If either SOFTBANK or the Company is dissolved,
liquidated or declared bankrupt, or a voluntary or involuntary bankruptcy filing
is made by or with respect to such Party and remains unstayed and undismissed
for a period of sixty (60) days after filing (a "BANKRUPTCY EVENT"), then the
Party not subject to the Bankruptcy Event shall have the right to terminate this
Agreement, effective immediately upon notice to the other Party.
4.2.3 Obligations on Termination. The provisions of Sections 5
(Confidentiality) and 6 (General Provisions) shall survive any termination of
this Agreement. The termination of this Agreement will not release either Party
from any liability incurred prior to termination.
5. CONFIDENTIALITY
5.1 Confidential Information. The Parties recognize that, in connection
with the performance of this Agreement, each Party (in such capacity, the
"DISCLOSING PARTY") may disclose Confidential Information (as defined below) to
the other Party (the "RECEIVING
23
PARTY"). For purposes of this Agreement "CONFIDENTIAL INFORMATION" means (a)
proprietary information (whether owned by the Disclosing Party or a third party
to whom the Disclosing Party owes a non-disclosure obligation) regarding the
Disclosing Party's business or (b) information which is marked as confidential
at the time of disclosure to the Receiving Party, or if in oral form, is
identified as confidential at the time of oral disclosure and reduced in writing
or other tangible (including electronic) form including a prominent
confidentiality notice and delivered to the Receiving Party within thirty (30)
days of disclosure. "Confidential Information" shall not include information
which: (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.
The Receiving Party agrees (A) 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 (B) not to disclose any such
Confidential Information, except (1) to its employees (and in the case of
SOFTBANK, employees of other members of the SOFTBANK Group) who are reasonably
required to have the Confidential Information in connection herewith or with any
of the other Transaction Documents, (2) to its agent, representatives, lawyers
and other advisers that have a need to know such Confidential Information and
(3) pursuant to, and to the extent of, a request or order by a governmental
authority. 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.
5.2 Injunction. Each Party acknowledges and agrees that (a) its
obligations under Section 5.1 are necessary and reasonable to protect the other
Party and its business, (b) any violation of these provisions could cause
irreparable injury to the other Party for which money damages would be
inadequate, and (c) as a result, the other Party shall be entitled to obtain
injunctive relief against the threatened breach of the provisions of Section 5.1
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 at law or under this
Agreement.
6. GENERAL PROVISIONS
6.1 Governing Law; Dispute Resolution. The validity, construction and
enforceability of this Agreement shall be governed by and construed in
accordance with the laws of Japan. All disputes between the Parties arising out
of this Agreement 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 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. Judgment 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.
6.2 Notices and Other Communications. Any and all notices, requests,
demands and other communications required or otherwise contemplated to be made
under this Agreement
24
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 date of
transmission with 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
Xxxxxxx Xxxxxxxx, Esq.
Telephone: 00-0-0000-0000
Facsimile: 00-0-0000-0000
with a copy to (which shall not constitute notice):
Xxxxxxxx & Xxxxxxxx LLP
AIG Building, 7th Floor
0-0-0 Xxxxxxxxxx,
Xxxxxxx-xx, Xxxxx 000-0000, Xxxxx
Attention: Xxx Xxxxxx, Esq.
Telephone: 00-0-0000-0000
Facsimile: 00-0-0000-0000
If to the Company:
_________________________
_________________________
_________________________
Attention: ___________
Telephone: ___________
Facsimile: ___________
or in each case to such other address or facsimile number as a Party may have
furnished to the other Party in writing delivered in accordance with the terms
of this Section 6.2.
6.3 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.
6.4 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
25
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.
6.5 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.
6.6 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.
6.7 No Waiver. No waiver of any term or condition of this Agreement
shall be valid or binding on a Party unless the same shall have been set forth
in a written document, specifically referring to this Agreement and signed by
the waiving Party. 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.
6.8 Entire Agreement; Amendments. The terms and conditions contained in
this Agreement (including the Exhibits hereto) and the documents referred to
herein 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 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 by and delivered by
duly authorized representatives of each Party.
6.9 Assignment. Neither Party shall assign this Agreement (a) without
the other Party's prior written consent, and (b) 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. Notwithstanding the
foregoing, SOFTBANK may assign all of its rights and obligations hereunder to SB
Finance in connection with a transfer of its Securities to SB Finance in
accordance with Section 8.1 of the JV Agreement. This Agreement shall inure to
the benefit of, and shall be binding upon, the Parties and their respective
permitted successors and assigns.
6.10 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.
6.11 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.
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IN WITNESS WHEREOF, the Parties have caused their respective duly
authorized representatives to execute this Agreement as of the Effective Date.
SOFTBANK CORP. E-Loan Japan K.K.
By:______________________________ By:______________________________________
Yoshitaka Kitao [Name]
Executive Vice President and CFO [Title]
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EXHIBIT A
CONSULTING SERVICES
1. Consult with the Company concerning the government approvals that may
be reasonably necessary or appropriate for the Company to obtain in connection
with the conduct of the Business, or any extension thereof, and assist the
Company in maintaining such approvals.
2. Acquire information regarding, and consult concerning, strategic
business opportunities relating to the Business.
3. Consult with the Company on staffing, management and operation of the
Company.
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EXHIBIT 1.23
License Agreement
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LICENSE AND SERVICES AGREEMENT BETWEEN
E-LOAN, INC. AND E-LOAN JAPAN
This LICENSE AND SERVICES AGREEMENT (this "AGREEMENT") is entered into
as of ___________, 1999, (the "EFFECTIVE DATE") by and between E-Loan, a
California corporation with offices at 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxx
Xxxx, Xxxxxxxxxx, 00000 ("E-LOAN"), and E-LOAN JAPAN K.K., a kabushiki kaisha
organized under the laws of Japan with offices at _____________ ("LICENSEE").
BACKGROUND
A. E-Loan is engaged in an Internet-based marketing business in the
United States in which E-Loan acts as an on-line mortgage originator, offering
automated loan application process flows that allow Internet users to apply for
and obtain home mortgages and related services quickly and at substantially
reduced fees.
B. E-Loan wishes to provide Licensee with certain licenses to E-Loan's
Software (as defined below), technology, and trademarks, and certain development
and technical support services.
NOW, THEREFORE, in consideration of the mutual promises and upon the
terms and conditions set forth below, the parties agree as follows:
1. DEFINITIONS.
1.1 "AFFILIATE" of a party means any entity controlled by, controlling,
or under common control with such party, where "control" means ownership, either
direct or indirect, of more than 50% of the equity interest entitled to vote for
the election of directors or equivalent governing body.
1.2 "DERIVATIVE WORK" means a "derivative work" or "compilation" within
the meaning of such terms under the United States Copyright Act, 17 U.S.C.
Section 101 et seq.
1.3 "DOCUMENTATION" means any instructions, manuals or other materials,
including without limitation on-line help files, regarding the development,
installation, maintenance or use of the Software, which have been delivered by
E-Loan to Licensee under this Agreement.
1.4 "E-LOAN BRAND" means (i) the "E-Loan" trademark, service xxxx and
logo, and the Licensee Domain, and (ii) all other marks that E-Loan uses for its
on-line mortgage origination business in the United States during the term of
this Agreement and any derivations of such marks developed for use in and/or
registered in the Territory, for purposes of the Local Business.
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1.5 "E-LOAN TECHNOLOGY" shall mean the Software, Documentation, and all
proprietary techniques, processes, methods, applications, know-how, content,
data, technical information and other technology or information, that E-Loan,
presently or in the future, owns or has the right to license to Licensee.
1.6 "LICENSEE DOMAIN" means the Uniform Resource Locator
http:\\____________.
1.7 "ERROR" means a material, reproducible failure of the Software to
perform in substantial conformity with the functional specifications in the
Documentation.
1.8 "GLOBAL BRAND PROTOCOLS" means the procedures for use of the E-Loan
Brand set forth in EXHIBIT B, as modified from time to time by E-Loan upon 90
days prior notice to Licensee.
1.9 "SITE LAUNCH DATE" means the date Licensee makes the World Wide Web
site for the Local Business generally available on the World Wide Web.
1.10 "LOCAL BUSINESS" means a business developing, marketing and
providing an online mortgage and/or car loan marketplace for consumers in the
Territory, including developing localized versions of E-Loan's U.S. services and
providing information about the availability and terms of such mortgages and car
loans for distribution to end users in the Territory and related activities
necessary to conduct such business. It is understood that the Local Business
includes the foregoing only to the extent the same pertains to (i) mortgages for
which the underlying real property is located in the Territory; and (ii) car
loans that are offered solely to residents of the Territory and are
collateralized by automobiles located in the Territory.
1.11 "LOCAL COUNTRY LICENSEES" means parties other than Licensee that
are similarly situated users of the E-Loan Software and the E-Loan Brand outside
the Territory.
1.12 "LOCALIZED VERSION" means a Derivative Work of the Software or
Documentation, that retain the core functionality of the Software, or
Documentation, but incorporates the language, currency, user interfaces, look
and feel or functional variations required or appropriate to conduct the Local
Business in the Territory, which Derivative Works are created by or for
Licensee.
1.13 "LOCALIZE", or "LOCALIZATION" means any modifications to the
Software or Documentation necessary to create a Localized Version.
1.14 "SOFTWARE" means E-Loan's existing proprietary Software products
specified on EXHIBIT A, in source code or object code form (as specified in
EXHIBIT A), together with any Error corrections, new revisions, updates or
upgrades thereof provided to Licensee pursuant to this Agreement.
1.15 "TERM" has the meaning defined in Section 10.1 below.
1.16 "TERRITORY" means Japan and the Republic of South Korea.
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2. GRANT OF LICENSE.
2.1 LICENSE. Subject to the terms and conditions of this Agreement,
E-Loan hereby grants to Licensee an exclusive, perpetual, royalty-free,
non-sublicensable, non-transferable license under the E-Loan Technology to use,
copy, display, and create Derivative Works of the E-Loan Technology, in each
case solely for the operation of the Local Business, solely within the
Territory. In this Section 2.1(a), "exclusive" means only that E-Loan shall not
for its own account, nor grant to any third party in the Territory a license to,
use, copy, display, create Derivative Works of, or otherwise exploit the E-Loan
Technology in connection with the operation of the Local Business in the
Territory.
2.2 COPIES. Licensee may: (a) make copies of the Software as necessary
for backup or archival purposes, (b) retain a reasonable number of copies of any
portions of the Software delivered in source code form as necessary for
production purposes, and (c) make and retain such copies of the E-Loan
Technology as reasonably necessary for Licensee to use the E-Loan Technology in
connection with the Local Business. Except as otherwise set forth herein,
Licensee may not copy, distribute, reproduce, use or allow access to the E-Loan
Technology. Whenever Licensee is permitted to copy or reproduce all or any part
of the E-Loan Technology, any titles, copyright notices, patent notices, or
other proprietary markings must be reproduced. Licensee shall not alter or
remove any of E-Loan's copyright notices, patent notices, or other proprietary
notices affixed to the E-Loan Technology by E-Loan.
2.3 OWNERSHIP. E-Loan owns all right, title and interest in and to the
E-Loan Technology. All rights not expressly granted hereunder are reserved to
E-Loan. Licensee shall not reverse engineer any portions of the Software not
provided in source code format; however, such prohibition will only be effective
to the extent allowable under local law. Subject to E-Loan's ownership of the
E-Loan Technology, the Software and the Documentation, Licensee owns all right,
title and interest in and to all Derivative Works of the Software and
Documentation made by Licensee (or by third parties on behalf of Licensee),
including Localizations, in accordance with this Agreement. Upon completion of
any such Derivative Work by or under authority of Licensee, Licensee shall
disclose to E-Loan a copy of such Derivative Work. Any such disclosure of a
Derivative Work consisting of software must be in both executable object code
and source code format. Licensee hereby grants to E-Loan a non-exclusive,
perpetual, irrevocable, sublicensable license to use, reproduce, modify,
perform, display and transmit such Derivative Works outside the Territory.
2.4 SOFTWARE LOCALIZATIONS. Except as otherwise set forth in Section 3.1
regarding the Initial Localization Services, as between the parties, Licensee is
responsible for any changes to the Software or Documentation necessary to
Localize them in accordance with the operation of the Local Business. All such
Localization must be either: (i) performed by E-Loan; or (ii) performed by
Licensee, or by its independent contractor in accordance with Section 9.4.
2.5 ERROR CORRECTIONS, UPDATES AND UPGRADES. During the first four (4)
years after the Effective Date, E-Loan shall deliver to Licensee any Error
corrections, updates, upgrades, enhancements or future versions of or to the
Software or Documentation that E-Loan makes generally available to its other
Local Country Licensees outside the United States without charge, to the extent
the same are applicable to the Local Business or (b) as the parties otherwise
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agree; in the case of (a), no later than the time when such Error corrections,
updates, upgrades, enhancements or future versions are first released to any
such other Local Country Licensee. Following such four (4) year period, for so
long as E-Loan owns at least 20% of the outstanding shares of Licensee, E-Loan
shall continue to deliver to Licensee such Error corrections, updates, upgrades,
enhancements or future versions of or to the Software or Documentation subject
to the payment by Licensee to E-Loan of a fee in consideration therefor, such
fee not to exceed the lowest fee charged to any of E-Loan's other Local Country
Licensees for similar services.
2.6 LICENSE RESTRICTIONS. Licensee shall not:
(a) sell, lease, license, sublicense or distribute the E-Loan
Technology except in accordance with this Agreement;
(b) provide, disclose, divulge or make available to, or permit
use of the E-Loan Technology by any third party without E-Loan's prior written
consent, except as specifically authorized by this Agreement and except to the
extent such use or disclosure is inherent in the normal operation of the Local
Business with respect to users of the World Wide Web Site for the Local
Business, which use or disclosure is substantially similar to the use or
disclosure made by E-Loan by means of its World Wide Web Site in the U.S.; or
(c) use the E-Loan Technology for any purpose except as expressly
provided for in this Agreement.
2.7 DELIVERY OF E-LOAN TECHNOLOGY. As soon as practical after the
Effective Date, E-Loan shall deliver to Licensee the Software and Documentation,
and representations of the E-Loan Brand necessary or appropriate for the
Licensee's operation of the Local Business in the Territory.
3. MAINTENANCE AND SUPPORT.
3.1 INITIAL LOCALIZATION SERVICES. If and as requested by Licensee and
agreed by E-Loan, E-Loan shall provide initial services to Localize the Software
(the "INITIAL LOCALIZATION SERVICES") in accordance with the initial work plan
set forth in EXHIBIT [D], at no charge other than reasonable out-of-pocket
expenses incurred in connection with providing the technical support services,
which shall be reimbursed by Licensee within thirty (30) days of an invoice
therefor.
3.2 TECHNICAL SUPPORT. E-Loan shall provide Licensee technical staff
with technical support to assist Licensee with the use of the Software,
according to the escalation procedures described in EXHIBIT E, at no charge
other than reasonable out-of-pocket expenses incurred in connection with
providing the technical support services, which shall be reimbursed by Licensee
within thirty (30) days of an invoice therefor.
3.3 PROJECT MANAGERS. Each party shall designate a project manager to
administer technical support under this Agreement. The parties shall coordinate
all support work under this Agreement through such project managers. Each party
may change its project manager upon written notice.
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3.4 PRODUCT MANAGERS. Each party shall designate a product manager to be
responsible for trademark, branding, marketing, and related issues under this
Agreement. The parties shall coordinate all support work under this Agreement
through such product managers. Each party may change its product manager upon
written notice.
4. ROYALTIES AND OTHER OBLIGATIONS.
4.1 ROYALTIES. Licensee shall pay to E-Loan an annual royalty in
consideration of the rights granted to Licensee under this Agreement equal to
___ percent (__%) of Licensee's gross revenues up to a maximum of _______ yen
per year, payable annually in arrears within sixty (60) days after the end of
Licensee's fiscal year (for the then-ended fiscal year); provided, however,
that if Licensee fails to complete an initial public offering of its securities
by the fourth (4th) anniversary of the Effective Date, then from and after such
time Licensee shall pay to Licensor a royalty, agreed upon between Licensee and
Licensor, calculated as a percentage of Licensee's gross revenue during each
fiscal quarter after such anniversary.
4.2 AUDITS. Licensee shall keep and maintain complete and accurate
records of the transactions underlying the payments to be made hereunder, and
shall allow, upon two (2) weeks written notice, a certified public accountant
reasonably acceptable to both parties during office hours and no more than once
per year, to inspect and make extracts or copies of such records for the purpose
of ascertaining the correctness of such payments. If any such examination and
audit discloses any deficiency of 5% or more, Licensee shall pay, in addition to
such deficiency, the costs of such examination and audit.
4.3 LICENSEE OBLIGATIONS. Licensee shall use reasonable commercial
efforts to promote sales of mortgages and related services through the Local
Business. Licensee shall operate the Local Business solely in accordance with
the laws, regulations, and other legal requirements applicable to the Local
Business.
4.4 HYPERLINKS. The parties will discuss in good faith establishing
appropriate hypertext links to each other's web sites.
4.5 TERRITORY AND SALES. The parties acknowledge that in any
Internet-based marketing system it is not possible to exclude all inquiries or
business from outside a geographic territory. E-Loan acknowledges that certain
incidental promotion of and/or access to the World Wide Web site for the Local
Business may occur outside the Territory and agrees that the same will not
constitute a breach of this Agreement, and Licensee similarly acknowledges that
certain incidental promotion of and/or access to the World Wide Web site for
E-Loan's business may occur within the Territory and agrees that the same will
not constitute a breach of this Agreement. Licensee shall use reasonable
efforts, to the extent legally permitted, to avoid territorial conflicts between
Licensee and Local Country Licensees, by responding to inquiries or orders for
sales of products or services from persons outside the Territory as required by
the laws of the Territory, and by communicating any such orders to E-Loan for
referral, if appropriate, to Local Country Licensees. E-Loan shall use
reasonable efforts to resolve any channel conflicts with Local Country Licensees
relating to such inquiries. E-Loan shall use reasonable efforts to communicate
to Licensee any inquiries or orders for sales of residential mortgages received
by E-Loan or its Local Country Licensees from persons within the Territory.
4.6 REPORTS. No more frequently than once per calendar month, as
reasonably requested by E-Loan, Licensee will provide to X-
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Loan, in a format reasonably acceptable to E-Loan, a summary report of the
number of completed loan applications, rate quotations and web site page visits.
5. WARRANTY AND DISCLAIMER.
5.1 E-LOAN WARRANTY.
(a) SOFTWARE PERFORMANCE. E-Loan hereby represents and warrants
to Licensee that during the Term, the Software in the form delivered to Licensee
will perform in substantial accordance with the Documentation.
(b) YEAR 2000 COMPLIANCE. E-Loan hereby represents and warrants
to Licensee that the Software in the form delivered to Licensee is Year 2000
Compliant. "YEAR 2000 COMPLIANT" means that the Software, when used in
accordance with the Documentation and with the hardware and operating systems
approved by E-Loan, will: (a) initiate and operate; (b) correctly store,
represent, process and output dates; (c) not cause or result in an abnormal
termination or ending or degradation of performance or any other adverse effect
on performance; and (d) correctly process dates input by a user; in each case
when processing data containing dates in the year 2000 and in any preceding and
following years, including leap years, provided that all third party products
that exchange date data with the Software do so in a form and format compatible
with the Software.
(c) REMEDIES. If the Software does not perform as warranted under
Sections 5.1(a) or 5.1(b), E-Loan shall, at no charge to Licensee, use
reasonably diligent efforts to correct the Software, or provide a patch or
workaround, in accordance with the escalation procedures in EXHIBIT E, and
include the correction thereof in the next error correction released by E-Loan
and provided to Licensee under Section 2.5. The foregoing are Licensee's
exclusive remedies for breach of the warranties provided in Sections 5.1(a)
through (c). The warranty will apply only if the then-current version of the
Software, or otherwise the most recent version of the Software which has been
provided by E-Loan to Licensee, has been properly installed and used at all
times and in accordance with the instructions for use; provided that the
preceding limitation shall apply only if the most recent version of the Software
supplied by E-Loan provides all of the material functionality of the version it
replaces.
(d) CORPORATE WARRANTY. E-Loan represents and warrants to
Licensee that E-Loan has full power, right and authority to enter into this
Agreement, to carry out its obligations under this Agreement, and to grant the
rights granted to Licensee herein, and that this Agreement is valid, binding and
enforceable against it (subject to applicable principles of equity and
bankruptcy and insolvency laws);
(e) NO CONFLICT. E-Loan represents and warrants that the
execution of this Agreement, the granting of the rights and licenses to Licensee
herein, and the performance of its obligations hereunder does not and will not
(i) violate the Articles of Incorporation of By-laws of E-Loan or any provision
of any U.S. law, statue, rule or regulation to which it is subject; (ii) violate
any judgement, order, writ, injunction or decree of any court applicable to
E-Loan; or (iii) conflict with or violate any other agreement into which E-Loan
has entered; excluding in the
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case of (i) and (ii), however, any regulatory approvals that may be required in
connection with operating the Local Business in the Territory.
(f) RIGHTS; NON-INFRINGEMENT. E-Loan represents and warrants that
it has the rights to grant the licenses herein, and that the use of the Software
and Documentation in accordance with the terms of this Agreement do not and will
not infringe or misappropriate any copyrights or trade secrets of any third
party or, to the best of E-Loan's knowledge as of the Effective Date, any
trademark, patent or other intellectual property or proprietary rights of any
third party.
(g) NO CLAIMS. E-Loan represents and warrants that, to the best
of its knowledge except as disclosed to Licensee or Softbank with respect to the
Local Brand in Korea, no proceedings have been instituted or are pending or
threatened that challenge the rights of E-Loan in the Territory in respect of
the E-Loan Technology or the E-Loan Brand, other than any such claims or demands
that individually or in the aggregate will not have a material adverse effect on
the financial condition or results of the operations of E-Loan.
(h) SERVICE WARRANTY. E-Loan represents and warrants that all
services provided to Licensee under this Agreement will be performed in a
professional and competent manner in accordance with industry standards.
(i) ALL NECESSARY TECHNOLOGY DELIVERED. E-Loan represents and
warrants that the E-Loan Technology delivered to Licensee under this Agreement
includes all of the E-Loan Technology which E-Loan presently owns or has the
ability to license to Licensee.
5.2 LICENSEE CORPORATE WARRANTY. Licensee represents and warrants to
E-Loan that Licensee has full power, right and authority to enter into this
Agreement and to carry out its obligations under this Agreement, and that this
Agreement is valid, binding and enforceable against it (subject to applicable
principles of equity and bankruptcy and insolvency laws).
5.3 DISCLAIMER. EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH IN
SECTION 5.1 ABOVE, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED "AS-IS" AND
WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE.
E-LOAN HEREBY DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE SOFTWARE WILL BE
UNINTERRUPTED OR ERROR-FREE. E-LOAN SPECIFICALLY DISCLAIMS ALL IMPLIED
WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR
PURPOSE WITH RESPECT TO THE SOFTWARE, DOCUMENTATION AND ANY SERVICES PROVIDED BY
E-LOAN HEREUNDER.
5.4 ADDITIONAL DISCLAIMER. The success of the business venture
contemplated to be undertaken by Licensee by virtue of this Agreement is
speculative and depends, to a large extent, upon the ability of Licensee as an
independent business operator and the active participation of Licensee in the
daily affairs of the Local Business, as well as other factors. E-Loan hereby
disclaims any representation or warranty, express, or implied, as to the
potential success of the business venture contemplated by this Agreement.
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6. TRADEMARKS AND DOMAIN NAMES.
6.1 TRADEMARKS. E-Loan hereby grants to Licensee the exclusive right to
use the E-Loan Brand for the purpose of conducting the Local Business in the
Territory. The above license will include without limitation the right to
indicate to the public that Licensee is an authorized licensee of E-Loan and to
advertise Licensee's products and services in connection with the Local Business
in the Territory under the E-Loan Brand. Licensee shall fully comply with the
Global Brand Protocols in relation to Licensee's use of the E-Loan Brand. All
representations of the E-Loan Brand that Licensee intends to use must first be
submitted to E-Loan for approval of design, color and other details, subject to
the following limitations: (a) E-Loan's approval will not be unreasonably
withheld or delayed; (b) such approval, once given, will not be withdrawn
without a reasonable notice period to implement necessary changes; and (c) once
E-Loan has approved a particular use, Licensee need not re-submit for approval
any substantially identical use.
6.2 RESTRICTIONS. Except as set forth in this Section 6, nothing
contained in this Agreement will be deemed to grant to Licensee any right, title
or interest in or to the E-Loan Brand. If Licensee, in the course of exercising
its rights hereunder, acquires any goodwill or reputation in the E-Loan Brand,
all such goodwill or reputation will automatically vest in E-Loan when and as,
on an ongoing basis, such acquisition of goodwill or reputation occurs, as well
as at the expiration or termination of this Agreement, without any separate
payment or other consideration of any kind to Licensee, and Licensee agrees to
take such actions as are reasonably necessary, at E-Loan's expense, to effect
such vesting, including without limitation the transfer to E-Loan of rights in
any filings or registrations made under Section 6.3. Upon termination of this
Agreement, Licensee shall immediately cease to use the E-Loan Brand, and the
Licensee Domain, and shall change its name to eliminate any reference to
"E-Loan." In the event that Licensee intentionally challenges, or intentionally
assists a third party in challenging, any part of the E-Loan Brand, or the
registration thereof, or seeks to obtain rights in the E-Loan Brand by seeking
registration thereof or otherwise, E-Loan, following thirty (30) days written
notice and an opportunity to cure or cease such actions, may terminate this
Agreement upon written notice to Licensee.
6.3 TRADEMARK REGISTRATIONS IN THE TERRITORY. Licensee shall advise
E-Loan regarding the appropriate registrations or filings appropriate to protect
the use of the E-Loan Brand in the Territory. E-Loan shall make, and Licensee
shall cooperate with E-Loan to make, such registrations or filings with the
appropriate authorities and thereafter seek to register such other trademarks
and service marks in the Territory descriptive of the E-Loan Brand and/or the
Local Business, in English, Japanese and/or Korean, as Licensee may reasonably
request from time to time.. E-Loan shall pay all costs or fees associated with
such filing, and all such trademarks and service marks shall be owned by E-Loan
and deemed part of the E-Loan Brand.
6.4 REGISTERED USER AGREEMENTS. E-Loan shall cooperate with Licensee to
make any registrations or filings with the appropriate authorities referenced in
Section 6.3, including without limitation entering into registered user
agreements with respect to the E-Loan Brand pursuant to applicable trademark law
requirements in the Territory. Licensee will be responsible for proper filing of
registered user agreements with appropriate government authorities and shall pay
all costs or fees associated with such filing.
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6.5 NAME BRANDING; PRODUCT PROTECTION. On any promotional materials used
or disseminated by Licensee relating to the Local Business, Licensee shall
display the E-Loan Brand. Licensee shall use the E-Loan Brand as the sole brand
for, and not to use any trademark, service xxxx, trade name or similar
identifiers other than the E-Loan Brand in connection with, the Local Business.
Where both Licensee's marks and the E-Loan Brand are displayed, the marks will
be presented equally legibly, and in a size and style in accordance with the
Global Brand Protocols.
6.6 DOMAIN NAMES. E-Loan hereby grants to Licensee the right to use the
Licensee Domain, solely for the operation of a Local Business. E-Loan shall,
prior to the Site Launch Date, register the Licensee Domain name with InterNIC
or its successor Internet name assignment authority, or its then-current
counterparts in the Territory, and shall pay the registration fees for one year,
it being understood that E-Loan shall be the owner of the Licensee Domain.
Thereafter, Licensee shall in a timely fashion renew such registration with such
authority at its own expense each time such registration becomes due during the
Term, it being understood that E-Loan retains ownership of such Licensee Domain.
6.7 QUALITY CONTROL. The nature and quality of all goods, services and
promotional materials used by Licensee hereunder must conform to the standards
set by E-Loan. E-Loan shall have the right to monitor the quality of such goods,
services and promotional materials and Licensee shall assist E-Loan in
monitoring quality by making available to E-Loan, upon E-Loan's request, samples
and demonstrations of such use.
7. LIMITATION OF LIABILITY.
EXCEPT FOR LIABILITY FOR THIRD PARTY CLAIMS ARISING OUT OF SECTIONS
8 OR 9, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY
OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT OR OTHERWISE, ARISING OUT OF
OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOSS OF ANTICIPATED
PROFITS, LOSS OF DATA, OR LOSS OF USE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
8. INDEMNIFICATION.
8.1 E-LOAN INDEMNITY. E-Loan shall indemnify, defend and hold harmless
Licensee, and its Affiliates, officers, directors, employees, shareholders,
consultants and agents against any liability, cost or expense (including, but
limited to, attorney's fees) resulting from any claim, action or allegation by a
third party which, if true, would result in the breach of the representations
and warranties by E-Loan in Section 5.1, and shall pay any final judgments
awarded or settlements entered into (provided such settlements have been
approved by Licensee, such approval not to be unreasonably withheld) as a result
of such claim, action or allegation; provided that Licensee gives prompt written
notice to E-Loan of any such claim, action or allegation of infringement and
gives E-Loan the authority to proceed as contemplated herein. E-Loan will have
the exclusive right to defend any such claim, action or allegation and, subject
to Licensee's reasonable approval, make settlements thereof, and Licensee may
not settle or
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compromise such claim, action or allegation, except with the prior written
consent of E-Loan. Licensee shall give such assistance and information as E-Loan
may reasonably require, at E-Loan's expense, to settle, or oppose such claims.
In the event any breach of warranty under Section 5.1 results in a claim of
infringement or misappropriation, or E-Loan believes that such a claim may be
brought, E-Loan may, at its sole option and expense:
(a) procure for Licensee the right to continue use of the
infringing or misappropriated materials; or
(b) modify or amend the infringing or misappropriated materials,
or replace the infringing or misappropriated materials with other materials
having substantially the same functionality and performance.
The foregoing obligations will not apply to the extent the infringement or
misappropriation arises as a result of modifications to the Software or
Documentation not made by or for E-Loan unless such modifications were made
expressly at the direction of, and in accordance with, instructions by E-Loan.
The foregoing states the entire liability of E-Loan with respect to infringement
of any patent, copyright, trademark, trade secret or other proprietary right.
8.2 LICENSEE INDEMNITY. Licensee shall indemnify, defend and hold
harmless E-Loan, and its Affiliates, officers, directors, employees,
shareholders, consultants and agents against any liability, cost or expense
(including, but limited to, attorney's fees), resulting from the operation by
Licensee of the Local Business (except for those claims, actions and allegations
for which E-Loan is responsible pursuant to Section 8.1 above, and except to the
extent such liability, damages, cost or expense results from a breach by E-Loan
of any terms of conditions of this Agreement), and shall pay any final judgments
awarded or settlements entered into (provided such settlements have been
approved by E-Loan, such approval not to be unreasonably withheld); provided
that E-Loan gives prompt written notice to Licensee of any claim, action or
allegation relating thereto and gives Licensee the authority to proceed as
contemplated herein. Licensee will have the exclusive right to defend any such
claim, action or allegation and, subject to E-Loan's reasonable approval, make
settlements thereof, and E-Loan may not settle or compromise such claim, action
or allegation, except with the prior written consent of Licensee. E-Loan shall
give such assistance and information as Licensee may reasonably require, at
Licensee's expense, to settle or oppose such claims.
8.3 PROSECUTION OF INFRINGERS. E-Loan and Licensee shall give each other
written notice of any acts of infringement by third parties involving
intellectual property rights relating to the Localized Version, Software,
Documentation, or E-Loan Brand anywhere in the Territory of which E-Loan or
Licensee has knowledge, and the parties shall consult together with a view to
determine the course of action, if any, to be taken in such circumstances.
E-Loan will have the right to take action to enforce such rights. If E-Loan does
not undertake reasonable efforts to enforce such rights, then Licensee may take
such actions at Licensee's expense, as agreed by Licensee and E-Loan. Each party
shall render to the other any assistance requested by the other in proceedings
against an infringer within the Territory brought in accordance with this
Section 8.3, at the other party's expense. Any damages that might be awarded
will, after deduction of actual costs, be awarded to the party that undertakes
legal action.
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9. CONFIDENTIAL INFORMATION.
9.1 OBLIGATIONS. The parties acknowledge and agree that proprietary or
nonpublic information disclosed by one party (the "DISCLOSING PARTY") to the
other party (the "RECEIVING PARTY") directly or indirectly, which information is
marked as "proprietary" or "confidential" or, if disclosed orally, is designated
as confidential or proprietary at the time of disclosure and reduced in writing
or other tangible (including electronic) form that includes a prominent
confidentiality notice and delivered to the Receiving Party within thirty (30)
days of disclosure, constitutes the confidential and proprietary information
("CONFIDENTIAL INFORMATION") of the Disclosing Party. The Receiving Party shall
retain in confidence and not disclose to any third party any Confidential
Information of the Disclosing Party without the Disclosing Party's express
written consent, and the Receiving Party shall not use such Confidential
Information except to exercise the rights and perform its obligations under this
Agreement. Without limiting the foregoing, each party shall use at least the
same procedures and degree of care which it uses to protect its own Confidential
Information of like importance, and in no event less than reasonable care. The
parties agree that the Software and Documentation, and all information contained
in the Exhibits hereto, will be deemed the Confidential Information of E-Loan.
9.2 EXCEPTIONS. Notwithstanding the foregoing, Confidential Information
will not include information to the extent that, in each case, such information
is demonstrated by written documentation:
(a) was already known the Receiving Party, to the extent such
information was so known by the Receiving Party without an obligation of
confidentiality, at the time of disclosure hereunder;
(b) was generally available to the public or otherwise part of
the public domain at the time of its disclosure to the Receiving Party
hereunder;
(c) became generally available to the public or otherwise part of
the public domain after its disclosure and other than through any act or
omission of the Receiving Party in breach of this Agreement; or
(d) was subsequently lawfully disclosed to the receiving party by
a person other than a party or developed by the Receiving Party without
reference to any information or materials disclosed by the Disclosing Party.
9.3 SOURCE CODE PROTECTIONS. Licensee shall not under any circumstances
provide the source code for the Software in any manner to a third party, except
as expressly provided under Section 9.4 below. Licensee shall reproduce and
shall not obscure or remove any proprietary rights notice on any copy or
Derivative Work of the source code for the Software. In addition, each copy or
Derivative Work of the source code for the Software must be marked as the
confidential and proprietary property of E-Loan to which access is restricted,
and Licensee shall keep and use the source code for the Software solely at
Licensee's secure development facilities under password protection. Licensee
agrees to limit access to the source code for the Software twenty-four hours a
day, and strictly to those employees or Contractors to whom access is reasonably
necessary in order to carry out the permitted uses of the source code for the
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Software hereunder. Licensee shall keep records of all persons who have access
to the source code for the Software. At E-Loan's request, Licensee agrees to
provide such records to E-Loan for review.
9.4 CONTRACTORS. Licensee may appoint a third party contractor
("CONTRACTOR") to assist Licensee in Licensee's operation of the Local Business;
provided, however, that any such Contractor's access to and use of the E-Loan
Technology (including the Localized Version): (a) will only be permitted
pursuant to a signed written agreement between Licensee and such Contractor that
contains terms at least as restrictive as those set forth in this Section 9, (b)
protects E-Loan's proprietary rights in the E-Loan Technology to the degree set
forth in this Agreement, (c) grants the Contractor no rights in the E-Loan
Technology or any modification, enhancement or Derivative Work thereof, and (d)
establishes E-Loan as a third party beneficiary with full legal right to enforce
such agreement against the Contractor ("CONTRACTOR AGREEMENT"). Licensee shall
indemnify and hold harmless E-Loan against any losses arising out of any failure
of its Contractor's to enter into a Contractor Agreement in accordance with this
Section 9.4.
9.5 NOTIFICATION OF SECURITY BREACH. Licensee shall notify E-Loan
promptly in the event of any breach of its security of which Licensee becomes
aware, under conditions in which it would appear that the trade secrets
contained in the source code for the Software or the Localized Version were
prejudiced or exposed to loss. Licensee shall, upon request of E-Loan, take all
other reasonable steps necessary to recover any compromised trade secrets
disclosed to or placed in the possession of Licensee by virtue of this
Agreement. The cost of taking such steps will be borne solely by Licensee.
9.6 INJUNCTIVE RELIEF. In the event of breach of the provisions of
Section 9.1 or 9.3, the non-breaching party may have no adequate remedy at law
and will be entitled to seek immediate injunctive and other equitable relief,
without the necessity of showing actual money damages.
10. TERM AND TERMINATION.
10.1 TERM. This Agreement and the licenses granted hereunder will be
effective as of the Effective Date and will continue in full force and effect
indefinitely (the "TERM"), unless terminated as set forth in this Section 10.
10.2 TERMINATION.
(a) In the event that either party defaults in the performance of
a material obligation under this Agreement, then the non-defaulting party may
provide written notice to the defaulting party indicating: (i) the nature and
basis of such default with reference to the applicable provisions of this
Agreement; and (ii) the non-defaulting party's intention to terminate this
Agreement. In the event that such material default is not cured within ninety
(90) days after such notice the non-defaulting party may terminate this
Agreement upon written notice to the breaching party.
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(b) This Agreement will terminate automatically in the event that
that certain Joint Venture Agreement between E-Loan and SOFTBANK CORP. dated as
of ________, 1999 (the "JOINT VENTURE AGREEMENT") is terminated, except as
otherwise agreed in writing.
10.3 EFFECT OF TERMINATION.
(a) SURVIVAL. The terms and conditions of the following Sections
will survive termination or expiration of this Agreement: 1, 2.3, 2.6, 5.3, 5.4,
6.2, 7, 8, 9, 10.3, 12, 13 and 14. In addition, the termination or expiration of
this Agreement shall not relieve either party of any liability that accrued
prior to such termination or expiration. Except as expressly provided in this
Section 10.3, all other provisions of this Agreement shall terminate upon the
expiration or termination hereof. Upon termination of this Agreement, Licensee
shall cease to exercise all rights and licenses granted under this Agreement and
shall cease using "E-Loan" in its corporate name.
(b) RETURN OF MATERIALS. Within 30 days after the date of
termination or discontinuance of this Agreement for any reason whatsoever,
Licensee shall, at E-Loan's option, return or destroy any copies of the
Software, Documentation, Localized Versions (excluding those portions of such
versions that only represent Localizations owned by Licensee under this
Agreement), and any Confidential Information of E-Loan in its possession that is
in tangible form. Licensee shall furnish E-Loan with a certificate signed by an
executive officer of Licensee verifying that the same has been done.
10.4 LICENSE IF E-LOAN ENTERS BANKRUPTCY. If, at any time during the
Term, E-Loan: (a) files a voluntary petition in bankruptcy under Chapter 7 or 11
United States Code (the "BANKRUPTCY CODE"); or (b) has an involuntary petition
in bankruptcy filed against it under Chapter 7 of the Bankruptcy Code, which
petition is not dismissed within ninety (90) days, Licensee may elect to retain
its right in the licenses granted in this Agreement, subject to the terms of
this Agreement, in accordance with Chapter 3, Section 365(n) of the Bankruptcy
Code. The licenses granted in this Agreement will be deemed licenses of
"intellectual property" under Section 365(n) of the Bankruptcy Code.
11. NONASSIGNMENT/BINDING AGREEMENT. Neither this Agreement, nor any rights
under this Agreement, may be assigned or otherwise transferred by Licensee, in
whole or in part, whether voluntary, or by operation of law, including by way of
sale of assets, merger or consolidation, without the prior written consent of
E-Loan. E-Loan may assign all its rights and obligations under this Agreement to
an Affiliate of E-Loan, or to an entity that succeeds to substantially all of
the business or assets of E-Loan. Any permitted assignee must agree in writing
to be bound by all the terms and conditions of this Agreement. Subject to the
foregoing, this Agreement will be binding upon and inure to the benefit of the
parties and their respective successors and assigns. In the event this Agreement
is assigned to a third party that succeeds to substantially all of the business
or assets of E-Loan, in a transaction in which the shareholders of E-Loan
immediately prior to such transaction own less than 50% of the outstanding
shares of the successor entity immediately after the transaction, then
notwithstanding any other provision of this Agreement, the Software,
Documentation, E-Loan Technology and the E-Loan Brand shall not include any
subject matter owned or controlled by the acquiring entity prior to such
assignment or that is made or acquired by such acquiring entity after the date
of such assignment,
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except to the extent that such subject matter is utilized by such acquiring
entity in the operation of E-Loan's business.
12. 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
originating in Japan, on the date of transmission with receipt of a transmittal
confirmation, (c) if transmitted by facsimile originating in the United States,
on the first (1st) business day following receipt of a transmittal confirmation,
or (d) 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 in writing to the sender by such courier
service. All such notices, requests, demands and other communications shall be
addressed as follows:
If to LICENSEE:
E-Loan Japan K.K.
00-0 Xxxxxxxxxx-Xxxxxxxxxxx
Xxxx-xx, Xxxxx 000-0000
Xxxxx
Attention: Mr. Xxxxxxxxx Xxx
Xxxxxxx Xxxxxxxx, Esq.
Telephone: x00-0-0000-0000
Facsimile x00-0-0000-0000
with a copy (which copy shall not constitute notice) to:
Xxxxxxxx & Xxxxxxxx LLP
AIG Building, 7th Floor
0-0-0 Xxxxxxxxxx,
Xxxxxxx-xx, Xxxxx 000-0000
Xxxxx
Attention: Xxx Xxxxxx, Esq.
Telephone: x00-0-0000-0000
Facsimile: x00-0-0000-0000
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If to E-LOAN:
E-Loan, Inc.
000 Xxxxxxxxxx Xxx., Xxxxx 000
Xxxx Xxxx, XX 00000
U.S.A.
Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (which copy shall not constitute notice) to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
U.S.A.
Attention: Xxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address or facsimile number as a party may have specified to
the other party in writing delivered in accordance with this Section 12.
13. NON-SOLICITATION. Each party acknowledges and agrees that the employees and
consultants of the other party are a valuable asset of such party and are
difficult to replace. Accordingly, each party (the "SOLICITING PARTY") agrees
that, for the Term and for a period of two years thereafter, it will not
actively solicit any employee, independent contractor, or consultant of the
other party to become an employee or consultant of the Soliciting Party.
14. MISCELLANEOUS.
14.1 NO WAIVER; AMENDMENT. Any waiver of the provisions of this
Agreement or of a party's rights or remedies under this Agreement must be in
writing to be effective. Failure, neglect, or delay by a party to enforce the
provisions of this Agreement or its rights or remedies at any time will not be
construed and will not be deemed to be a waiver of such party's rights under
this Agreement and will not in any way affect the validity of the whole or any
part of this Agreement or prejudice such party's right to take subsequent
action. This Agreement may not be amended, except by a writing signed by both
parties.
14.2 SEVERABILITY. If any provision in this Agreement shall be found or
be held to be invalid or unenforceable (including, without limitation, as a
result of 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,
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a substitute, valid and enforceable provision or agreement which most nearly
affects the parties' intent in entering into this Agreement.
14.3 ENTIRE AGREEMENT. This Agreement (including the Exhibits and any
addenda hereto signed by both parties) and the other documents referred to
herein, contain the entire agreement of the parties with respect to the subject
matter of this Agreement and supersedes all previous communications,
representations, understandings and agreements, either oral or written, between
the parties with respect to said subject matter.
14.4 CONSENT. Unless expressly provided otherwise in this Agreement, any
prior consent that is required hereunder may be granted or withheld in the sole
and absolute discretion of the party whose consent is required.
14.5 CURRENCY. All payments contemplated hereby or made by the parties
in connection herewith will be made in the lawful currency of the United States
of America. Any calculation under this Agreement that requires conversion of yen
or any other non-U.S. currency to U. S. dollars shall be made at the buying rate
for U.S. dollars as set forth in the U.S. version of the Wall Street Journal,
West Coast edition, on the date that payment is made ("EXCHANGE RATE").
Notwithstanding the foregoing, if any payment due from Licensee to E-Loan is not
made when due, Licensee shall pay E-Loan the greater of (i) the amount based on
the Exchange Rate calculated as of the date when payment became due and (ii) the
amount based on the Exchange Rate calculated as of the date when payment is
actually made, in each case together with interest thereon at the prime rate as
reported by the Wall Street Journal, West Coast edition.
14.6 EXPORT RESTRICTIONS. Licensee understands that E-Loan is subject to
regulation by agencies of the U.S. government, including, but not limited to,
the U.S. Department of Commerce, which prohibit export or diversion of certain
technical products to certain countries. Licensee warrants that it will comply
in all respects with the Export Administration Regulations and all other export
or re-export restrictions applicable to the technology and Documentation
licensed hereunder. Further, Licensee shall cooperate as requested by E-Loan to
ensure compliance with any export restrictions or licenses relating to the
Software. Notwithstanding the foregoing, it is understood and agreed that the
rights and licenses granted herein are limited to the extent that E-Loan may
grant such rights and licenses under applicable law.
14.7 PUBLICITY. Each of the parties hereto agrees not to disclose to any
third party the financial terms of this Agreement without the prior written
consent of the other party hereto, except to advisors, investors and others on a
need-to-know basis under circumstances that reasonably ensure the
confidentiality thereof, or to the extent required by law. Notwithstanding the
foregoing, the parties shall agree upon a press release to announce the
execution of this Agreement, together with a corresponding Question & Answer
outline for use in responding to inquiries about the Agreement; thereafter, the
parties may each disclose to third parties the information contained in such
press release and Question & Answer outline without further approval.
14.8 RIGHTS AND REMEDIES. No exercise or enforcement by either party of
any right or remedy under this Agreement will preclude the enforcement by such
party of any other right or remedy under this Agreement or that such party is
entitled by law to enforce.
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14.9 RELATIONSHIP BETWEEN PARTIES; THIRD-PARTY BENEFICIARY. E-Loan and
Licensee shall at all times and for all purposes be deemed to be independent
contractors and neither party, nor either party's employees, representatives,
subcontractors or agents, shall have the right or power to bind the other party.
This Agreement shall not itself create or be deemed to create a joint venture,
partnership or similar association between E-Loan and Licensee or either party's
employees, subcontractors or agents. E-Loan expressly acknowledges and agrees
that SOFTBANK CORP. is a beneficiary of this Agreement and shall have the right
to enforce its terms against E-Loan.
14.10 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which so executed will be deemed to be an original and such counterparts
together will constitute one and the same agreement.
14.11 GOVERNING LAW. This Agreement will be interpreted and construed in
accordance with the laws of the State of California and the United States of
America, without regard to conflict of law principles and excluding the 1980
United Nations Convention on Contracts for the International Sale of Goods.
14.12 LANGUAGE. This Agreement is in the English language only, which
language will be controlling in all respects, and all versions hereof in any
other language shall not be binding on the parties hereto. All communications
and notices to be made or given pursuant to this Agreement will be in the
English language.
14.13 FORCE MAJEURE. Neither party will be liable for damages or
penalties or held in default for delay in delivery or performance or for failure
to give notice of delay when the delay is due to the elements, acts of God,
delays in transportation or delivery, or any other causes beyond the reasonable
control of such party; provided, however, that cause beyond the reasonable
control of such party do not include any order, regulation or written directive
of such party.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by duly
authorized representatives on the dates set forth below.
E-LOAN, INC. ("E-Loan") [E-LOAN JAPAN] ("Licensee")
By:_______________________________ By:______________________________________
Name:_____________________________ Name:____________________________________
Title:____________________________ Title:___________________________________
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EXHIBIT A
SOFTWARE
The following E-Loan modules in the form currently in use by E-Loan as of the
Effective Date:
[ ] Rate Searching Engine
[ ] Loan Comparison
[ ] Template Process to build web sites
[ ] E-TRACK-- monitor the status of the loan, which includes:
Log-ins
Automated emails
[ ] Interface with loan processing software
[ ] Display of loan information
[ ] Marketing Survey Components
[ ] Report Server with reports for:
Operations
Web Site Info
[ ] Forms Printing Engine
[ ] Rate Loading Engine
[ ] "Smart" Online Application Process
[ ] Rate Watch/Loan Monitoring Technology with Automated Emails
[ ] Calculators
"Licensee": "E-Loan":
By:_______________________________ By:______________________________________
Print Name:_______________________ Print Name:______________________________
Title:____________________________ Title:___________________________________
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EXHIBIT B
E-LOAN'S GLOBAL BRAND PROTOCOLS
1. E-Loan's advertising tag line is: "A better way to get a loan." This tag line
must be used in all advertising, and must be prominently displayed at all places
where E-Loan's logo is placed. No other tag lines should be used in connection
with the E-LOAN trademark or logo.
2. These trademark usage guidelines apply to the authorized use of all of the
trademarks, service marks and logos of E-Loan in connection with E-Loan's
products and services, in advertisements, labels, product guides, catalogs,
brochures, instruction manuals, customer communications, press releases,
packaging, electronic communications and all other uses of E-Loan trademarks.
For convenience, "trademarks" include registered or unregistered trademarks,
service marks or brand names of E-Loan.
3. Before you may use E-Loan trademarks, you must obtain E-Loan's prior review
and written approval, in its reasonable discretion, of the form, content and
context of any intended use. This does not apply if the use is a customary
incidental use in advertising, but in that case, proper attribution to E-Loan as
the trademark owner is required.
3. The following general rules apply:
[ ] Spell the trademark correctly and do not abbreviate it.
[ ] Use capitalization consistently.
[ ] Use a standard appearance for the trademark.
[ ] Use a proper trademark notice at least once, the first time the E-LOAN
trademark appears: we prefer you to use the notice each time the trademark
is used. Use (R) for registered trademarks, "TM" for unregistered
trademarks, and "SM" for unregistered service marks. If you have any
questions about which marks are registered, ask us.
[ ] Use the trademark only as a brand name in conjunction with a specific
product or service, e.g., E-LOAN mortgage services. " E-LOAN " alone is
not appropriate. Use the trademark only as an adjective modifying a
generic product ("the E-LOAN Internet mortgage service"), and never as a
noun or a verb ("an E-LOAN ").
[ ] Always give E-Loan attribution as the trademark owner any time E-LOAN
trademarks are used, e.g., " E-LOAN is a registered trademark of E-LOAN,
Inc".
5. Notify E-Loan immediately of any improper, confusing or unauthorized use of
the E-LOAN trademarks by anybody. You should not take any action which leads a
third party to think the E-LOAN trademarks are owned by you, or which might
adversely impact E-Loan's reputation. You are expected to use the E-LOAN
trademarks at all times in a manner consistent with trademark laws.
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6. When you use the logo, please adhere to the following specifications:
(a) The Logo should be reproduced in the following colors: Pantone 343 CV
(100%), Pantone 145 CV (80%). All elements of the Logo must be used. The
logotype is in the font "Custom." Downloadable samples are available at E-Loan's
web site at URL: _____________.
(b) Clear Space: To maintain the characteristic of the Logo, it must be
surrounded by clear space. This space should be free of any type or graphic of
any kind. The amount of clear space around the Logo should be the height of the
"E" in the logotype on the sides and bottom.
(c) Size Requirements: The Logo should never be reproduced smaller than 8 mm
high and 32 mm wide in print. The Logo is measured from the tip of the outline
to the bottom of the type. For on-screen usage, the minimum size of the Logo is
23 pixels high and 90 pixels wide.
(d) Usage on Colored/Textured Backgrounds: When placing the E-LOAN Logo on a
solid background other than black or white, the background color must not
visually interfere with the colors of the logo. For example, the background must
not be of any of the colors ______________ or any CMYK combination of these
colors. However, the E-LOAN logotype can be black or white (please refer to
downloadable files). When placing the logo on a textured background, the overall
coloration of the background must be light enough so that the logo can be seen
clearly.
"Licensee": "E-Loan":
By:_______________________________ By:______________________________________
Print Name:_______________________ Print Name:______________________________
Title:____________________________ Title:___________________________________
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EXHIBIT C
SERVICES AGREEMENT
AGREEMENT FOR CONSULTING BY E-LOAN
This Agreement for Consulting ("AGREEMENT") is made and entered into as
of the ___ day of _______, 199__ by and between E-Loan, Inc., a _________
corporation with offices at 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxx,
Xxxxxxxxxx, 00000 ("E-LOAN"), and [E-LOAN JAPAN K.K.], a kabushiki kaisha
organized under the laws of Japan with offices at _____________ ("LICENSEE")
("LICENSEE"). The Licensee desires to retain E-Loan as an independent contractor
to perform certain development and consulting services for the Licensee as
described in the License and Services Agreement between the parties dated
___________ ("LICENSE AND SERVICES AGREEMENT"), and E-Loan is willing to perform
such services on terms set forth more fully below. In consideration of the
mutual promises contained herein, the parties agree as follows:
1. SERVICES.
(a) WORK ORDERS. The parties may from time to time agree upon
certain software development and related services to be provided by E-Loan under
this Agreement ("SERVICES"). The parties shall develop a description of such
Services in reasonable detail ("WORK ORDER") in a form substantially as set
forth in the form of Work Order attached hereto as Exhibit A. E-Loan shall
perform for Licensee the services described in each Work Order on the terms and
conditions set forth therein. The parties acknowledge that Licensee may have
certain obligations under each Work Order, and all of E-Loan's obligations will
be subject to the prompt performance of Licensee's obligations thereunder.
(b) CHANGE ORDERS. Any changes to Specifications are subject to
mutual agreement.
2. COMPENSATION.
(a) SERVICES. Licensee shall pay E-Loan for performing the
Services as shown in the Work Order.
(b) EXPENSES. The Licensee shall also reimburse E-Loan for the
reasonable actual travel and living expenses of its personnel engaged in the
performance of Services at locations other than E-Loan facilities, together with
other reasonable out-of-pocket expenses incurred in connection with performance
of the Services. E-Loan shall adhere to any travel policy reasonably promulgated
by Licensee, provided that E-Loan may incur expenses up to a total of ________
dollars without Licensee's prior approval.
(c) PAYMENTS. E-Loan shall invoice Licensee for all amounts on or
after the due date. Payment terms will be net [thirty (30)] days. Any amounts
due E-Loan under this Agreement not received by the date due will be subject to
a service charge of one and one-half
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percent (1.5%) per month, or the maximum charge permitted by law, whichever is
less. Any payment terms set forth in the applicable Work Order will take
precedence over this Section 2(c).
3. CONFIDENTIALITY. All information disclosed under this Agreement will
be deemed Confidential Information of E-Loan pursuant to Section 9 of the
License and Services Agreement.
4. OWNERSHIP.
(a) THIRD PARTY MATERIALS. For all materials designated as "THIRD
PARTY MATERIALS" on the Work Order, the parties hereby agree that such materials
may be necessary for Licensee to use the Licensee Materials or E-Loan Materials,
and Licensee will be solely responsible for obtaining necessary licenses to the
Third Party Materials.
(b) LICENSEE MATERIALS. E-Loan and Licensee agree that all
deliverables, inventions, materials, and other work product developed under this
Agreement, and all intellectual property rights relating thereto, including, but
not limited to, all patent, copyright, trade secret and trademark rights
("LICENSEE MATERIALS"), will be owned by Licensee. E-Loan hereby assigns,
transfers and conveys, and agrees to assign, transfer and convey all right,
title and interest in and to the Licensee Materials to the full extent of
E-Loan's ownership interest therein, including the right to commence and
maintain all causes of action relating thereto and to retain any proceeds or
enjoy any remedies resulting from such causes of action. E-Loan agrees to
execute such written instruments and do such other acts, at Licensee's expense,
as may be necessary or useful in the opinion of Licensee to obtain and/or
enforce Licensee's rights in the Licensee Materials. E-Loan hereby irrevocably
appoints Licensee and any of its officers as the E-Loan's attorney-in-fact to
execute all such instruments and do all such acts in the event E-Loan fails to
do so. To the extent, if any, that, notwithstanding the foregoing, E-Loan
retains any right, title or interest with respect to the Licensee Materials,
E-Loan hereby grants to Licensee a perpetual, irrevocable, exclusive, fully
paid-up, royalty-free, transferable, assignable and sublicensable worldwide
right and license to copy, use, display, distribute and create derivative works
of the Licensee Materials. E-Loan further waives any "moral" rights or other
rights with respect to attribution of inventorship or integrity of the licensed
Licensee Materials that E-Loan may have under any applicable law or under any
legal theory.
5. TERM AND TERMINATION.
(a) TERM. This Agreement will commence on the date first written
above and will continue indefinitely or as provided below.
(b) TERMINATION. The Licensee may terminate this Agreement or any
Work Order at any time upon giving ten (10) days' prior written notice thereof
to E-Loan, provided, however, that Licensee shall pay E-Loan for any Services
performed up to the effective date of termination, and, promptly upon E-Loan's
request, pay all of E-Loan's sunk costs related to any terminated Work Order,
including without limitation any cancellation payments to third parties to
terminate contracts entered into by E-Loan in reliance upon the Work Order.
E-Loan shall deliver any work in process promptly after such payments. Such work
in process will be provided "as is," and will not be subject to the warranty in
Section 8. Either party may terminate
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this Agreement upon thirty (30) days' notice of any uncured material breach of
this Agreement by the other party.
(c) SURVIVAL. Upon such termination all rights and duties of the
parties toward each other shall cease except Sections 3, 4, 7, 8, 9, 10, 11, and
12 will survive termination of this Agreement.
6. ASSIGNMENT. Neither this Agreement nor any right hereunder or
interest herein may be assigned or transferred by either party without the
express written consent of the other, except to a permitted assignee of the
License and Services Agreement.
7. INDEPENDENT CONTRACTORS. Nothing in this Agreement shall in any way
be construed to constitute E-Loan as an agent, employee or representative of the
Licensee, but E-Loan shall perform the Services hereunder as an independent
contractor.
8. WARRANTY AND DISCLAIMER.
(a) The warranties set forth in Sections 5.1 of the License and
Services Agreement and the indemnification obligation set forth in Section 8.1
of the License and Services Agreement shall apply to the Licensee Materials.
(b) OTHER THAN AS EXPLICITLY SET FORTH IN THIS SECTION 8, E-LOAN
DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY AND ALL IMPLIED WARRANTIES OF
TITLE MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
9. LIMITATION OF REMEDIES AND DAMAGES. EXCEPT WITH REGARD TO LIABILITY
ARISING UNDER SECTION 8(a), EACH PARTY'S LIABILITY ARISING HEREUNDER WILL BE
LIMITED TO FEES PAID BY LICENSEE HEREUNDER. NEITHER PARTY WILL BE LIABLE FOR ANY
CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION
DAMAGES FOR LOSS OF BUSINESS PROFITS AND/OR BUSINESS INTERRUPTION, WHETHER
FORESEEABLE OR NOT, AND WHETHER ARISING IN CONTRACT, TORT, OR NEGLIGENCE, EVEN
IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY.
10. ENTIRE AGREEMENT. This Agreement, together with the License and
Services Agreement between the parties and the Exhibits hereto and thereto form
the entire agreement of the parties and supersede any prior agreements between
them with respect to the subject matter hereof.
11. MISCELLANEOUS. Section 14 of the License and Services Agreement is
hereby incorporated herein by reference, and shall apply to this Agreement as if
set forth herein in its entirety.
12. WAIVER. Waiver of any term or provision of this Agreement or
forbearance to enforce any term or provision by either party shall not
constitute a waiver as to any subsequent
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breach or failure of the same term or provision or a waiver of any other term or
provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
"Licensee": "E-Loan":
By:_______________________________ By:______________________________________
Print Name:_______________________ Print Name:______________________________
Title:____________________________ Title:___________________________________
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EXHIBIT A
WORK ORDER FORMAT
Services to be performed by E-Loan:
Compensation of E-Loan:
(a) Rate of pay: per
(b) Total payment limitation:
(c) Advance payment:
(d) Expenses authorized for reimbursement by the Licensee:
(e) Other:
(f) Expected duration of project:
"Licensee": "E-Loan":
By:_______________________________ By:______________________________________
Print Name:_______________________ Print Name:______________________________
Title:____________________________ Title:___________________________________
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EXHIBIT D
WORK ORDER FOR INITIAL LOCALIZATION SOFTWARE DEVELOPMENTS
SPECIFICATIONS: [TO BE PROVIDED BY LICENSEE]
"Licensee": "E-Loan":
By:_______________________________ By:______________________________________
Print Name:_______________________ Print Name:______________________________
Title:____________________________ Title:___________________________________
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EXHIBIT E
E-LOAN TECHNICAL SUPPORT ESCALATION PROCEDURES
There will be one named primary technical support contact and one named backup
support contact. All requests for technical support must come from the primary
support contact. In the event the primary contact is not available, the backup
contact may submit the technical support request. The primary support contact
will be _________________________ and the backup support contract will be
____________________________.
Changes to the primary and/or backup support contacts must be received by E-Loan
or Licensee in writing 1 business day prior to them being effective.
[ESCALATION PROCEDURES WILL BE ADDED BELOW, WITH A CHART LISTING TYPES OF ERRORS
AND RESPONSES]
E-Loan will provide help desk support (i.e. other than reporting of Errors) by
pager and call-back from the hours of____________ to______________ Pacific Time
on U.S. business days. E-Loan will handle all help desk inquiries during other
hours by U.S. next business day email or fax back.
"Licensee": "E-Loan":
By:_______________________________ By:______________________________________
Print Name:_______________________ Print Name:______________________________
Title:____________________________ Title:___________________________________
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EXHIBIT 4.6
Actions Requiring E-LOAN Consent
Notwithstanding any other provision of this Agreement, each of the
following acts will require E-LOAN's prior written consent, which consent or
notice of non-consent shall be provided within ten (10) Business Days after
receipt of notice of the Company's intent to take such action:
FOR SO LONG AS E-LOAN OWNS NOT LESS THAN A TWENTY PERCENT (20%) COMPANY
INTEREST:
(1) The adoption, amendment or repeal of any article of the Articles (i)
providing E-LOAN with protective voting rights, (ii) designating the Company's
corporate name or business or (iii) effecting any change in the Company's
capital structure (other than an amendment increasing the Company's authorized
capital or otherwise necessary in connection with such an increase);
(2) The declaration or payment of any dividend or other distribution
with respect to Securities;
(3) Any merger or consolidation of the Company, whether or not the
Company is the surviving entity, or any sale of all or substantially all of the
Company's assets;
(4) The Company's investment of capital in, or acquisition of, any
interest in another entity;
(5) The change of the Company's principal business;
(6) Any new issuance of Securities to any Person other than a Party
(except as provided in Section 3.2 or Section 3.4); and
(7) Any new financial assistance requested by the Board pursuant to
Section 3.3(b).
FOR SO LONG AS E-LOAN OWNS ANY COMPANY INTEREST:
(8) The sale, sublicense, encumbrance or any other transfer of any
proprietary rights by the Company; and
(9) Any amendment to the License Agreement.
