EXHIBIT 10.15
ACCOUNT TRANSFER AGREEMENT
THIS ACCOUNT TRANSFER AGREEMENT is made as of May 15, 2000 by and among
E*TRADE Group, Inc., a Delaware corporation ("E*TRADE"), E*TRADE Securities,
Inc., a Delaware corporation ("Transferee"), Wit Capital Group, Inc., a Delaware
corporation ("Parent"), and Wit Capital Corporation, a Delaware corporation
("Transferor").
WHEREAS, Transferor is engaged in the business of providing, among other
things, brokerage services to individuals;
WHEREAS, Parent intends to acquire E*OFFERING Corp., a California
corporation ("Company"), by merging Company with and into Wit SoundView
Corporation ("WSC") pursuant to the Agreement of Merger and Plan of
Reorganization (the "Merger Agreement"), dated as of May 15, 2000, among Parent,
WSC and Company (the "Merger"), as a result of which Company will become a
subsidiary of Parent;
WHEREAS, the parties hereto and the Company are entering into a Strategic
Alliance Agreement (the "Strategic Alliance Agreement"), pursuant to which the
Transferee will distribute securities offered through the Transferor;
WHEREAS, in connection with the foregoing, Transferee desires to acquire
and assume from Transferor, and Transferor desires to transfer and assign to
Transferee, all right, title and interest in and to substantially all retail
brokerage accounts maintained by Transferor as of the Closing and carried on the
books of U.S. Clearing, a division of Fleet Securities, Inc. ("U.S. Clearing"),
and all related properties and rights in and to such retail brokerage accounts
(the "Accounts"), upon the terms and conditions of this Agreement; and
WHEREAS, in addition to the transfer of assets contemplated by this
Agreement, upon the terms and conditions of this Agreement, Transferor will
transfer or cause to be transferred to the custody of Transferee all fully-paid
securities of the retail customers held by Transferor, or its clearing firm, who
have not objected to the transfer or otherwise requested alternative treatment,
and Transferee will take possession of the securities in accordance with
applicable regulatory requirements;
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein and the Strategic Alliance Agreement, the parties hereby agree as
follows:
ARTICLE I
TRANSFER OF ACCOUNTS
SECTION 1.1 ACQUIRED ASSETS.
(a) Upon the terms and subject to the conditions set forth in this
Agreement, at the Closing (as defined below), Transferor hereby agrees (and
Parent shall cause Transferor) to convey, transfer, assign and deliver (or cause
to be conveyed, transferred, assigned and delivered) to Transferee, and
Transferee hereby agrees (and E*TRADE shall cause Transferee) to acquire from
Transferor, all right, title, and interest of Transferor in and to the Accounts
and all properties and rights of every kind, nature, and description, tangible
or intangible, known or unknown, wherever located and by whomever owned, of
Transferor relating to the Accounts, including, without limitation, the
following:
(i) All rights and interests under all written and oral contracts,
agreements, customer authorizations, purchase and sale orders and contracts
related to the Accounts, and other arrangements and commitments of Transferor
related to the Accounts (the "Contracts"), including, without limitation, those
set forth on SCHEDULE A hereto, but excluding those set forth in Schedule B
hereto;
(ii) All accounts receivable of Transferor relating to the Accounts
arising on or after the Closing;
(iii) All causes of action, judgments, and claims or demands of
whatever kind or description of Transferor arising out of or relating to the
Accounts, whether or not asserted, arising on or after the Closing;
(iv) Copies of customer lists and accounts, books, records, files,
databases, data and similar items related to any of the foregoing or the
Accounts (it being understood and agreed that the originals of the same shall be
maintained and used by Transferor solely for regulatory compliance purposes or
pursuant to defense or prosecution of legal actions); and
(v) All goodwill and similar intangible assets associated with any
of the foregoing.
The assets, properties, and rights to be conveyed, transferred, assigned
and delivered pursuant to this Section 1.1 are sometimes hereinafter
collectively referred to as the "Acquired Assets."
(b) Upon the terms and subject to the conditions set forth in this
Agreement, at the Closing, Transferee hereby agrees (and E*TRADE shall cause
Transferee) to assume from Transferor all of Transferor's obligations with
respect to the Contracts arising on and after the Closing. The foregoing
liabilities are sometimes hereinafter collectively referred to as the "Attached
Liabilities."
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SECTION 1.2 EXCLUDED LIABILITIES. Notwithstanding anything in this
Agreement to the contrary, Transferor shall (and Parent shall cause Transferor
to) remain responsible for any and all liabilities and obligations, whether
absolute, fixed, contingent or otherwise or direct or indirect, related to or
arising in connection with the Acquired Assets arising out of any event or
condition occurring or existing prior to the Closing, including but not limited
to:
(a) any liability or obligation of the Transferor arising out of
(A) any suit, action, proceeding, arbitration, mediation, complaint, inquiry or
investigation, pending or threatened as of, or arising out of any event or
condition occurring or existing prior to, the Closing or (B) any actual or
alleged breach of applicable law prior to the Closing;
(b) any liability or obligation under any agreement between
Transferor or any of its affiliates, on the one hand, and U.S. Clearing, or any
of their affiliates, on the other hand, including without limitation the
clearing agreement dated [January 7], 1999 (the "U.S. Clearing Agreement")
between Transferor and U.S. Clearing (in particular, any amounts due under
Sections 4 and 10 thereunder, which Transferor and Parent hereby agree to remain
liable for);
(c) any liability or obligation related to an Acquired Asset
incurred in connection with obtaining any applicable required consent for the
transfer of any Accounts hereunder; and
(d) any liability or obligation related to an Acquired Asset
incurred by Transferor in connection with the transfer of such Acquired Asset
under this Agreement.
Transferee shall not assume any liabilities as a result of this
Agreement.
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ARTICLE II
CLOSING
SECTION 2.1 CLOSING. The transactions contemplated by this Agreement shall
be consummated (the "Closing") as soon as practicable after the satisfaction or,
if permissible, waiver of the conditions set forth in Article V or at such other
time as the parties hereto may agree (the "Closing Date"). The Closing shall
take place at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000
Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxx, Xxxxxxxxxx, or at such other time and
location as the parties hereto may agree.
SECTION 2.2 CLOSING DELIVERIES. Subject to the terms and conditions of this
Agreement, at the Closing, (a) Transferor shall deliver (or cause to be
delivered) to Transferee such bills, deeds, endorsements, assignments and other
good and sufficient instruments of transfer, conveyance and assignment as shall
be necessary to transfer, convey and assign to Transferee title to the Acquired
Assets, free and clear of all Liens (as defined below) other than Permitted
Liens (as defined below), together with all other agreements, instruments,
consents and documents contemplated hereunder to be delivered by Transferor at
the Closing, and (b) Transferee shall deliver or cause to be delivered to
Transferor any agreements, instruments of assumption and other instruments, and
documents contemplated hereunder to be delivered by Transferee at the Closing.
SECTION 2.3 FURTHER ASSURANCES. From time to time, as and when requested by
either party hereto, the other party shall execute and deliver, or cause to be
executed and delivered, all such documents and instruments and shall take, or
cause to be taken, all such further or other actions, as the requesting party
may reasonably deem necessary or desirable to consummate the transactions
contemplated by this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF PARENT. Except to the extent
disclosed in the document of even date herewith delivered by Parent to E*TRADE
and Transferee prior to the execution and delivery of this Agreement (the
"Parent Disclosure Schedule"), Transferor represents and warrants to Transferee
as follows:
(a) ORGANIZATION. Each of Parent and Transferor is a corporation
duly organized and validly existing under the laws of the State of Delaware, and
has the corporate power and authority to enter into this Agreement and the other
agreements and instruments contemplated hereby to which it is a party (the
"Ancillary Agreements"), to perform its obligations hereunder and thereunder and
to consummate the transactions contemplated hereby and thereby. Transferor does
not own, directly or indirectly, any capital stock or other equity securities of
any corporation or have any direct or indirect equity or ownership interest in
any other corporation. Neither WSC nor any other subsidiary of Parent other than
Transferor engages in the online retail brokerage business and maintains any
retail brokerage accounts.
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(b) AUTHORIZATION OF TRANSFEROR. The execution and delivery of this
Agreement and the Ancillary Agreements to which it is a party and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action on the part of Parent and
Transferor. This Agreement has, and each Ancillary Agreement will have been, at
or prior to the Closing, duly executed and delivered by Parent and Transferor
and constitutes, or will thereafter constitute, the valid and binding obligation
of Parent and/or Transferor, as the case may be, enforceable against it in
accordance with its terms, except as enforcement may be limited by (i) the
effect of bankruptcy, insolvency, reorganization, receivership, conservatorship,
arrangement, moratorium or other similar laws affecting the rights of creditors
generally, or (ii) the availability of specific performance, injunctive relief
or other equitable remedies and general principles of equity, regardless of
whether considered in a proceeding in equity or at law.
(c) NO CONFLICT. Other than the U.S. Clearing Agreement, the execution and
delivery of this Agreement or any Ancillary Agreement by Transferor does not,
and the performance of Parent and/or Transferor's obligations hereunder or
thereunder and the consummation of the transactions contemplated hereby or
thereby will not, conflict with, or result in any violation of, or default under
(with or without notice or lapse of time, or both), or give rise to a right of
termination, cancellation or acceleration of any obligation or loss of any
benefit, or result in any other consequence, under (i) any provision of the
certificate or articles of incorporation, bylaws, partnership or limited
liability company operating agreement, or other charter or organizational
documents, each as amended, of Parent or Transferor or (ii) any mortgage,
indenture, lease, contract or other agreement or instrument, permit, concession,
franchise, license, judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to Parent or Transferor or any of their respective
properties or assets, except, in the case of clause (ii), for any conflicts,
violations, defaults, rights, terminations, cancellations or accelerations,
losses or other consequences that would not (A) individually or in the aggregate
have a material adverse effect on the Acquired Assets or the Attached
Liabilities or (B) prevent or materially impair or delay the consummation of the
transactions contemplated hereby.
(d) CONSENTS AND APPROVALS. No consent, approval, order or authorization
of, or registration, declaration or filing with, any government, or any
commission, authority, board, agency, division or any court or tribunal, of the
government of the United States or of any state, territory, city, county or town
thereof, or of any foreign jurisdiction, or of any self-regulatory organization
("Governmental Entity") is required by Parent or Transferor in connection with
the execution and delivery by it of this Agreement or any Ancillary Agreement,
the performance of Transferor's obligations hereunder or thereunder or the
consummation by it of the transactions contemplated hereby or thereby, except
for (i) such consents, approvals, orders, authorizations, registrations,
declarations and filings as may be required by the National Association of
Securities Dealers, Inc. ("NASD") or under any applicable federal or state
securities laws or the laws of any foreign country, and (ii) such other
consents, authorizations, filings, approvals and registrations that, if not
obtained or made, would not have a material adverse effect on the Acquired
Assets or the Attached Liabilities and would not prevent or materially alter or
delay any of the transactions contemplated by this Agreement.
(e) BOOKS AND RECORDS. The books and records of Transferor, including
documents and information reflecting information about the Accounts and account
holders, to
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which Transferee and its accountants and attorneys have been given
access are the true books and records of Transferor and fairly reflect the
underlying facts and transactions set forth therein in all material respects.
(f) LIENS AND LIABILITIES. No mortgage, lien, pledge, security interest,
hypothecation, claim, charge, title defect or other encumbrance (each, a "Lien")
has been imposed or agreed to be imposed on or with respect to the Acquired
Assets other than (i) liens related to all promissory notes and other evidence
of indebtedness in respect of margin loans and other indebtedness arising out
of, in connection with or otherwise related to the Accounts ("Margin Loans")
(including liens related to the rehypothecation of securities pledged to secure
Margin Loans), (ii) the lien of current taxes not yet due and payable and (iii)
such imperfections of title, liens and easements as do not and are not
reasonably expected to materially detract from or interfere with the use of the
properties subject thereto or affected thereby or otherwise materially impair
business operations involving such Acquired Assets (items (i), (ii) and (iii),
collectively, "Permitted Liens").
(g) ACCOUNTS. Schedule C contains a list, as of a date not more than five
(5) business days prior hereto, of all retail brokerage accounts introduced by
Transferor to U.S. Clearing. All information in Schedule C accurately reflects
the books and records of Transferor relating to such retail brokerage accounts
and the related customers. Schedule C is to be prepared and delivered on a
compact disk file format designated by Transferor and acceptable to Transferee.
(h) CONTRACTS AND COMMITMENTS.
(i) SCHEDULE A contains a complete and accurate list of all Contracts
(with respect to Contracts used by Transferor with its retail brokerage
customers, Schedule A contains a list of representative forms of such
Contracts), other than purchase and sale orders and similar routine
agreements relating to the accounts. Section 3.1(h) of the Transferor
Disclosure Schedule contains a complete and accurate list of all Contracts
listed on Schedule A that, without the consent, assent, approval, novation
or other action on the part of the counterparty, will not be effectively
transferred to or assumed by Transferee in the transaction contemplated
hereby and sets forth the nature of the consent, assent, approval, novation
or other action that must be obtained to effectively transfer each such
Contract.
(ii) Transferor has performed all of its obligations under the terms
of each Contract, and is not in default in any respect of any Contract,
except where the failure to perform such obligations, and except for any
such default that, could not reasonably be expected to have a material
adverse effect on the Acquired Assets. Each of the Contracts is in full
force and effect, and there exists no default or event of default or event,
occurrence, condition or act, with respect to Transferor or any of its
subsidiaries or, to Transferor's knowledge, with respect to the other
contracting party, which, with the giving of notice, the lapse of the time
or the happening of any other event or conditions, would become a default
or event of default under any Contract, except for any such default, such
event of default or failure to be in full force and effect that could not
reasonably be expected to have a material adverse effect on the Acquired
Assets. Transferor has made available to Transferee true and complete
copies of all Contracts.
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(i) MARGIN LOANS. SCHEDULE C contains a complete and accurate list of
all margin accounts maintained by customers of Transferor. The Margin loans
in the margin Accounts will represent bona fide claims against debtors for
the principal and interest amounts due in respect thereof, and will not be
subject to any defense, claim, right of set-off or other right, known by
Transferor, that would impede collection of such debts other than those of
which Transferee is advised in writing at or prior to the Closing. For
purposes of this Section 3.1(i), Transferor shall be deemed to have
knowledge of all facts and circumstances known to U.S. Clearing with
respect to the Margin Loans.
(j) REGULATORY/LITIGATION MATTERS. There are no claims, actions,
suits, proceedings, arbitrations, mediations, customer complaints, disputes
or, to the knowledge of Parent and Transferor, investigations or inquiries
pending or threatened, before any Governmental Entity brought by or against
Transferor with respect to the Acquired Assets, including claims that would
affect title to or transfer of the Acquired Assets or that question the
validity of this Agreement or the right of the Transferor to enter into
this Agreement.
SECTION 3.2 REPRESENTATIONS AND WARRANTIES OF E*TRADE. Except as disclosed
in the document of even date herewith delivered by E*TRADE to Transferor prior
to the execution and delivery of this Agreement (the "Transferee Disclosure
Schedule"), E*TRADE represents and warrants to Transferor as follows:
(a) ORGANIZATION. Each of E*TRADE and Transferee is a corporation duly
organized and validly existing under the laws of the State of Delaware, and
has the corporate power and authority to enter into this Agreement and each
Ancillary Agreement to which it is a party, to perform its obligations
hereunder and thereunder and to consummate the transactions contemplated
hereby and thereby.
(b) AUTHORIZATION OF TRANSFEREE. The execution and delivery of this
Agreement and the Ancillary Agreements to which it is a party and the
consummation of the transactions contemplated hereby and thereby have been
duly authorized by all necessary corporate action on the part of E*TRADE
and Transferee. This Agreement has, and each Ancillary Agreement will have
been, at or prior to the Closing, duly executed and delivered by E*TRADE
and Transferee, and constitutes, or will thereafter constitute, the valid
and binding obligation of E*TRADE and/or Transferee, as the case may be,
enforceable against it in accordance with its terms, except as enforcement
may be limited by (i) the effect of bankruptcy, insolvency, reorganization,
receivership, conservatorship, arrangement, moratorium or other laws
affecting the rights of creditors generally, or (ii) the availability of
specific performance, injunctive relief or other equitable remedies and
general principles of equity, regardless of whether considered in a
proceeding in equity or at law.
(c) NO CONFLICT. The execution and delivery of this Agreement or any
Ancillary Agreement by Transferee do not, and the performance E*TRADE
and/or Transferee of the obligations hereunder or thereunder and the
consummation of the transactions contemplated hereby or thereby will not,
conflict with, or result in any violation of, or default under (with or
without notice or lapse of time, or both), or give rise to a right of
termination, cancellation or acceleration of any obligation or loss of a
benefit, or result in any other consequence, under (i) any provision of the
certificate or articles of incorporation, bylaws, partnership or limited
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liability company operating agreement, or other charter or organizational
documents, each as amended, of Transferee, or (ii) any mortgage, indenture,
lease, contract or other agreement or instrument, permit, concession,
franchise, license, judgment, order, decree, statute, law, ordinance, rule
or regulation applicable to Transferee or any of their respective
properties or assets, except, in the case of clause (ii), for any
conflicts, violations, defaults, rights, terminations, cancellations or
accelerations, losses or other consequences that would not individually or
in the aggregate prevent or materially impair or delay the consummation of
the transactions contemplated hereby.
(d) CONSENTS AND APPROVALS. No consent, approval, order or
authorization of, or registration, declaration or filing with, any
Governmental Entity is required by E*TRADE or Transferee in connection with
the execution and delivery of this Agreement or any Ancillary Agreement by
it, the performance of Transferee's obligations hereunder or thereunder or
the consummation by it of the transactions contemplated hereby or thereby,
except for (i) such consents, approvals, orders, authorizations,
registrations, declarations and filings as may be required under applicable
federal or state securities laws or the securities laws of any foreign
country, including those necessary for Transferee to fulfill its
obligations under Article II, and (ii) such other consents, authorizations,
filings, approvals and registrations that, if not obtained or made, would
not prevent or materially alter or delay any of the transactions
contemplated by this Agreement or the Ancillary Agreements.
(e) REGULATORY MATTERS. There are no claims, actions, suits,
proceedings, arbitrations, mediations, customer complaints, disputes or, to
the knowledge of E*TRADE and Transferee, investigations or inquiries
pending or threatened before any Governmental Entity brought by or against
Transferee that would prevent Transferee from acquiring the Acquired
Assets.
ARTICLE IV
SECTION 4.1 ACCESS TO INFORMATION.
(a) Transferor shall afford Transferee and its accountants, counsel
and other representatives, reasonable access during normal business hours
during the period prior to the Closing, subject to appropriate
confidentiality arrangements, to (i) all of Transferor's properties, books,
contracts, commitments and records related to the Acquired Assets, and (ii)
all other information concerning the assets, properties and personnel of
Transferor as Transferee may reasonably request.
(b) No information or knowledge obtained in any investigation
pursuant to this Section 4.1 shall affect or be deemed to modify any
representation or warranty contained herein or the conditions to the obligations
of the parties to consummate the transactions contemplated hereby.
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(c) Each party shall promptly notify the other of any inaccuracy in
any representation or warranty of Parent or E*TRADE herein, as the case may
be, that the other party becomes aware of.
SECTION 4.2 CONFIDENTIALITY. The parties acknowledge that Transferee
and Transferor have previously executed a nondisclosure agreement dated
April __, 2000 (the "Confidentiality Agreement"), which Confidentiality
Agreement shall continue in full force and effect in accordance with its
terms.
SECTION 4.3 PUBLIC DISCLOSURE. Unless otherwise permitted by this
Agreement, Transferee and Transferor shall consult with each other before
issuing any press release or otherwise making any public statement or
making any other public (or non-confidential) disclosure (whether or not in
response to an inquiry) regarding the terms of this Agreement and the
transactions contemplated hereby, and neither shall issue any such press
release or make any such statement or disclosure without the prior approval
of the other (which approval shall not be unreasonably withheld), except as
may be required by law or by obligations pursuant to any listing agreement
with any national securities exchange or with the NASD after consultation
with Transferor.
SECTION 4.4 CONSENTS; COOPERATION.
(a) As soon as practicable, but no later than ten (10) business days after
the date hereof and at least twenty (20) days prior to the Closing Date,
Transferor shall mail by registered or certified mail (return receipt requested)
to the named holder of each Account a letter substantially in the form attached
hereto as EXHIBIT A with such additional marketing-related changes as the
parties may mutually agree upon (the "Notification Letter") describing the
proposed Account transfer from Transferor to Transferee and seeking its consent
to such transfer. The Notification Letters shall be prepared and mailed to the
named holder of each Account at Transferor's sole expense, and Transferor shall
use its reasonable best efforts to obtain the consent to the transfer of all
Accounts. Transferor shall maintain a list of the names of each account holder
receiving the Notification Letter, with indications as to the date the Option
Letter was sent and copies of the responses received, if any, including the date
of receipt of a response. Transferor shall transfer at the time of Closing all
Accounts Agreements and Account information of account holders who have not
objected to such transfer or requested otherwise. Transferor shall provide
Transferee at or prior to the Closing copies of all written objections or
directions from each account holder who decides not to transfer its Account to
Transferee.
(b) Each of Transferee and Transferor will, and will cause their respective
subsidiaries, and affiliated or unaffiliated third parties who perform
clearance, settlement and custodial services for the Transferee and Transferor,
including Transferor's clearing agent, U.S. Clearing, to take all reasonable
actions necessary to comply promptly with all legal and contractual requirements
which may be imposed on them with respect to the consummation of the
transactions contemplated by this Agreement and will promptly cooperate with and
furnish information to any party hereto necessary in connection with any such
requirements imposed upon such other party in connection with the consummation
of the transactions contemplated by this Agreement or any Ancillary Agreement
and will take all reasonable actions necessary to obtain (and will cooperate
with the other parties hereto in obtaining) any consent, approval, order
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or authorization of, or any registration, declaration of filing with, any
Governmental Entity or other person, required to be obtained or made in
connection with the taking of any action contemplated by this Agreement or any
Ancillary Agreement (including without limitation, any consents to assignment or
novation of Contracts). Transferee and Transferor shall have the right to review
in advance, and to the extent practicable each will consult the other as to, in
each case subject to applicable laws relating to the exchange of information,
all of the information which will appear in any filing made with, or written
materials submitted to, any third party or Governmental Entity in connection
with the transactions contemplated by this Agreement. In the event an injunction
or other order shall have been issued which prevents, alters or delays the
Closing or any other transaction contemplated hereby, each party agrees to use
its reasonable best efforts to have such injunction or other order lifted.
(c) Transferee and Transferor and their respective subsidiaries
shall cooperate and use their respective reasonable best efforts to prepare all
documentation, to effect all filings and to obtain all permits, consents,
approvals and authorizations of all third parties and Governmental Entities
necessary to consummate the transactions contemplated by this Agreement or
any Ancillary Agreement, and to consult with the other party with respect
to obtaining such permits, consents, approvals and authorizations. Each of
Transferee and Transferor agrees, upon request, to furnish the other party
with all information concerning itself, its subsidiaries, directors,
officers and shareholders and such other matters as may be reasonably
necessary or advisable in connection with any filing, notice or application
made by or on behalf of such other party or any of its subsidiaries to any
third party or Governmental Entity.
(d) As soon as practicable, but no later than ten (10) business days
after the date hereof, Transferee shall file with the Securities and
Exchange Commission ("SEC") a letter substantially in the form attached
hereto at EXHIBIT B (the "Omnibus Account Letter") describing the proposed
transfer and applying pursuant to SEC Rule 15c3-3(c)(7) for the allowance
of an omnibus account established by Transferee with U.S. Clearing to be
designated as a control location adequate for the protection of customer
securities for the purposes of SEC Rule 15c3-3. Transferor shall cooperate,
and shall use its reasonable best efforts to cause U.S. Clearing, to assist
in the process of transferring the Acquired Assets.
(e) The Parties recognize that the transfer of Accounts to
Transferee as contemplated hereby cannot be effected without the express or
implied consent of the account holder. To the extent that any required consent
with respect to an Acquired Asset has not been obtained on or prior to the
Closing Date, such Acquired Asset shall not be transferred as an Acquired
Asset hereunder, and any related liability that would, but for the absence
of such required consent, constitute an Attached Liability shall not be
assumed by Transferee as an Attached Liability hereunder, unless and until
such required consent has been obtained.
(f) At Closing, Transferor shall deliver to Transferee a stock
record ("Stock Record") showing the total number of shares of each account
holder held in the Accounts and the number of shares of each account holder held
in each Account related to such account holder (exclusive of any securities
owned by a customer who objected to the transfer) which Stock Record to its
knowledge will be correct as of the Closing. Transferor also shall deliver
or cause to be delivered to Transferee for safekeeping the fully paid
securities set forth on the Stock Record. Transferor represents and
warrants that (i) to its knowledge its clearing firm will be in
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compliance with Exchange Act Rule 15(c)3-3 as of the Closing and (ii) that, to
its knowledge, if Transferee relies on the Stock Record for purposes of
compliance with Exchange Act Rule 17a-3(a)(5) and otherwise complies with all
the other provisions of said Rule, it will be in compliance with Rule
17a-3(a)(5) as of the Closing. In the event a question arises after the Closing
as to the accuracy of any of the amounts of securities set forth on the Stock
Record, the parties agree to work together to resolve such question. In the
event that the parties cannot resolve any question which involves an allegedly
short position within 48 hours of discovery, Transferor will deliver, or cause
to be delivered to Transferee within four (4) business days sufficient
securities to cover any such short position.
(g) After the date of this Agreement and through the Closing,
Transferor shall deliver to Transferee on each Wednesday a transition
report relating to the conversion of Accounts from Transferor to
Transferee, the contents of which shall be reasonably agreed on by the
parties.
(h) Transferor shall execute all transactions in Accounts up to and
including the Closing date. Thereafter, all orders for transferred Accounts
shall be executed by Transferee. Transferor shall have no claim to
commissions on outstanding limit orders or trades for transferred Accounts
executed after the Closing Date.
(i) With respect to margin Accounts, upon the transfer of the
Accounts, the Transferee shall pay to U.S. Clearing an amount equal to the
then aggregate balance of any Margin Loans in the margin Accounts and shall
establish an equivalent margin loan in the margin accounts it has
established for its customers. Transferee reserves the right to reject any
margin Account if any related Margin Loan is under margined or otherwise
under collateralized pursuant to applicable provisions of Federal Reserve
Board Regulation T, NASD rules or margin lending policies and procedures of
Transferee then in effect and applied generally to its accounts.
(j) Within forty five (45) days after the execution of this Agreement,
Transferor will provide to Transferee an updated Schedule C, containing
such fields of information with respect to Transferor's retail brokerage
accounts as Transferee shall reasonably request, including, if requested,
cross-references to Contracts described on Schedule A that are for each
Account. At Closing, Transferor shall deliver to Transferee an updated
Schedule C containing such fields of information with respect to the
Accounts as Transferee shall reasonably request, including, if requested,
cross-references to the Contracts described in Schedule A that are
applicable to each Account.
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SECTION 4.5 FURTHER ASSURANCES. Each of the parties to this Agreement
shall use its reasonable best efforts to effect the transactions
contemplated hereby and to fulfill and cause to be fulfilled the conditions
to closing under this Agreement.
SECTION 4.6 EXPENSES. Whether or not the transactions contemplated
hereby are consummated, all costs and expenses incurred in connection with
this Agreement, the Ancillary Agreements and the transactions contemplated
hereby and thereby shall be paid by the party incurring such expense.
SECTION 4.7 RECORDS. At the Closing, Transferor shall deliver or
cause to be delivered to Transferee copies, in computer readable format, of all
original agreements, document, books, records and files in the possession
of Transferor or any of its subsidiaries relating to or necessary to
utilize the Acquired Assets. Transferor will maintain the originals of all
such agreements, documents, books, records and filed for the time periods
required by applicable law and then deliver such originals to Tranferee.
ARTICLE V
CONDITIONS TO CLOSING
SECTION 5.1 CONDITIONS TO OBLIGATION TO EACH PARTY The respective
obligations of each party to this Agreement to consummate and effect this
Agreement and the transactions contemplated hereby shall be subject to the
satisfaction at or prior to the Closing of each of the following
conditions, any of which may be waived, in writing, by agreement of all the
parties hereto:
(a) NO INJUNCTIONS OR RESTRAINTS; ILLEGALITY. No temporary
restraining order, preliminary or permanent injunction or other order
issued by any court of competent jurisdiction or other legal regulatory
restraint or prohibition preventing the consummation of the Closing shall be in
effect, nor shall any preceding brought by an administrative agency or
commission or other governmental authority or instrumentality, domestic or
foreign, seeking any of the foregoing be pending; nor shall there be any action
taken, or any statute, rule, regulation or order enacted, entered, enforced or
deemed applicable to the transactions contemplated hereby, which makes the
consummation of the transactions contemplated hereby illegal. In the event an
injunction or other order shall have been issued, each party agrees to
use its reasonable efforts to have such injunction or other order
lifted.
(b) GOVERNMENTAL APPROVAL. Transferee, Transferor and their
respective subsidiaries shall have timely obtained from each Governmental Entity
all approvals, waivers and consents, if any, necessary for consummation of or in
connection with the transactions contemplated hereby, including the NASD
Approval, any state securities regulatory approvals (the failure of which to
obtain would have a material adverse effect on the Acquired Assets) and such
approvals, waivers and consents as may be required under the Securities Act and
state Blue Sky laws (the failure of which to obtain would have a material
adverse effect on the Acquired Assets); PROVIDED, HOWEVER, that none of the
preceding shall be deemed obtained or made for purposes of satisfying the
foregoing condition to Transferee's obligation to effect the transactions
contemplated hereby if it shall impose a non-customary condition or restriction
that
12
Transferee reasonably determines in good faith could reasonably be expected
to have a material adverse effect on Acquired Assets.
(c) MERGER, STRATEGIC ALLIANCE AND STOCK PURCHASE. The Merger
Agreement, Alliance Agreement, and Stock Purchase Agreement (each in the form
executed as of the date hereof or with such modifications or amendments as the
E*TRADE shall have approved in writing) shall be in full force and effect, and
the Merger and the closing of the stock purchase contemplated by the Merger
Agreement and the Stock Purchase Agreement, respectively, shall have been
consummated in accordance with the terms thereof (without any waiver by the
Company of any of the Closing conditions or its rights thereunder).
SECTION 5.2 ADDITIONAL CONDITIONS TO OBLIGATIONS OF TRANSFEROR.
The obligations of Transferor to consummate and effect the transactions
contemplated hereby shall be subject to the satisfaction at or prior to the
Closing of each of the following conditions, any of which may be waived,
in writing by Transferor.
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS. (i) The
representations and warranties of Transferee in this Agreement shall be true and
correct in all material respects (except for such representations and warranties
that are qualified by their terms by a reference to material adverse effect or
materiality, which representations and warranties as so qualified shall be true
and correct in all respects) on and as of the Closing (other than
representations and warranties expressly made as of an earlier date, which shall
have been so true and correct as of such earlier date) and (ii) Transferee shall
have performed and complied in all material respects with all covenants,
obligations and conditions of this Agreement and the Ancillary Agreements
required to be performed and complied with by it as of or prior to the Closing.
(b) CERTIFICATE OF TRANSFEREE. Transferor shall have been
provided with a certificate executed on behalf of the Transferee by its
President or an Executive or Senior Vice President to the effect that the
condition set forth in Section 5.2(a) has been satisfied.
SECTION 5.3 ADDITIONAL CONDITIONS TO THE OBLIGATIONS OF TRANSFEREE. The
obligations of Transferee to consummate and effect the transactions completed
hereby shall be subject to the satisfaction at or prior to the Closing of each
of the following conditions, any of which may be waived, in writing, by
Transferee:
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS. (i) The
representations and warranties of Transferor in this Agreement shall be true and
correct in all material respects (except for such representations and warranties
that are qualified by their terms by a reference to material adverse effect or
materiality, which representations and warranties as so qualified shall be true
and correct in all respects) on and as of the Closing as though such
representations and warranties were made on and of the Closing (other than
representations and warranties expressly made as of an earlier date, which shall
have been so true and correct as of such earlier date) and (ii) Transferor shall
have performed and complied in all material respects with all covenants,
obligations, and conditions of this Agreement and the Ancillary Agreements to
which it is a party required to be performed and complied with by it as of or
prior to the Closing.
13
(b) CERTIFICATE OF TRANSFEROR. Transferee shall have been
provided with a certificate executed on behalf of Transferor by its President
or a Senior Vice President to the effect that the condition set forth in Section
5.3(a) has been satisfied.
(c) INSTRUMENTS OF TRANSFER. Transferor shall (and Parent shall
cause Transferor to) have duly executed and delivered to Transferee a
xxxx of sale, assignment and such other instruments of transfer in form and
substance reasonably satisfactory to E*TRADE, effecting the transfer of the
Acquired Assets hereunder.
ARTICLE VI
GENERAL PROVISIONS
SECTION 6.1 TERMINATION. This Agreement may be terminated at any
time prior to Closing by mutual written consent of Transferee and
Transferor. In the event of termination of this Agreement as provided in this
Section 6.1, this Agreement shall forthwith become void and there shall be no
liability or obligation on the part of either party or their respective
officers, directors, stockholder or affiliates and/or except to the extent that
such termination results from the breach by a party hereto of any of its
representation, warranties or covenants set forth in this Agreement involving
fraud or willful misconduct; provided that the provisions of Section 4.2
(Confidentiality) and this Section 6.1 shall remain in full force and effect and
survive any termination of this Agreement.
SECTION 6.2 INDEMNIFICATION. Subject to the limitations set forth
in this Section 6.2, Transferor and Transferee will indemnify and hold harmless
the other and its subsidiaries and their officers, directors, agents and
employees, and each person, if any, who controls or may control Transferor or
Transferee, as the case may be, within the meaning of the Securities Act
(hereinafter referred to individually as an "Indemnified Person" and
collectively as "Indemnified Persons") from and against any and all losses,
costs, damages, liabilities and expenses arising from claims, demands, actions,
causes of action, including without limitation reasonable legal fees
(collectively "Damages"), arising out of or resulting from any breach of or
default in any of the representations, warranties, covenants and agreements
given or made by the other in or pursuant to this Agreement, any Ancillary
Agreement, the Transferor Disclosure Schedule or any exhibit or schedule to this
Agreement and any certificates delivered pursuant to Article V hereof.
Transferor will indemnify and hold harmless Transferee and any Transferee
Indemnified Person from and against any and all Damages arising out of, or
resulting from, any liability relating to the Acquired Assets prior to the
Closing.
SECTION 6.3 NOTICES. All notices and other communication hereunder
shall be in writing and shall be deemed given if delivered personally or by
commercial delivery service, or mailed by registered or certified mail
(return receipt requested) or by reputable overnight courier or sent via
facsimile (with confirmation of receipt and followed by one of the other
methods described in this Section) to the parties at the following address
(or at such other address for a party as shall be specified by like notice):
(a) if to E*TRADE or Transferee, to:
E*TRADE Group, Inc.
14
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxx X. Bevilacqu
Telephone No.: (000) 000-0000
with a copy to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
0000 Xxxx Xxxx
Xxx Xxxxxxxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxx X. Mo, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
(b) if to Parent or Transferor, to:
Wit Capital Group, Inc.
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Four Times Square, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
SECTION 6.4 ENTIRE AGREEMENT. This Agreement, the exhibits and
schedules hereto, and the documents referred to herein embody the
entire agreement and understanding of the parties hereto with respect
to the subject matter hereof, and supersede all prior and
contemporaneous agreements and understandings, oral or written,
relative to said subject matter.
SECTION 6.5 BINDING EFFECT; ASSIGNMENT. This Agreement and the
various rights and obligations arising hereunder shall inure to the benefit of
and be binding upon Transferor, its successors and permitted assigns, and
Transferee and its successors and permitted assigns. Neither this Agreement nor
any of the rights, interests, or obligations hereunder shall be transferred or
assigned (by operation of law or otherwise) by any of the parties hereto without
the
15
prior written consent of the other party; provided that Transferee may
assign its rights hereunder to acquire the Acquired Assets to one or more
subsidiaries thereof.
SECTION 6.6 TRANSFER; TAXES. Transferor shall pay all applicable sales,
use, transfer, documentary and other similar taxes arising out of the transfer
of the Acquired Assets.
SECTION 6.7 WAIVER; CONSENT. This Agreement may not be changed, amended,
terminated, augmented, rescinded, or discharged (other than by performance),
in whole or in part, except by a writing executed by the parties hereto, and
no waiver of any of the provisions or conditions of this Agreement or any of
the rights of a party hereto shall be effective or binding unless such waiver
shall be in writing and signed by the party claimed to have given or
consented thereto. Except to the extent that a party hereto may have
otherwise agreed in writing, no waiver by that party of any condition of this
Agreement or breach by the other party of any of its obligations or
representations hereunder or thereunder shall be deemed to be a waiver of any
other condition or subsequent or prior breach of the same or any other
obligation or representation by the other party, nor shall any forbearance by
the first party to seek a remedy for any noncompliance or breach by the other
party be deemed to be a waiver by the first party of its rights and remedies
with respect to such noncompliance or breach.
SECTION 6.8 THIRD-PARTY BENEFICIARIES. Except as otherwise expressly
provided for in this Agreement, nothing herein, expressed or implied, is
intended or shall be construed to confer upon or give to any person, firm,
corporation, or legal entity, other than the parties hereto, any rights,
remedies, or other benefits under or by reason of this Agreement.
SECTION 6.9 COUNTERPARTS. This Agreement may be executed simultaneously
in multiple counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument.
SECTION 6.10 SEVERABILITY. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
SECTION 6.11 REMEDIES OF TRANSFEREE. Transferor acknowledges and agrees
that the Acquired Assets are unique and not otherwise readily available to
Transferee. Accordingly, Transferor acknowledges that, in addition to all other
remedies to which Transferee is entitled, Transferee shall have the right to
enforce the terms of this Agreement by a decree of specific performance.
SECTION 6.12 GOVERNING LAW. This Agreement shall in all respects be
construed in accordance with and governed by the laws of the State of New York
without regard to the conflicts or choice of law provisions thereof. Except to
the extent that a dispute is required to be arbitrated by the rules of the NASD,
each of the parties hereto irrevocably consents to the exclusive jurisdiction of
any court located within the State of New York or California, in connection with
any matter based upon or arising out of this Agreement or the matters
contemplated herein, agrees that process may be served upon them in any manner
authorized by the laws of the State of New York or California for such persons
and waives and covenants not
16
to assert or plead any objection that they might otherwise have to such
jurisdiction and such process.
SECTION 6.13 RULES OF CONSTRUCTION. The parties hereto agree that they have
been represented by counsel during the negotiation, preparation and execution of
this Agreement and, therefore, waive the application of any law, regulation,
holding or rule of construction providing that ambiguities in an agreement or
other document will be construed against the party drafting such agreement or
document.
SECTION 6.14 BULK TRANSFER. The Transferor and the Transferee hereby waive
compliance with the provisions of any so-called "bulk transfer law" of any
jurisdiction in connection with the transfer of the Acquired Assets to the
Transferee.
SECTION 6.15 DEFINITIONS. For purposes of this Agreement, "material adverse
effect," "knowledge" and "subsidiary" shall have the respective meanings set
forth in the Merger Agreement.
17
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed and delivered by its respective officer thereunto duly authorized,
all as of the date first above written.
E*TRADE Group, Inc.
By:
---------------------------------------------
Name:
Title:
Wit Capital Group, Inc.
By:
---------------------------------------------
Name:
Title:
[SIGNATURE PAGE TO ACCOUNT TRANSFER AGREEMENT]
EXHIBIT A
Notification Letter
[Wit Capital Corporation Letterhead](1)
[Customer Name]
[Address]
[_________, 2000]
Re: Transfer of Account [Account Number] [Name of Account Holder]
Dear M____________:
This letter is to inform you that Wit Capital Corporation ("Wit") has entered
into an agreement with E*TRADE, Inc. ("E*TRADE") whereby certain brokerage
customer accounts, including all related information, currently held by Wit will
be transferred to E*TRADE. After the transfer of the accounts to E*TRADE, Wit
will no longer maintain individual retail accounts. The parties anticipate that
the transfer of the accounts, including your account(s), will be effected on
[Date].
Accordingly, your brokerage account at Wit, your fully-paid securities, any
credit or debit balances in your account and any outstanding margin indebtedness
will be transferred to E*TRADE on [Date], unless you respond in writing to this
letter within fourteen (14) days from the date you receive this letter by
filling out the attached Transfer Initiation Form with alternative instructions
for the transfer of your account. If you wish to transfer your account to a
broker other than E*TRADE, you must complete this form with all the relevant
information, including the name and address of the broker-dealer to whom you
request that your account be transferred. You need not take any action if you
consent to the transfer of your account to E*TRADE. Upon transfer, your account,
including the terms and conditions governing any margin loans you may have, will
be governed by the terms and conditions of the E*TRADE margin agreement. If you
consent to the transfer you will be provided with a new identification number
and password by E*TRADE.
Wit must receive your written response, including a competed Transfer Initiation
Form prior to the close of business on [insert date fourteen (14) days from the
notice date]. If Wisdom does not receive your response and alternative transfer
instruction by this date, your account will be transferred to E*TRADE effective
as of the Closing of the Merger. All responses must be sent by U.S. mail to the
following address:
Wit Capital Corporation
[Insert Address]
----------------
(1) Appropriate adapt names and addresses for other entities.
Sincerely yours,
[Name]
[Title]
[Department]
Wit Capital Corporation
EXHIBIT B
Form of Omnibus Account Letter
[E*TRADE Letterhead]
[Name]
[Title]
E*TRADE
[address]
May ____, 2000
Xx. Xxxxxxx X. Xxxxxxxxxxx
Securities & Exchange Commission
Associate Director
Division of Market Regulation
000 Xxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Re: Application Pursuant to SEC Rule 15c3-3(c) (7) Concerning an Omnibus Account
Used to Facilitate the Prompt and Orderly Transfer of Customer Accounts in Bulk
from One Broker Dealer to Another
Dear Xx. Xxxxxxxxxxx:
E*TRADE, Inc. ("E*TRADE") will be receiving some selected brokerage customer
accounts of Wisdom Corporation ("Wisdom") from U.S. Clearing Corp. Wisdom
currently clears its customers securities accounts through U.S. Clearing Corp.
At the opening of business on Monday, _____, 2000, E*TRADE will begin clearing
such accounts. Accordingly, the accounts will be transferred to E*TRADE from
U.S. Clearing Corp. via a tape-to-tape conversion after the close of business on
Friday, ______, 2000.
In connection with this transaction, this letter is our application pursuant to
SEC Rule 15c3-3 (c) (7) for the allowance of an Omnibus account to facilitate
the prompt and orderly transfer of customer accounts in bulk from U.S. Clearing
Corp. to E*TRADE. In this regard, each account will be established on the books
and records of E*TRADE with the corresponding securities positions being
recorded as "short" in an Omnibus account at U.S. Clearing Corp. The positions
will be transferred from U.S. Clearing Corp. to E*TRADE, and the Omnibus account
gradually will be reduced and eliminated. We respectfully request that the
Omnibus account be designated as a control location adequate for the protection
of customer securities for purposes of Rule 15c3-3. In connection with this
request, we represent the following:
1. The books and records of E*TRADE will reflect the customer security
positions and money balances previously held by Wisdom at U.S. Clearing
Corp.;
2. The books are records of E*TRADE will reflect that the customer securities
not yet transferred to it as part of the conversion are "located" in the
Omnibus account at U.S. Clearing Corp.;
3. E*TRADE assumes the responsibility to clear all transactions in the
customer accounts being transferred; and
4. U.S. Clearing Corp. will provide E*TRADE with written assurances that:
- For purposes of Rule 15c3-3, U.S. Clearing Corp. will treat the Omnibus
account as a customer account and the customer securities maintained in the
Omnibus account as fully paid securities; and
- U.S. Clearing Corp. will promptly deliver the securities in the Omnibus
account to E*TRADE.
Please contact me at [Phone Number] if there are any questions.
Sincerely,
[Name]
[Title]
E*TRADE, Inc.
