Exhibit 10.2
TERMINATION AGREEMENT AND GENERAL RELEASE
This TERMINATION AGREEMENT AND GENERAL RELEASE (hereinafter, the
"TERMINATION AGREEMENT") is hereby entered into as of the 20th day of August
2001, by and between SoundView Technology Group, Inc., a Delaware corporation
formerly known as Wit SoundView Group, Inc. and as Wit Capital Group, Inc. ("WIT
SOUNDVIEW"), and E*TRADE Group Inc., a Delaware corporation ("E*TRADE"). Wit
SoundView and E*TRADE are referred to herein as the "PARTIES," and each of them
individually as a "PARTY."
RECITALS
WHEREAS, Wit SoundView and E*TRADE are Parties to that certain Amended
and Restated Strategic Alliance Agreement, dated as of September 26, 2000 (the
"STRATEGIC ALLIANCE AGREEMENT");
WHEREAS, Wit SoundView, Wit SoundView Corporation, a Delaware
corporation, and E*OFFERING Corp., a California corporation ("E*OFFERING") are
parties to that certain Agreement and Plan of Merger dated as of May 15, 2000
(the "MERGER AGREEMENT");
WHEREAS, pursuant to Section 4.2(b) of the Merger Agreement, E*OFFERING
obtained the consent of certain of its shareholders, including E*TRADE, to
certain restrictions on the common stock received by such shareholders pursuant
to the Merger Agreement, which restrictions include the deposit of a portion of
such shares in a "SPECIAL ESCROW FUND" (as defined in the Merger Agreement) for
a period of three (3) years;
WHEREAS, Wit SoundView, Wit Capital Corporation, a Delaware corporation
("WIT CAPITAL CORPORATION"), and E*TRADE are parties to that certain Account
Transfer Agreement, dated as of May 15, 2000 (the "ACCOUNT TRANSFER AGREEMENT");
WHEREAS, Wit SoundView, E*TRADE and certain entities affiliated with
General Atlantic Partners, LLC are parties to that certain Stock Purchase
Agreement dated as of May 15, 2000 (the "STOCK PURCHASE AGREEMENT");
WHEREAS, Wit SoundView and E*TRADE are parties to that certain
Standstill Agreement, dated as of May 15, 2000 (the "STANDSTILL AGREEMENT");
WHEREAS, the Parties seek to (i) terminate certain of the obligations
and rights arising under the Strategic Alliance Agreement and (ii) enter into a
new agreement that will describe the relationship between the Parties going
forward ("the RELATIONSHIP AGREEMENT");
WHEREAS, simultaneously herewith, E*TRADE seeks to transfer to Wit
SoundView certain warrants to purchase shares and shares of common stock, par
value $0.01 per share (the "COMMON STOCK") of Wit SoundView;
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein, and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto agree as
follows:
AGREEMENT
1. STOCK TRANSFER AND WARRANTS CANCELLATION. In consideration of the
obligations and transactions set forth herein, E*TRADE agrees to transfer to Wit
SoundView, and Wit SoundView agrees to acquire from E*TRADE, (i) nine million
three hundred forty nine thousand seven hundred sixty four (9,349,764) shares of
Common Stock (the "SHARES") and (ii) those certain warrants entitling E*TRADE to
purchase (a) one million eight hundred twenty one thousand nine hundred thirty
six (1,821,936) shares of Common Stock at a price of $0.60 per share and (b) two
million (2,000,000) shares of Common Stock at a price of $10.25 per share
(collectively the "WARRANTS"); PROVIDED, HOWEVER, that E*TRADE shall be
permitted in its sole and absolute discretion to determine which of its shares
of Common Stock shall be transferred to Wit SoundView pursuant to this
Termination Agreement. The Shares and the Warrants shall be duly endorsed or
accompanied by stock powers duly endorsed in blank.
2. TERMINATION OF AGREEMENTS.
(a) Wit SoundView and E*TRADE agree and acknowledge that, upon
execution and delivery of this Termination Agreement and the delivery
of the Shares and Warrants to Wit Sound View, the Strategic Alliance
Agreement is hereby terminated in its entirety and shall be of no
further force or effect and neither of the Parties shall have any
obligation to the other Party under the Strategic Alliance Agreement.
(b) Wit SoundView and E*TRADE agree and acknowledge that, except as
specifically provided in this Termination Agreement, nothing in this
Termination Agreement shall terminate or otherwise affect the rights
and obligations of the respective parties to the Merger Agreement, the
Account Transfer Agreement, the Stock Purchase Agreement and the
Standstill Agreement.
3. FUTURE RELATIONSHIP OF THE PARTIES. The Parties shall enter into a
new business relationship as set forth in the Relationship Agreement attached as
Exhibit 1 to this Termination Agreement, which Relationship Agreement shall be
executed simultaneously with the execution of this Termination Agreement.
4. REMOVAL OF TRANSFER RESTRICTIONS.
(a) Wit SoundView and E*TRADE agree and acknowledge that simultaneously
with the execution of this Termination Agreement, Wit SoundView shall
take
reasonable commercial steps to cause the shares of Wit SoundView common
stock issued to E*TRADE and certain other shareholders pursuant to the
Merger Agreement that are held in the Special Escrow Fund to be
released from the Special Escrow Fund; PROVIDED, HOWEVER, that nothing
in this Termination Agreement shall terminate or otherwise affect the
rights and obligations of the parties to the Merger Agreement.
(b) Wit SoundView agrees to cause all remaining restrictions on the
transfer of shares of Common Stock beneficially owned by E*TRADE
(whether from the Strategic Alliance Agreement or the Merger Agreement)
to be removed, except for those restrictions based on federal and state
securities laws; PROVIDED, HOWEVER, that nothing in this Termination
Agreement shall terminate or otherwise affect the rights and
obligations of the parties to the Merger Agreement.
(c) In order to effect the removal of the restrictions on transfer of
the shares as described in this Section 4, the holders of these shares
shall present their shares to Wit SoundView, and Wit SoundView shall
direct its transfer agent to promptly return to the holders
certificates representing such shares bearing only the following
legend: "The shares represented hereby have not been registered under
the Securities Act of 1933, as amended, and may not be sold,
transferred, assigned, pledged, or hypothecated unless and until
registered under such Act, or unless the company has received an
opinion of counsel or other evidence satisfactory to the company and
its counsel, that such registration is not required." All other
restrictive legends shall be removed from the revised certificates. In
addition, Wit SoundView shall promptly notify the transfer agent that
the shares are subject only to the foregoing restrictions.
5. REGISTRATION RIGHTS. Wit SoundView agrees to take reasonable
commercial steps to register the shares of Common Stock beneficially owned by
E*TRADE following the transfers described in Section 1 above as provided in, and
subject to the terms of, the Registration Rights Agreement dated as of October
16, 2000 between the Parties and certain other shareholders.
6. HIRING OF EMPLOYEES AND CONSULTANTS. E*TRADE shall not be prohibited
in any manner from hiring as an employee or consultant any employee or
consultant of Wit SoundView. Wit SoundView shall not be prohibited in any manner
from hiring as an employee or consultant any employee or consultant of E*TRADE.
7. MARKETING MATERIALS. Wit SoundView and E*TRADE shall promptly take
commercially reasonable steps to remove all references to any activities with
the other formerly conducted pursuant to the Strategic Alliance Agreement in
their marketing materials and brochures. From and after the date hereof, E*TRADE
and its affiliates agree not to refer in any Marketing Materials to Wit
SoundView without the prior written consent of Wit SoundView, and Wit SoundView
agrees not to refer in any Marketing Materials to E*TRADE or any of its
affiliates without the prior written consent of
E*TRADE or any of its affiliates, in each case, such consent not to be
unreasonably withheld or delayed.
8. RESEARCH PRODUCTS PREPARED BY WIT SOUNDVIEW. E*TRADE may continue to
provide research products developed by Wit SoundView for the benefit and use by
the retail customers of E*TRADE on a non-exclusive basis on terms and conditions
to be mutually agreed by the Parties.
9. CONFIDENTIALITY.
(a) CONFIDENTIAL INFORMATION. For purposes of this Termination
Agreement, "CONFIDENTIAL INFORMATION" of a Party means any information
disclosed by that Party to another Party pursuant to the Strategic
Alliance Agreement, and which the disclosing Party has not specifically
identified in writing as non-confidential to the receiving Party,
including, but not limited to, that which relates to patents, patent
applications, research, product plans, products, developments,
inventions, processes, designs, drawings; engineering, formulae,
markets, software (including source and object code), hardware
configuration, computer programs, algorithms, regulatory information,
medical reports, clinical data and analysis, business plans, agreements
with third parties, services, customers, marketing or finances of the
disclosing Party.
(b) RETURN OF CONFIDENTIAL INFORMATION. Promptly following execution
and delivery of this Termination Agreement, except as may be necessary
to retain in connection with the Parties' obligations and
responsibilities pursuant to the Relationship Agreement or under
applicable law, (a) E*TRADE shall return to Wit SoundView (or, at the
request of Wit SoundView, destroy) any and all Confidential Information
of Wit SoundView which is in the possession or control of E*TRADE, and
(b) Wit SoundView shall return to E*TRADE (or, at the request of
E*TRADE, destroy) any and all Confidential Information of E*TRADE which
is in the possession or control of Wit SoundView.
(c) NONDISCLOSURE. Notwithstanding the return of Confidential
Information pursuant to Section 9(b) above, the termination of the
Strategic Alliance Agreement pursuant to Section 2 or any of the other
provisions of this Termination Agreement, each of the Parties shall
continue to treat as confidential all Confidential Information of the
other Party, shall not use such Confidential Information for any
purpose whatsoever, and shall use reasonable efforts not to disclose
such Confidential Information to any third party. Without limiting the
foregoing, each of the Parties shall use at least the same degree of
care which it uses to prevent the disclosure of its own confidential
information of like importance to prevent the disclosure of
Confidential Information disclosed to it by the other Party under any
of the relevant agreements. Each Party shall promptly notify the
applicable Party of any actual or suspected misuse or unauthorized
disclosure of such other Party's Confidential Information.
(d) EXCEPTIONS. Notwithstanding the above, no Party shall have
liability to the other Party with regard to any Confidential
Information of the other which the receiving Party can prove: (i) was
in the public domain at the time it was disclosed or has entered the
public domain through no fault of the receiving Party; (ii) was known
to the receiving Party, without restriction, at the time of disclosure,
as demonstrated by files in existence at the time of disclosure; (iii)
is disclosed with the prior written approval of the other Party; (iv)
was independently developed by the receiving Party without any use of
the Confidential Information, as demonstrated by files created at the
time of such independent development; (v) becomes known to the
receiving Party, without restriction, from a source other than the
other Party without breach of this Termination Agreement by the
receiving Party and otherwise not in violation of the other Party's
rights; or (vi) is disclosed pursuant to the order or requirement of a
court, administrative agency, or other governmental body; PROVIDED,
HOWEVER, that the receiving Party shall provide prompt notice thereof
to the other Party to enable the other Party to seek a protective order
or otherwise prevent or restrict such disclosure.
(e) REMEDIES. Any breach of the restrictions contained in this Section
9 may cause irreparable harm to the non-breaching Parties. Any such
breach shall entitle the nonbreaching Parties to injunctive relief in
addition to all legal remedies.
For purposes of this Section 9, the term "Party" shall include
all controlled affiliates of such Party.
10. REPRESENTATIONS AND WARRANTIES OF E*TRADE. E*TRADE represents and
warrants to Wit SoundView as of the date hereof that:
(a) CORPORATION EXISTENCE AND POWER. E*TRADE is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware and has all corporate powers and all governmental licenses,
authorizations, permits, consents and approvals required to carry on its
business as now conducted, and to enter into and perform its obligations under
this Termination Agreement, except for those licenses, authorizations, permits,
consents and approvals the absence of which would not have a material adverse
effect on its ability to carry out the transactions contemplated herein.
(b) CORPORATE AUTHORIZATION. The execution, delivery and performance by
E*TRADE of this Termination Agreement and the consummation of the transactions
contemplated hereby, including the release of claims herewith, is within
E*TRADE's corporate powers and has been duly authorized by all necessary
corporate action on the part of E*TRADE. This Termination Agreement constitutes
a valid and binding agreement of E*TRADE enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights and remedies generally.
(c) OWNERSHIP OF THE SHARES AND THE WARRANTS. E*TRADE is the record and
beneficial owner of the Shares and the Warrants, free and clear of any lien,
security interest or other encumbrance, and will transfer and deliver to Wit
SoundView good and valid title to the Shares and the Warrants free and clear of
any lien, security interest or other encumbrance. E*TRADE has not granted any
option or other right to acquire the Shares, the Warrants or any shares of
Common Stock underlying the Warrants. E*TRADE irrevocably and permanently waives
any and all preemptive rights, rights of first refusal or other similar rights
to acquire any equity security of Wit SoundView or participate in any financing
of Wit SoundView.
(d) NON-CONTRAVENTION. The execution and delivery by E*TRADE of this
Termination Agreement, the consummation of the transactions contemplated hereby
and thereby, and compliance by E*TRADE with any of the provisions hereof and
thereof will not conflict with, constitute a default under or violate (x) any of
the terms, conditions or provisions of the certificate of incorporation or
by-laws of E*TRADE, (y) any of the terms, conditions or provisions of any
document, agreement or other instrument to which E*TRADE is a party or by which
its property is bound, or (z) any judgment, writ, injunction, decree, order or
ruling of any court or governmental authority binding on E*TRADE or its
property.
(e) INFORMATION. E*TRADE has not sought, and wishes not to obtain, any
other information from or about Wit SoundView other than the representations and
warranties set forth in Section 11.
11. REPRESENTATIONS AND WARRANTIES OF WIT SOUNDVIEW. Wit SoundView
represents and warrants to E*TRADE as of the date hereof that:
(a) CORPORATION EXISTENCE AND POWER. Wit SoundView is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Delaware and has all corporate powers and all material governmental
licenses, authorizations, permits, consents and approvals required to carry on
its business as now conducted and to enter into and perform its obligations
under this Termination Agreement, except for those licenses, authorizations,
permits, consents and approvals the absence of which would not have a material
adverse effect on its ability to carry out the transactions contemplated herein.
(b) CORPORATION AUTHORIZATION. The execution, delivery and performance
by E*TRADE of this Termination Agreement and the consummation of the
transactions contemplated hereby, including the release of claims herewith, is
within the corporate powers of Wit SoundView and have been duly authorized by
all necessary corporate action on the part of Wit SoundView. This Termination
Agreement constitutes a valid and binding agreement of Wit SoundView,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights and remedies generally.
(c) NON-CONTRAVENTION. The execution and delivery by Wit SoundView of
this Termination Agreement and the consummation of the transactions contemplated
hereby, and compliance by Wit SoundView with any of the provisions hereof will
not conflict with, constitute a default under or violate (x) any of the terms,
conditions or provisions of its certificate of incorporation or by-laws, (y) any
of the terms, conditions or provisions of any document, agreement or other
instrument to which Wit SoundView is a party or by which its property is bound,
or (z) any judgment, writ, injunction, decree, order or ruling of any court or
governmental authority binding on it or its property.
(d) INFORMATION. Wit SoundView has not sought, and wishes not to
obtain, any other information from or about E*TRADE other than the
representations and warranties set forth in Section 10.
12. RELIANCE ON INDEPENDENT LEGAL ADVICE. Each of the Parties further
represent and warrant to each other, as of the date hereof:
(e) That it has received advice from its own, independent legal counsel
prior to its execution of this Termination Agreement;
(f) That the legal nature and effect of this Termination Agreement has
been explained to it by its counsel;
(g) That it fully understands the terms and provisions of this
Termination Agreement and the nature and effect thereof;
(h) That it has not relied and is not relying upon any representation
or statement of any person not contained in this Termination Agreement or on the
advice of any counsel other than its own counsel;
(i) That it has carefully read this Termination Agreement, knows the
contents hereof, and is executing the same freely and voluntarily; and
(j) That it is aware that it or its attorneys may hereafter discover
facts different from or in addition to the facts that it now knows or believes
to be true with respect to the subject matter of this Termination Agreement or
the other Party hereto, but that it is its intention to fully and finally
release each of its respective releasees to the full extent of the releases
contained in this Termination Agreement, and to otherwise agree to the other
terms and conditions of this Termination Agreement.
13. WAIVER OF CIVIL CODE SECTION 1542. Each Party represents, warrants,
and agrees that it has been informed of, has read, is familiar with,
understands, and does hereby expressly waive all rights that it has or may have
under Section 1542 of the California Civil Code and all other similar rights in
other states or territories of the United States of America, or any other
jurisdiction, as said Section may apply to the releases in this Termination
Agreement only. Said Section 1542 provides:
A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME
OF EXECUTING THE RELEASE, WHICH IF KNOWN
BY HIM, MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR
14. GLOBAL RELEASE OF ALL CLAIMS AGAINST E*TRADE BY WIT SOUNDVIEW.
Effective as of the date hereof, Wit SoundView, for itself, and for any parent,
subsidiary or affiliate corporation, partnership, limited liability company,
proprietorship, trust, or other form of business entity related directly or
indirectly to any of the foregoing, and for each of their respective heirs,
administrators, executors, beneficiaries, legatees, devisees, trusts, trustees,
insurers, attorneys, experts, consultants, partners, joint venturers, members,
officers, directors, shareholders, employees, contractors, alter egos, agents,
representatives, predecessors, successors and assigns (collectively the "WIT
SOUNDVIEW RELEASORS"), does hereby release, acquit, and forever discharge
E*TRADE and any parent, subsidiary or affiliate corporation, partnership,
limited liability company, proprietorship, trust, or other form of business
entity related directly or indirectly to the foregoing, and each of their
respective heirs, administrators, executors, beneficiaries, legatees, devisees,
trusts, trustees, insurers, attorneys, experts, consultants, partners, joint
venturers, members, officers, directors, shareholders, employees, contractors,
alter egos, agents, representatives, predecessors, successors and assigns
(collectively the "E*TRADE RELEASEES") of and from any and all claims, actions,
causes of action, judgments, awards, costs, expenses, attorneys' fees, debts,
obligations, promises, representations, warranties, demands, acts, omissions,
rights and liabilities, of any kind and nature whatsoever, including but not
limited to those at law, in equity, in tort, in contract, whether or not
asserted to date, and whether known or unknown, suspected or unsuspected, which
have arisen, are arising, or may in the future arise, directly or indirectly,
from or in connection with the Strategic Alliance Agreement, or any other matter
or transaction of any kind or nature undertaken thereunder from the beginning of
time until the date hereof (the matters referred to above being hereinafter
referred to as the "E*TRADE RELEASED CLAIMS"); PROVIDED, HOWEVER, that nothing
in this Release shall release E*TRADE from any of its obligations under this
Termination Agreement.
15. GLOBAL RELEASE OF ALL CLAIMS AGAINST WIT SOUNDVIEW BY E*TRADE.
Effective as of the date hereof, E*TRADE, for itself, and for any parent,
subsidiary or affiliate corporation, partnership, limited liability company,
proprietorship, trust, or other form of business entity related directly or
indirectly to any of the foregoing, and for each of their respective heirs,
administrators, executors, beneficiaries, legatees, devisees, trusts, trustees,
insurers, attorneys, experts, consultants, partners, joint venturers, members,
officers, directors, shareholders, employees, contractors, alter egos, agents,
representatives, predecessors, successors and assigns (collectively the "E*TRADE
Releasors"), does hereby release, acquit, and forever discharge Wit SoundView,
and any parent, subsidiary or affiliate corporation, partnership, limited
liability company, proprietorship, trust, or other form of business entity
related directly or indirectly to any of the foregoing, and each of their
respective heirs, administrators, executors,
beneficiaries, legatees, devisees, trusts, trustees, insurers, attorneys,
experts, consultants, partners, joint venturers, members, officers, directors,
shareholders, employees, contractors, alter egos, agents, representatives,
predecessors, successors and assigns (collectively the "WIT SOUNDVIEW
RELEASEES") of and from any and all claims, actions, causes of action,
judgments, awards, costs, expenses, attorneys' fees, debts, obligations,
promises, representations, warranties, demands, acts, omissions, rights and
liabilities, of any kind and nature whatsoever, including but not limited to
those at law, in equity, in tort, in contract, whether or not asserted to date,
and whether known or unknown, suspected or unsuspected, which have arisen, are
arising, or may in the future arise, directly or indirectly, from or in
connection with the Strategic Alliance Agreement, or any other matter or
transaction of any kind or nature undertaken thereunder from the beginning of
time until the date hereof (the matters referred to above being hereinafter
referred to as the "WIT SOUNDVIEW RELEASED CLAIMS"); PROVIDED, HOWEVER, that
nothing in this Release shall release Wit SoundView from any of its obligations
under this Termination Agreement; and PROVIDED FURTHER that, notwithstanding any
provision to the contrary in this Section 15, nothing in this Termination
Agreement shall release Wit SoundView of its obligations to pay E*TRADE any
outstanding balance for selling concessions based on transactions conducted
pursuant to the Strategic Alliance Agreement.
16. COVENANT NOT TO XXX BY WIT SOUNDVIEW. Except for the enforcement of
this Termination Agreement or any rights preserved under this Termination
Agreement, the Wit SoundView Releasors hereby covenant that they will not, based
on any E*TRADE Released Claim, xxx or bring any claim or action against any
E*TRADE Releasee. This Covenant Not to Xxx shall be a complete defense to any
such claim or suit by any such Wit SoundView Releasor.
17. COVENANT NOT TO XXX BY E*TRADE . Except for the enforcement of this
Termination Agreement or any rights preserved under this Termination Agreement,
the E*TRADE Releasors hereby covenant that they will not, based on any Wit
SoundView Released Claim, xxx or bring any claim or action against any Wit
SoundView Releasee. This Covenant Not to Xxx shall be a complete defense to any
such claim or suit by any such E*TRADE Releasor.
18. GOVERNING LAW. This Termination Agreement shall be governed by the
laws of the State of New York as such laws are applied to agreements between New
York residents entered into and to be performed entirely within the State of New
York.
19. NO ADMISSION OF FAULT. This Termination Agreement is a compromise
settlement of disputed claims and may not be deemed or used as an admission of
liability or fault on the part of any Party hereto.
20. JOINT DRAFTING. This Termination Agreement shall be construed as
jointly drafted by the Parties, and the rule construing ambiguities against the
drafter shall not apply.
21. INTEGRATION CLAUSE. As of the date hereof, this Termination
Agreement and any further documents executed to implement the transactions
contemplated hereby, shall constitute the full and entire understanding and
agreement between the Parties with respect to the subject matter hereof and
shall supersede all prior conversations, negotiations, understandings and
agreements between the Parties with respect to the subject matter hereof.
22. FURTHER ASSURANCES. From time to time after the date hereof, the
Parties shall take such other actions and execute and deliver to any other Party
such further documents as may be reasonably requested by any other Party in
order to assure and confirm unto such Party (a) the rights created hereby or
intended now or hereafter so to be created by this Termination Agreement; or (b)
the validity of any assignment documents or other documents of conveyance to be
delivered at the execution of this Termination Agreement.
23. ARBITRATION. All disputes and controversies of every kind and
nature between the parties hereto arising out of or in connection with this
Termination Agreement as to the construction, validity, interpretation or
meaning, performance, non-performance, enforcement, operation or breach shall be
submitted to arbitration in accordance with the provisions of the NASD Code of
Arbitration Procedures.
24. EACH PARTY TO BEAR OWN COSTS AND ATTORNEYS' FEES. Each Party shall
bear its own costs, expenses, and attorneys' fees in connection with the
negotiation, preparation, execution and delivery of this Termination Agreement
and the transactions contemplated herein.
25. AMENDMENT ONLY IN WRITING. This Termination Agreement may be
modified only by a written agreement executed by the Parties affected by the
modification.
26. SEVERABILITY. The Parties hereto agree that if any provision of
this Termination Agreement is held by a court of competent jurisdiction to be
invalid, void, or unenforceable, such provision shall be valid and enforceable
to the maximum degree permitted and the remaining provisions shall nevertheless
continue in full force without being impaired or invalidated in any way.
27. SURVIVAL. The covenants, agreements, representations and warranties
contained in this Termination Agreement shall be continuing and shall survive
the execution and delivery of this Termination Agreement.
28. LEGAL PROCEEDINGS. Each Party represents, warrants, and agrees that
no legal proceeding or other action has been filed in any forum arising out of,
from, or in connection with any disputes or claims arising out of or related to
the Agreements.
29. NO ASSIGNMENT OF CLAIMS. Each Party represents and warrants to the
other that it has not hypothecated or otherwise encumbered or assigned any claim
or cause of action arising out of, related to or in connection with the claims
alleged in or referred to this Termination Agreement.
30. PUBLIC ANNOUNCEMENTS. The Parties will cooperate in developing a
public announcement of the matters described herein; each Party hereby agrees
not to release to the public any information relating to the matters described
herein without the prior approval of the other Party; PROVIDED, HOWEVER, that
nothing herein shall limit either Party's right to make such disclosure as it
reasonably believes is necessary to comply with disclosure obligations under
applicable law or listing agreements.
31. COUNTERPARTS. This Termination Agreement may be executed in
counterparts, each of which shall be deemed a duplicate original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on their behalf as of the date first written above.
SOUNDVIEW TECHNOLOGY GROUP,
INC.
------------------------------------
By:
Title:
E*TRADE GROUP, INC.
------------------------------------
By:
Title:
