{"id":42413,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/joint-venture-agreement-softbank-corp-and-e-trade-group-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"joint-venture-agreement-softbank-corp-and-e-trade-group-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/joint-venture-agreement-softbank-corp-and-e-trade-group-inc.html","title":{"rendered":"Joint Venture Agreement &#8211; Softbank Corp. and E*Trade Group Inc."},"content":{"rendered":"<pre>                            JOINT VENTURE AGREEMENT\n\n                                 by and between\n\n                                 SOFTBANK CORP.\n\n                                      and\n\n                              E*TRADE GROUP, INC.\n\n                                  June 3, 1998\n                                        \n\n \n                            JOINT VENTURE AGREEMENT\n\n     This JOINT VENTURE AGREEMENT ('AGREEMENT') is made as of June 3, 1998, by\nand between E*TRADE GROUP, INC., a Delaware corporation ('E*TRADE'), and\nSOFTBANK CORP., a Japanese corporation ('SOFTBANK').  E*TRADE and SOFTBANK are\nhereunder also referred to collectively as the 'PARTIES' and individually as a\n'PARTY.'\n\n                                    RECITALS\n\n     A.  SOFTBANK is a leading provider of information and distribution services\nin Japan and worldwide as infrastructure for the digital information industry.\n\n     B.  E*TRADE is a leading provider of Internet-based online securities\ntrading services.\n\n     C.  The Parties desire to form a joint venture to provide online securities\ntrading services to residents of Japan on the terms and subject to the\nconditions set forth herein.\n\n     NOW THEREFORE, for valuable consideration, the receipt and adequacy of\nwhich are hereby acknowledged, the Parties hereby agree as follows:\n\n                                   AGREEMENT\n\n1.  DEFINITIONS\n\n        1.1 'AFFILIATE' means any Person: (a) that is controlled by, controls,\nor is under common control with a Party (collectively, a 'CONTROLLED PERSON');\nor (b) that is controlled by, controls, or under common control with any such\nControlled Person, in each case for so long as such control continues; provided,\n                                                                       --------\nhowever, (i) that Affiliates of either Party shall include Persons in which such\nParty owns, directly or indirectly, shares representing at least thirty percent\n(30%) of the voting power represented by such Affiliates' outstanding shares,\nregardless of whether such control actually exists and (ii) Yahoo Inc. shall not\nbe deemed an Affiliate of SOFTBANK or any member of the SOFTBANK Group for\npurposes of this Agreement. For purposes of this definition and Section 1.19,\n'CONTROL' shall mean the possession, directly or indirectly, of power to direct\nor cause the direction of management or policies (whether through ownership of\nsecurities or other ownership interests, by contract or otherwise).\n\n        1.2  'ANNUAL PLAN' means a business operations plan detailing E*TRADE\nJapan's goals and procedures for personnel, technical, financial, administrative\nand marketing activities for E*TRADE Japan's next succeeding fiscal year, as\napproved each year and revised from time to time by the Board.\n\n        1.3 'ARTICLES' means the articles of incorporation of E*TRADE Japan in\nthe form of attached Exhibit 1.3, as the same may be amended from time to time\n                     -----------\nin accordance with this Agreement and the Commercial Code.\n\n        1.4  'BOARD' means the board of directors of E*TRADE Japan.\n\n                                       1\n\n \n        1.5 'BUSINESS' means the development and distribution of online\nelectronic investing services permitting residents of Japan to place and\nconsummate orders for securities over the internet, and to initiate and\nconsummate such other transactions as the Parties may agree from time to time\nafter prior consultation and review of applicable regulatory issues.\n\n        1.6 'BUSINESS DAY' means a day on which commercial banks in the United\nStates and Japan are generally open to conduct their regular banking business.\n\n        1.7  'CLOSING DATE' is defined in Section 3.2(a).\n\n        1.8  'COMMERCIAL CODE' means the Commercial Code of Japan, as amended\nand in effect from time to time.\n\n        1.9  'COMMON STOCK' means common stock of E*TRADE Japan as authorized by\nthe Articles.\n\n        1.10  'CONFIDENTIAL INFORMATION' means all nonpublic or proprietary\ninformation disclosed by SOFTBANK, E*TRADE, E*TRADE Japan, or any of their\nAffiliates to any Party (whether owned by the disclosing Party or a third party\nto whom the disclosing Party owes a non-disclosure obligation) other than\ninformation which the receiving Party can demonstrate: (i) was known to the\nreceiving Party at the time of the disclosure by the disclosing Party; (ii) has\nbecome publicly known through no wrongful act of the receiving Party; (iii) has\nrightfully been received by the receiving Party from a third party; or (iv) has\nbeen independently developed by the receiving Party.\n\n        1.11 'CONSULTING SERVICES AGREEMENT' means the Consulting Services\nAgreement to be entered into between SOFTBANK and E*TRADE Japan on the Closing\nDate in the form of attached Exhibit 1.11, as amended from time to time.\n                             ------------\n\n        1.12  'DIRECTOR' means a member of the Board.\n\n        1.13  'DISCLOSING PARTY' is defined in Section 5.2.\n\n        1.14  'ETJ INTEREST' shall mean, for a Party, the percentage interest\nrepresented by the Securities then held by such Party divided by the all\noutstanding Securities (on an as-converted to Common Stock basis).\n\n        1.15  'E*TRADE AFFILIATES' is defined in Section 3.4(a).\n\n        1.16  'E*TRADE JAPAN' is defined in Section 3.1.\n\n        1.17  'E*TRADE SECURITIES' is defined in Section 6.2(a).\n\n        1.18  'EFFECTIVE DATE' means the date of this Agreement.\n\n        1.19   'FUND' means any investment fund controlled by SOFTBANK or any\nSOFTBANK Affiliate.\n\n        1.20  'KEY OFFICERS' means those E*TRADE Japan employees who are in\nmanagement positions reporting directly to the President.\n\n        1.21  'LAUNCH DATE' is defined in Section 3.1.\n\n                                       2\n\n \n        1.22 'LICENSE AGREEMENT' shall mean the License Agreement to be entered\ninto between E*TRADE and E*TRADE Japan on the Closing Date in the form attached\nhereto as Exhibit 1.22 and as amended from time to time.\n          ------------                                  \n\n        1.23  'LOAN' is defined in Section 3.3.\n\n        1.24  'PARTNERS' means such Persons as SOFTBANK deems strategically\nimportant to the success of E*TRADE Japan and proposes to include in the\nSOFTBANK Group pursuant to Section 3.2(a).\n\n        1.25  'PARTY' and 'PARTIES' are defined in the opening paragraph of this\nAgreement.\n\n        1.26  'PERSON' means a natural individual, partnership, firm,\ncorporation, or other entity or form of business association.\n\n        1.27  'PROMISSORY NOTE' means a promissory note, dated the Closing Date,\nmade by E*TRADE in favor of SOFTBANK, and in the form of attached Exhibit 1.27.\n                                                                  ------------ \n        1.28  'PROPRIETARY INFORMATION' is as defined in the License Agreement.\n\n        1.29  'RECEIVING PARTY' is defined in Section 5.2.\n\n        1.30  'REGISTER' is defined in Section 3.3(c).\n\n        1.31  'SECURITIES' shall mean all outstanding shares of Common Stock and\nany other equity securities of E*TRADE Japan or instruments exercisable or\nexchangeable for or convertible into Common Stock or other equity securities of\nE*TRADE Japan.\n\n        1.32  'SECURITIES BUSINESS LICENSE' means a securities business license\nfor the broker-dealer business under the Japan Securities and Exchange Law (Law\nNo. 25 of 1948, as amended).\n\n        1.33  'SOFTBANK GROUP' is defined in Section 3.2(a).\n\n        1.34  'SPECIAL EXCEPTIONS LAW' means the Law Pertaining to Special\nExceptions to the Commercial Code concerning Auditors of Companies (Kabushiki\nKaisha).\n\n        1.35  'STATUTORY AUDITOR' means a statutory auditor (Kansa-yaku) of\nE*TRADE Japan with powers and duties as specified in the Commercial Code.\n\n        1.36  'TEMPORARY ACCOUNT' is defined in Section 3.2(a).\n\n        1.37  'TERM' is defined in Section 7.1.\n\n        1.38  'TRANSACTION DOCUMENTS' means this Agreement, the Articles, the\nLicense Agreement, the Consulting Services Agreement, the Promissory Note and\neach other agreement entered into between the Parties on or as of the Effective\nDate or the Closing Date, as the case may be, in connection with the\ntransactions contemplated hereby.\n\n                                       3\n\n \n2.  PURPOSE OF JOINT VENTURE\n\n     The Parties hereby associate themselves in a joint venture relationship\nwhich shall have as its principal purpose the establishment and development of\nthe Business.\n\n3.  ESTABLISHMENT AND CAPITALIZATION OF E*TRADE JAPAN\n\n        3.1  Establishment.  The Parties agree that the joint venture\n             -------------\ncontemplated by this Agreement shall be carried out exclusively through a newly-\nformed Japanese kabushiki kaisha established by the Parties pursuant to this\nSection 3.2 ('E*TRADE JAPAN'). E*TRADE Japan's corporate name shall be 'E.TRADE\nKabushiki Kaisha' in Japanese and 'E*TRADE Japan K.K.' in English. The Parties\nshall use commercially reasonable efforts to cause E*TRADE Japan to commence\ncommercial operations by January 10, 1999 (the 'LAUNCH DATE'). Promptly\nfollowing E*TRADE Japan's receipt of a broker-dealer business license pursuant\nto the Securities and Exchange Law (Law No. 25 of 1948, as amended), the Parties\nshall cooperate to cause the Articles to be amended to reflect (a) 'E.TRADE\nSHOKEN KABUSHIKI KAISHA' as E*TRADE Japan's name in Japanese, and (b) the\nappropriate business purposes of E*TRADE Japan.\n\n3.2  Capitalization.\n     -------------- \n        (a)  Initial Capitalization.  E*TRADE Japan shall, as of the second\n             ----------------------\n     (2nd) Business Day immediately following the Effective Date (the 'CLOSING\n     DATE'), have authorized capital stock consisting of one class of shares\n     designated as Common Stock with the rights set forth in the Articles. \n     Fifty-four thousand (54,000) shares of Common Stock, with a par value of\n     (Yen)50,000 per share, shall be issued on the Closing Date. Listed in\n     Exhibit 3.2 are the SOFTBANK Affiliates, Funds and Partners which shall be\n     included as the initial SOFTBANK shareholders of E*TRADE Japan (the\n     'SOFTBANK GROUP'). SOFTBANK shall notify E*TRADE in writing regarding any\n     SOFTBANK Affiliates, Funds and Partners which SOFTBANK proposes to include\n     as additional SOFTBANK shareholders of E*TRADE Japan following the Closing\n     Date, whether in connection with a subscription for newly-issued Securities\n     pursuant to Section 3.4 or by way of transfer of Securities from one or\n     more members of the then-current SOFTBANK Group. E*TRADE shall have the\n     right to approve such proposed additional SOFTBANK Group members, which\n     approval shall not be unreasonably withheld. E*TRADE shall deliver to\n     SOFTBANK written confirmation of its approval of or objection to additional\n     proposed SOFTBANK Group members within five (5) Business Days of E*TRADE's\n     receipt of SOFTBANK's notice, and any such entities so approved by E*TRADE\n     shall be deemed to be members of the SOFTBANK Group for purposes of this\n     Agreement. E*TRADE Japan's initial equity shall be funded as follows: On\n     the Effective Date, SOFTBANK and E*TRADE shall (i) instruct their\n     respective banks to wire (Yen)1,566,000,000 and (Yen)1,134,000,000,\n     respectively, to a temporary account ('Betsudan Yokin') established by\n     SOFTBANK at The Fuji Bank, Limited (Tokyo headquarters), account number\n     3948, for purposes of incorporating E*TRADE Japan (the 'TEMPORARY\n     ACCOUNT'), and (ii) shall exchange with each other copies of such wire\n     instructions. Upon written confirmation of receipt of such wire transfers\n     in the Temporary Account on or prior to the Closing Date (a copy of which\n     confirmation SOFTBANK shall deliver promptly to E*TRADE), the Parties shall\n     be deemed to have made, effective as of the Closing Date, and SOFTBANK\n     shall cause to be reflected in the documentation for E*TRADE Japan's\n     registration of incorporation, the following initial subscriptions for\n     shares of Common Stock:\n\n                                       4\n\n \n                (i)  SOFTBANK Group Initial Subscription.  The SOFTBANK Group \n                     -----------------------------------  \n     shall, collectively, subscribe for thirty-one thousand three hundred twenty\n     (31,320) shares of Common Stock, representing a fifty-eight percent (58%)\n     ETJ Interest; and\n\n               (ii) E*TRADE Purchase.  E*TRADE shall subscribe for twenty-two\n     thousand six hundred eighty (22,680) shares of Common Stock, representing a\n     42% ETJ Interest.\n\n        (b)  Certain Deliveries.  On the Closing Date:\n             ------------------                       \n\n             (i)  SOFTBANK shall (A) execute and deliver to E*TRADE the\n     Transaction Documents (other than this Agreement) to which SOFTBANK is a\n     party, (B) cause E*TRADE Japan to execute and deliver to E*TRADE the\n     License Agreement and the Consulting Services Agreement and (C) subject to\n     Section 3.3, cause to be wired to E*TRADE the Loan proceeds; and\n\n            (ii) E*TRADE shall execute and deliver to SOFTBANK and to E*TRADE\n     Japan the License Agreement, and execute and deliver to SOFTBANK the other\n     Transaction Documents (other than this Agreement) to which E*TRADE is a\n     party.\n\n        (c)  Acknowledgment of Agreement; Delivery of Share Certificates.\n             -----------------------------------------------------------\n     Promptly after the Closing Date, SOFTBANK shall cause E*TRADE Japan (i) to\n     deliver to each Party its written acknowledgment of, and agreement to abide\n     by, the terms of this Agreement, and (ii) at the request of either SOFTBANK\n     or E*TRADE, to promptly issue and deliver to the SOFTBANK Group and to\n     E*TRADE share certificates representing the shares of Common Stock\n     subscribed for and purchased pursuant to this Section 3.2.\n\n        3.3  Loan.\n             ----\n\n        (a)  In General.  In order to assist E*TRADE in funding its purchase of\n             ----------\n     Common Stock pursuant to Section 3.2, SOFTBANK hereby agrees to loan to\n     E*TRADE on the Closing Date, by wire transfer to such bank account as\n     E*TRADE shall specify in writing to SOFTBANK on or before the Effective\n     Date, and E*TRADE hereby agrees, to borrow from and repay to SOFTBANK,\n     (Yen)567,000,000 (the 'LOAN'). The Loan shall be subject to E*TRADE's prior\n     execution and delivery to SOFTBANK of the Promissory Note and the terms of\n     E*TRADE's repayment of the Loan shall be governed thereby.\n\n        (b)  The Register.  E*TRADE shall maintain at its address referred to in\n             ------------\n     Section 10.2 hereof a register (the 'REGISTER') for the recordation of (i)\n     the name and address of each Noteholder (as defined in the Promissory Note)\n     and (ii) the principal amount of the Loan owing to, and any Promissory Note\n     evidencing such Loan owned by, each Noteholder from time to time.\n     Notwithstanding anything to the contrary in this Agreement, E*TRADE and\n     each Noteholder shall treat each Person whose name is recorded in the\n     Register as the owner of the Loan for all purposes of this Agreement. The\n     Register shall be available for inspection by any Noteholder at any\n     reasonable time and from time to time upon reasonable prior notice.\n\n        (c)  Forms.  The Noteholder:\n             -----                  \n\n                (i)  shall furnish to E*TRADE on or before the date of any\n     payment to such Noteholder by E*TRADE pursuant to the terms of the\n     Promissory Note an\n\n                                       5\n\n \n     accurate and complete original signed copy of Internal Revenue Service Form\n     W-8, or successor applicable form, certifying to such information as may be\n     requested to establish such Noteholder's legal entitlement at the date of\n     such certificate to an exemption from U.S. withholding tax under the\n     provisions of Section 881(c) of the Code with respect to payments of\n     interest to be made on the Loan (and deliver to E*TRADE a further copy of\n     such form on or before the date it expires or becomes obsolete and after\n     the occurrence of any event requiring a change in the most recently\n     provided form); and\n\n                (ii) agrees to the extent legally entitled to do so, upon\n     E*TRADE's reasonable request, to provide to E*TRADE (for the benefit of\n     E*TRADE) (A) such other forms as may be reasonably required in order to\n     establish the legal entitlement of such Noteholder to an exemption from\n     U.S. withholding tax with respect to payment of interest made on the Loan\n     and (B) such other supplemental forms as may at any time be required as a\n     result of changes to applicable law or regulations in order to confirm or\n     maintain in effect its entitlement to exemption from U.S. withholding tax\n     on any payments of interest made on the Loan; provided, however, that\n                                                   --------\n     E*TRADE shall promptly reimburse all of such Noteholder's reasonable \n     out-of-pocket costs and expenses (including attorneys' fees) incurred in\n     connection with the performance of its obligations pursuant to this Section\n     3.3(c).\n\n        3.4  Additional Capital; Preemptive Right.\n             ------------------------------------ \n\n        (a)  Subject to Section 4, the Board may, by written notice to the\n     Parties pursuant to the terms hereof, setting forth the terms, conditions\n     and reasons for the financing, call for the Parties to subscribe for such\n     additional Securities as the Board may deem appropriate based on E*TRADE\n     Japan's capital requirements from time to time. Except as set forth in\n     Section 3.4(b), the SOFTBANK Group, E*TRADE and E*TRADE Securities (and\n     E*TRADE's other Affiliates, to the extent approved by SOFTBANK pursuant to\n     this Section 3.4(a), the 'E*TRADE AFFILIATES') shall have the right to\n     purchase their respective pro rata share (which shall be equal to their\n     then-current respective ETJ Interests) of any new issuance of Securities\n     (i) proposed to be issued to the Parties pursuant to the immediately\n     preceding sentence, and (ii) in the event of a proposed new issuance of\n     Securities to any other Person, on the same terms and conditions as such\n     Securities are offered to any other Person. SOFTBANK and E*TRADE shall each\n     notify the other Party and E*TRADE Japan in writing of its decision to\n     participate in any such proposed new issuance of Securities within ten (10)\n     Business Days after receipt of the notice described in the first sentence\n     of this Section 3.4(a). SOFTBANK shall have the right to approve in advance\n     (which approval shall not be unreasonably withheld) any Affiliates of\n     E*TRADE which E*TRADE proposes to include as shareholders of E*TRADE Japan.\n     To the extent the SOFTBANK Group or E*TRADE (including E*TRADE Affiliates)\n     elects not to subscribe for its full pro rata share of such Securities,\n     SOFTBANK Group (if E*TRADE does not so subscribe) and E*TRADE (if the\n     SOFTBANK Group does not so subscribe) shall be entitled to purchase any of\n     the unsubscribed Securities. The Party electing to subscribe for any of the\n     unsubscribed Securities shall, together with E*TRADE Japan, effect the\n     closing of such subscription within thirty (30) days of its receipt of the\n     nonsubscribing Party's election not to subscribe for such Securities, on\n     the terms contained in the notice first mentioned above in this Section\n     3.4(a). Any subsequent proposed subscription of such Securities shall again\n     be subject to the Parties' preemptive rights, and shall require compliance\n     with the procedures, described in this Section 3.4(a).\n\n        (b)  Notwithstanding Section 3.4(a), the SOFTBANK Group and E*TRADE\n     shall not have the right to purchase their pro rata share of new issuances\n     of\n\n                                       6\n\n \n     Securities issued pursuant to an E*TRADE Japan employee stock option plan\n     adopted by the Board in accordance with this Agreement.\n\n        3.5  Employee Stock Option Plan.  The Parties agree that an employee\n             --------------------------\nstock option plan would be beneficial to E*TRADE Japan, and accordingly shall\ncooperate in good faith with a view towards establishing such a plan within\ntwelve (12) months after the Effective Date on terms mutually agreed by the\nParties. The Securities allocated to an employee stock option plan shall not,\ninitially, represent more than a two percent (2%) ETJ Interest. Any Securities\nallocated to an employee stock option plan shall be newly-issued and accordingly\nshall dilute the Parties' respective ETJ Interests on a pro rata basis.\n\n        3.6  ETJ Interest.  The Parties agree to implement E*TRADE Japan's\n             ------------\ncapital structure and the terms of this Agreement so that at all times during\nthe term hereof, including following E*TRADE Japan's initial public offering,\n(a) the SOFTBANK Group's ETJ Interest (on a fully-diluted basis taking into\naccount any shares reserved for issuance pursuant to any employee stock option\nplan) shall not be less than fifty and one tenth percent (50.1%) and (b) E*TRADE\nGroup's ETJ Interest (on a fully-diluted basis taking into account any shares\nreserved for issuance pursuant to any employee stock option plan) shall not be\nless than thirty-four and nine-tenths percent (34.9%).\n\n4.  OPERATION AND MANAGEMENT OF E*TRADE JAPAN\n\n        4.1  Operation of E*TRADE Japan.  The Parties agree to take all actions\n             --------------------------                                        \nnecessary to ensure that E*TRADE Japan shall be operated in accordance with the\nterms of this Agreement and the other Transaction Documents.\n\n        4.2  Board of Directors.  E*TRADE Japan will be managed by the Board in\n             ------------------                                                \naccordance with the terms of this Agreement and applicable law.  The Board shall\ninitially consist of five (5) Directors, three (3) of whom shall be nominated by\nSOFTBANK and two (2) of whom shall be nominated by E*TRADE.  If  E*TRADE's ETJ\nInterest at any time decreases to less than thirty-five percent (35%), the\nParties shall cause the Board constituency to be adjusted within thirty (30)\nBusiness Days of such decrease so that four (4) Directors are nominated by\nSOFTBANK and one (1) Director is nominated by E*TRADE.  If the SOFTBANK Group's\nETJ Interest at any time decreases to less than forty two percent (42%), the\nParties shall cause the Board constituency to be adjusted so that only two (2)\nDirectors are nominated by SOFTBANK, and if the SOFTBANK Group's ETJ Interest at\nany time decreases to less than thirty-five percent (35%), the Parties shall\ncause the Board constituency to be adjusted so that only one (1) Director is\nnominated by SOFTBANK, in each case within thirty (30) Business Days of the\ntriggering decrease.\n\n        4.3   Removal; Reappointment of Directors.  Any Director may be removed\n              -----------------------------------\nfor cause in accordance with applicable law. In addition, each Party having the\nright to appoint a Director pursuant to this Section 4 shall also have the\nright, in its sole discretion, to remove such Director at any time, effective\nupon delivery of written notice to E*TRADE Japan, the Director to be removed and\nto the other Party. In the case of a vacancy in the office of a Director for any\nreason (including removal pursuant to the preceding sentence), the vacancy shall\nbe filled by the Party that nominated or has the right to nominate the Director\nin question.\n\n        4.4  Board Meetings.  The President shall have the authority to convene\nBoard meetings, including the authority to specify the time and place of such\nmeetings (with video\n\n                                       7\n\n \nconference or any other legally permitted means of meeting to be permitted at\nthe request of any Director); provided, however, that (i) the Board shall meet\n                              --------\nat least once during each calendar quarter and (ii) written notice of such\nmeetings shall be given not less than twenty (20) Business Days in advance\n(which twenty (20)-Business Day period may be shortened by written waiver of\nDirectors or actual attendance by Directors, without objection, at a special\nBoard meeting). Board meetings shall be conducted in the Japanese language (with\nEnglish translation) and minutes of such meetings shall be prepared by E*TRADE\nJapan in Japanese and English and distributed to each Director promptly\nfollowing a meeting. In the event of conflict or controversy, the Japanese\nversion of the minutes shall control. Proposals or reports brought before any\nBoard or shareholders' meeting for information or action (including without\nlimitation E*TRADE Japan's annual and semi-annual financial statements) shall be\nprepared in English and Japanese. In the event of conflict or controversy, the\nJapanese version thereof shall control. Any and all reasonable travel costs\n(including without limitation business class air travel) and expenses incurred\nfor purposes of attendance by a Party's Directors at Board meetings held outside\nthe country where the Party's corporate headquarters is located shall be\nreimbursed by E*TRADE Japan.\n\n        4.5  Board Quorum, Resolutions.  A quorum shall be deemed to exist for\n             -------------------------\npurposes of Board actions so long as at least three (3) Directors are present,\nincluding one Director appointed by each of the Parties. If no Directors\nnominated by a Party attend a duly noticed Board meeting, such meeting shall be\nimmediately adjourned and rescheduled, and written notice of such rescheduled\nmeeting shall be delivered to the Directors not less than five (5) Business Days\nin advance of the rescheduled meeting. If the number of Directors who attend\nsuch rescheduled meeting is not sufficient to constitute a quorum under the\nfirst sentence of this Section 4.5, a quorum shall be deemed to exist for\npurposes of the rescheduled meeting notwithstanding such non-attending\nDirectors' absence so long as there is a sufficient number of directors present\nto constitute a valid quorum pursuant to the Commercial Code. Any action,\ndetermination or resolution of the Board shall require the affirmative vote of a\nmajority of Directors present at a meeting at which a valid quorum pursuant to\nthis Section 4.5 is present.\n\n        4.6  E*TRADE Approval Rights.  Notwithstanding any other provision of\n             -----------------------\nthis Agreement, in addition to approval by the Board, E*TRADE's prior written\napproval (either in the form of a written consent or in the form of E*TRADE's\nDirector voting in favor of such action at a duly held Board meeting) shall be\nrequired for any of the actions described in attached Exhibit 4.6. E*TRADE's\n                                                      ------------\napproval rights in respect of the President, Key Officers and Statutory Auditors\npursuant to Sections 4.7 and 4.8 shall be subject to the limitations set forth\nin attached Exhibit 4.6.\n            ------------\n\n        4.7  Representative Director; Key Officers.  E*TRADE Japan shall have\n             -------------------------------------\none (1) President, who shall be the Representative Director of E*TRADE Japan in\naccordance with the Commercial Code. The President shall be elected by the Board\nfrom among the Directors nominated by SOFTBANK pursuant to Section 4.2. E*TRADE\nshall have the right to approve the President and the Key Officers (which\napproval shall not be unreasonably withheld). SOFTBANK shall have the right,\nexercisable in its sole discretion, to remove and, subject to E*TRADE's prior\napproval of the proposed successor, replace the President or any Key Officer at\nany time, effective upon the delivery of written notice to E*TRADE Japan, the\nPresident or the Key Officer, and E*TRADE. SOFTBANK shall also have the right to\nappoint a successor President or Key Officer, subject to E*TRADE's prior\napproval of the proposed successor, in the event a vacancy arises for any\nreason.\n\n                                       8\n\n \n        4.8  Statutory Auditors.  E*TRADE Japan shall have three (3) Statutory\n             ------------------\nAuditors whom shall be nominated by SOFTBANK, subject to E*TRADE's prior\napproval (which approval shall not be unreasonably withheld and provided that\naffiliation with SOFTBANK or any member of the SOFTBANK Group shall not be\ndeemed a basis for E*TRADE's withholding its approval of a Statutory Auditor\nhereunder). A Statutory Auditor may be removed for cause in accordance with the\napplicable law. SOFTBANK shall also have the right, exercisable in its sole\ndiscretion, to remove and, subject to E*TRADE's prior approval of the proposed\nsuccessor, replace a Statutory Auditor at any time, effective upon the delivery\nof written notice to E*TRADE Japan, the Statutory Auditor to be removed and\nE*TRADE. SOFTBANK shall also further have the right to appoint a successor\nStatutory Auditor, subject to E*TRADE's prior approval of the proposed\nsuccessor, in the event a vacancy arises for any reason.\n\n        4.9  Shareholders' Meetings.  Shareholders of E*TRADE Japan shall\n             ----------------------\nreceive notice of each shareholders' meeting at least twenty (20) Business Days\nbefore the scheduled date of such meeting. E*TRADE Japan shall have at least one\nshareholders' meeting each calendar year. Such meeting will take place at such\ntime and place as is determined by the Board. Meetings shall be conducted in the\nJapanese language (with English translation to the extent requested by E*TRADE),\nand minutes of such meetings shall be prepared by E*TRADE Japan in Japanese and\nEnglish. In the event of conflict or controversy, the Japanese version of the\nminutes shall control.\n\n        4.10  Voting.  Each Party shall vote all Securities held by it (and\n              ------\nshall cause all Securities held by its permitted transferees under Section 8) to\neffect the provisions of this Section 4.\n\n        4.11  Annual Plan.  E*TRADE Japan's President shall prepare, and the\n              -----------\nBoard shall approve, an Annual Plan with respect to each fiscal year no later\nthan sixty (60) days prior to the commencement of the fiscal year. The Parties\nshall cause E*TRADE Japan to conduct its operations in accordance with an Annual\nPlan, which shall set forth certain financial performance goals, including\nwithout limitation with respect to revenues, profits, return on net assets and\nreturn on equity for the subject fiscal year.\n\n        4.12  Financial Statements and Accounting Records.  Financial statements\n              -------------------------------------------\nfor E*TRADE Japan, including without limitation a balance sheet, income\nstatement, statement of cash flows and statement of shareholders' equity, shall\nbe submitted by E*TRADE Japan to each of the Parties (i) within sixty (60) days\nafter the end of each fiscal quarter for such quarter, and (ii) within ninety\n(90) days after the end of each fiscal year for such year. Each of the annual\nfinancial statements shall be audited and certified by an internationally\nrecognized accounting firm (which will act as an independent auditor under the\nSpecial Exceptions Law) retained by E*TRADE Japan and jointly selected by\nSOFTBANK and E*TRADE. All financial statements shall be (i) prepared in\naccordance with generally accepted accounting principles in Japan and (ii) in\nreasonable detail and shall contain such financial data as SOFTBANK and E*TRADE\nmay deem necessary in order to keep each of them advised of E*TRADE Japan's\nfinancial status (although quarterly statements need not include footnotes and\nmay be subject to year-end adjustments).\n\n        4.13  Right of Inspection.  During office hours of E*TRADE Japan, and\n              -------------------\nupon reasonable notice to E*TRADE Japan, each Party shall have full access to\nall properties, books of account, and records of E*TRADE Japan, and each Party\nshall have the right to make copies from such books and records at its own\nexpense. Any information obtained by \n\n                                       9\n\n \nthe Parties through exercise of rights granted under this Section 4.13 shall, to\nthe extent constituting Confidential Information hereunder, be subject to the\nconfidentiality provisions set forth in Section 5.2.\n\n5.  ADDITIONAL COVENANTS\n\n        5.1  Cooperation.  In accordance with and subject to the License\n             -----------\nAgreement, E*TRADE shall provide E*TRADE Japan with an exclusive license, under\nall of its intellectual property rights (including its trademarks), sufficient\nto conduct the Business. In addition, upon the terms and subject to the License\nAgreement, E*TRADE shall provide E*TRADE Japan with such technical support as it\nmay reasonably require to localize E*TRADE's online securities trading\ntechnology for the Japanese environment and to interconnect with the Tokyo Stock\nExchange and other Japanese exchanges, such technical support to be provided\nwithout charge (except for reimbursement of reasonable out-of-pocket expenses).\nIn accordance with the Consulting Services Agreement, SOFTBANK shall provide\nconsulting services to E*TRADE Japan regarding (i) necessary Japanese regulatory\napprovals required for the Business and (ii) strategic business opportunities\nrelating to the Business. The Parties agree that E*TRADE Japan shall pay a\nroyalty to E*TRADE in accordance with the License Agreement and a consulting fee\nto SOFTBANK in accordance with the Consulting Services Agreement; provided, \n                                                                  --------\nhowever, that if E*TRADE Japan fails to complete its initial public offering \nby the fourth (4th) anniversary of the Launch Date, the royalty payable to \nE*TRADE under the License Agreement and the consulting fee payable to SOFTBANK\nunder the Consulting Services Agreement shall each be adjusted to equal a \npercentage of E*TRADE Japan's gross revenues agreed upon by the Parties and \napproved by the Board, and shall be payable quarterly from and after the \nfourth (4th) anniversary of the Launch Date.\n\n5.2  Confidentiality.\n     --------------- \n\n        (a)  The Parties recognize that, in connection with the performance of\nthis Agreement, each Party (in such capacity, the 'DISCLOSING PARTY') may\ndisclose Confidential Information to the other Party (the 'RECEIVING PARTY').\nThe Receiving Party agrees (i) not to use any such Confidential Information for\nany purpose other than in the performance of its obligations under this\nAgreement or any Transaction Document and (ii) not to disclose any such\nConfidential Information, except to its employees and (in the case of SOFTBANK,\nemployees of other members of the SOFTBANK GROUP who agree, in a writing\nsatisfactory to E*TRADE, to be bound hereby) who are reasonably required to have\nthe Confidential Information in connection herewith. The Receiving Party agrees\nto take all reasonable measures to protect the secrecy and confidentiality of,\nand avoid disclosure or unauthorized use of, the Disclosing Party's Confidential\nInformation.\n\n        (b)  Each Party agrees that its obligations under this Section 5.2 are\nnecessary and reasonable to protect the other Party and its business, that any\nviolation of these provisions could cause irreparable injury to the other Party\nfor which money damages would be inadequate, and that, in addition to any other\nremedies that may be available in law, the other Party shall be entitled to\nobtain injunctive relief against the threatened breach of the provisions of this\nSection 5.2 without the necessity of proving actual damages. The Parties agree\nthat the remedies set forth in this Section 5.2 are in addition to and in no way\npreclude any other remedies or actions that may be available under this\nAgreement.\n\n                                       10\n\n \n        5.3  Confidentiality of Agreement; Publicity.  Each Party agrees that\n             ---------------------------------------\nthe terms and conditions of this Agreement and the Transaction Documents shall\nbe treated as confidential information and that no reference thereto shall be\nmade thereto without the prior written consent of the other Party (which consent\nshall not be unreasonably withheld or delayed) except (i) as required by\napplicable disclosure laws, (ii) to its accountants, banks, financing sources,\nlawyers and other professional advisors in connection with this Agreement,\nprovided that such parties undertake in writing (or are otherwise bound by rules\nof professional conduct) to keep such information strictly confidential, (iii)\nas necessary in connection with the enforcement of the Agreement between the\nParties, or (iv) pursuant to joint press releases of the Parties prepared in\ngood faith. The Parties will consult with each other, in advance, with regard to\nthe terms of all proposed press releases, public announcements and other public\nstatements with respect to the transactions contemplated hereby.\n\n        5.4  Noncompetition.  During the term of this Agreement, neither Party\n             --------------\nshall, directly or indirectly, offer online electronic investing services\npermitting any Person residing in Japan to execute trades over the internet in\nsecurities which are listed on a securities exchange or quoted on an interdealer\nquotation system which is governed by the rules of a national securities\nassociation pursuant to applicable law. In the event that this Agreement is\nterminated due to a Party's breach (including, if SOFTBANK is the terminating\nParty, a breach by E*TRADE under the License Agreement), the breaching Party's\nobligations pursuant to this Section 5.4 shall remain in effect for a period of\ntwenty-four (24) months following such termination.\n\n        5.5  Regulatory Approvals.  SOFTBANK shall be primarily responsible for\n             --------------------                                              \nassisting E*TRADE Japan to obtain such approvals, consents and similar actions\nfrom Japanese governmental authorities, and E*TRADE shall be primarily\nresponsible for assisting E*TRADE Japan to obtain such approvals, comments and\nsimilar actions from governmental authorities outside of Japan, as may be\nnecessary or appropriate in order to consummate the transactions contemplated\nunder the Transaction Documents.  Each Party shall provide such assistance, at\nthe other Party's cost, as the other Party may reasonably request in connection\nwith such consents and approvals.\n\n        6.  WARRANTIES AND REPRESENTATIONS OF THE PARTIES\n\n        6.1  Warranties of SOFTBANK. SOFTBANK hereby represents and warrants to\n             ----------------------\nE*TRADE that, as of the Effective Date, the following statements are and shall\nbe true and correct:\n\n        (a)  Organization.  SOFTBANK is a corporation duly organized and validly\n             ------------                                                       \nexisting under the laws of Japan, and has the corporate power and authority\nto enter into and perform this Agreement and the other Transaction\nDocuments to which it is a party.\n\n        (b)  Permits; Approvals.  SOFTBANK holds all licenses, permits,\n             ------------------\ncertifications and other authorizations, the absence of which would have a\nmaterial adverse effect on its financial condition or business, and there has\nbeen no default or violation under any such authorization and there is no\nproceeding or investigation that is pending or, to SOFTBANK's knowledge,\nthreatened under which any such authorization may be revoked, terminated or\nsuspended.\n\n        (c)  Authorization.  All corporate action on the part of SOFTBANK\n             -------------\nnecessary for the authorization, execution and delivery of this Agreement and\nthe other \n\n                                       11\n\n \nTransaction Documents to which it is a party and for the performance\nof all of its obligations hereunder and thereunder has been taken, and this\nAgreement and the other Transaction Documents to which it is a party when fully\nexecuted and delivered, shall each constitute a valid, legally binding and\nenforceable obligation of SOFTBANK.\n\n        (d)  Government and Other Consents.  Other than any licenses, permits,\n             -----------------------------                                    \ncertifications or other authorizations which may be required in connection with\nthe Business, as to which SOFTBANK makes no representation, no consent,\nauthorization, license, permit, registration or approval of, or exemption or\nother action by, any governmental or public body or authority, or any other\nPerson, is required in connection with SOFTBANK's execution, delivery and\nperformance of this Agreement and the other Transaction Documents to which it is\na party, or if any such consent is required, SOFTBANK has satisfied the\napplicable requirements.\n\n        (e)  Effect of Agreement.  SOFTBANK's execution, delivery and\n             -------------------\nperformance of this Agreement and the other Transaction Documents to which it is\na party will not (i) violate the Articles of Incorporation of SOFTBANK or any\nprovision of any law, statute, rule or regulation to which SOFTBANK is subject,\n(ii) violate any judgment, order, writ, injunction or decree of any court\napplicable to SOFTBANK, (iii) have any effect on the compliance of SOFTBANK with\nany applicable licenses, permits or authorizations which would materially and\nadversely affect SOFTBANK, (iv) result in the breach of, give rise to a right of\ntermination, cancellation or acceleration of any obligation with respect to\n(presently or with the passage of time), or otherwise be in conflict with any\nterm of, or affect the validity or enforceability of, any agreement or other\ncommitment to which SOFTBANK is a party and which would materially and adversely\naffect SOFTBANK or (v) result in the creation of any lien, pledge, mortgage,\nclaim, charge or encumbrance upon any assets of SOFTBANK; provided, however,\n                                                          --------\nthat regulatory approvals may be required in connection with the conducting the\nBusiness with respect to certain securities and SOFTBANK makes no representation\nwith respect to any such approvals pending the Parties' further review of\nregulatory issues in connection with the Business.\n\n        (f)  Litigation.  There are no actions, suits or proceedings pending or,\n             ----------\nto SOFTBANK's knowledge, threatened, against SOFTBANK before any court or\ngovernmental agency which question SOFTBANK's right to enter into or perform\nthis Agreement or the other Transaction Documents to which it is a party, or\nwhich question the validity of this Agreement or any of the other Transaction\nDocuments.\n\n        (g)  Disclosure.  No representation or warranty by SOFTBANK contained in\n             ----------\nthis Agreement or in any other Transaction Document to which it is a party, and\nno exhibit, writing or other instrument required to be furnished by SOFTBANK\npursuant hereto contains any untrue statement of a material fact or omits any\nmaterial fact necessary in order to make the statements and information\ncontained therein not misleading.\n\n        6.2  Warranties of E*TRADE.  E*TRADE hereby represents and warrants to\n             ---------------------\nSOFTBANK that, as of the Effective Date, the following statements are and shall\nbe true and correct:\n\n        (a)  Organization.  E*TRADE is a corporation duly organized and validly\n             ------------\nexisting under the laws of Delaware, and E*TRADE Securities, Inc. ('E*TRADE\nSECURITIES') is a corporation duly organized and validly existing under the laws\nof California. \n\n                                       12\n\n \nE*TRADE has the corporate power and authority to enter into and perform this\nAgreement and the other Transaction Documents to which it is a party.\n\n        (b)  Permits; Approvals.  Each of E*TRADE and E*TRADE Securities hold\n             ------------------\nall licenses, permits, certifications and other authorizations, including\nwithout limitation any such authorizations required under U.S. federal\nsecurities laws, the absence of which would have a material adverse effect on\nthe financial condition or business of E*TRADE or E*TRADE Securities, as the\ncase may be, and there has been no default or violation under any such\nauthorization and there is no proceeding or investigation that is pending or, to\nE*TRADE's knowledge, threatened under which any such authorization may be\nrevoked, terminated or suspended.\n\n        (c)  Authorization.  All corporate action on the part of E*TRADE\n             -------------\nnecessary for the authorization, execution and delivery of this Agreement and,\nthe other Transaction Documents to which it is a party and for the performance\nof all of its obligations hereunder and thereunder has been taken, and this\nAgreement, the License Agreement and the other Transaction Documents to which it\nis a party, when fully executed and delivered, shall each constitute a valid,\nlegally binding and enforceable obligation of E*TRADE.\n\n        (d)  Government and Other Consents.  Other than any licenses, permits,\n             -----------------------------                                    \ncertifications or other authorizations which may be required from regulatory\nauthorities in Japan in connection with the Business, as to which E*TRADE makes\nno representation, no consent, authorization, license, permit, registration or\napproval of, or exemption or other action by, any governmental or public body or\nauthority, or any other Person, is required in connection with E*TRADE's\nexecution, delivery and performance of this Agreement or the other Transaction\nDocuments to which it is a party, or if any such consent is required, E*TRADE\nhas satisfied any applicable requirements.\n\n        (e)  Effect of Agreement.  E*TRADE's execution, delivery and performance\n             -------------------\nof this Agreement and the other Transaction Documents to which it is a party\nwill not (i) violate the Articles of Incorporation of E*TRADE or any provision\nof any law, statue, rule or regulation to which it is subject, (ii) violate any\njudgment, order, writ, injunction or decree of any court applicable to E*TRADE,\n(iii) have any effect on the compliance of E*TRADE with any applicable licenses,\npermits or authorizations which would materially and adversely affect E*TRADE,\n(iv) result in the breach of, give rise to a right of termination, cancellation\nor acceleration of any obligation with respect to (presently or with the passage\nof time), or otherwise be in conflict with, any term of, or affect the validity\nor enforceability of any agreement or other commitment to which E*TRADE is a\nparty and which would materially and adversely affect E*TRADE, or (v) result in\nthe creation of any lien, pledge, mortgage, claim, charge or encumbrance upon\nany assets of E*TRADE; provided, however, that Japanese regulatory approvals may\n                       --------\nbe required in connection with the conducting the Business with respect to\ncertain securities and E*TRADE makes no representation with respect to any such\napprovals pending the Parties' further review of regulatory issues in connection\nwith the Business.\n\n        (f)  Litigation.  There are no actions, suits or proceedings pending or,\n             ----------\nto E*TRADE's knowledge, threatened, against E*TRADE before any court or\ngovernmental agency which question E*TRADE's right to enter into or perform this\nAgreement or other Transaction Documents to which it is a party, or which\nquestion the validity of this Agreement or any of the other Transaction\nDocuments.\n\n                                       13\n\n \n        (g)  Disclosure.  No representation or warranty by E*TRADE contained in\n             ----------\nthis Agreement or any other Transaction Document to which it is a party, and no\nexhibit, writing or other instrument required to be furnished pursuant hereto\ncontains any untrue statement of a material fact or omits any material fact\nnecessary in order to make the statements and information contained therein not\nmisleading.\n\n7.  TERM AND TERMINATION\n\n        7.1  Term.  This Agreement shall be effective as of the Effective Date\n             ----\nand shall continue in effect until and unless terminated pursuant to Section\n7.2. \n\n        7.2 Termination. This Agreement may be terminated as follows:\n            -----------\n\n        (a)  Upon the Parties' mutual written agreement.\n\n        (b)  If SOFTBANK or E*TRADE fails to perform, in any material respect,\nany of its material obligations hereunder or any of the other Transaction\nDocuments, and if such default continues for a period of thirty (30) days after\nthe date the defaulting Party first receives written notice of such default from\nthe other Party, then E*TRADE (if SOFTBANK is the defaulting Party) or SOFTBANK\n(if E*TRADE is the defaulting Party) shall have the right to terminate this\nAgreement effective immediately upon written notice to the defaulting Party at\nany time after such thirty (30)-day period.\n\n        (c)  SOFTBANK shall have the right to terminate this Agreement,\neffective immediately upon written notice to E*TRADE, in the event that E*TRADE\nJapan has elected to terminate the License Agreement in accordance with its\nterms. E*TRADE shall have the right to terminate this Agreement effective\nimmediately upon written notice to SOFTBANK in the event that E*TRADE has\nelected to terminate the License Agreement in accordance with its terms.\n\n        (d)  Either E*TRADE or SOFTBANK shall have the right to terminate this\nAgreement, effective immediately upon written notice to the other Party and\nE*TRADE, in the event that E*TRADE (where SOFTBANK is the Party giving notice)\nor SOFTBANK (where E*TRADE is the Party giving notice) is dissolved, liquidated\nor declared bankrupt or a voluntary or involuntary bankruptcy filing is made by\nsuch Party.\n\n        7.3  Effect.  Upon termination of this Agreement, the Parties shall\n             ------\nnegotiate in good faith a possible purchase by one Party of all outstanding\nSecurities held by the other Party or the sale of E*TRADE Japan to a third\nparty. In the event that, notwithstanding their good faith negotiations, the\nParties are unable to agree upon one Party's purchase of the other Party's\nSecurities or the sale of E*TRADE Japan to a third party within thirty (30) days\nof the notice of termination, the Parties shall cooperate to cause E*TRADE Japan\nto be liquidated as promptly as practical in accordance with applicable law. The\nrights and obligations of the Parties under Sections 5.2, 5.3, 5.4 (to the\nextent provided therein), this Section 7.3, and Sections 7.4, 7.5, 9 and 10\nshall survive any termination of this Agreement.\n\n        7.4  Return of Confidential Information.  Upon the termination of this\n             ----------------------------------                               \nAgreement, each Party shall at its cost promptly return to the disclosing Party\nany and all documents and materials constituting or containing Confidential\nInformation of the disclosing Party which are in the possession or control of\nthe receiving Party, or if requested by the disclosing Party, shall destroy such\ndocuments and materials and certify such destruction in writing.\n\n                                       14\n\n \n        7.5  Continuing Liability.  Termination of this Agreement for any reason\n             --------------------\nshall not release either Party from any liability or obligation which has\nalready accrued as of the effective date of such termination, and shall not\nconstitute a waiver or release of, or otherwise be deemed to prejudice or\nadversely affect, any rights, remedies or claims, whether for damages or\notherwise, which a Party may have hereunder, at law, equity or otherwise or\nwhich may arise out of or in connection with such termination.\n\n8.  TRANSFER RESTRICTIONS\n\n        8.1  General Restriction.  Subject to Section 8.2, Each Party agrees to\n            --------                                                    \nhold its Securities during the Term and, except as otherwise specifically\nprovided in this Agreement or agreed to in writing by the other Party, to not\nsell, transfer, assign, hypothecate or in any way alienate any of such Party's\nSecurities or any right or interest therein except to an Affiliate controlled by\nsuch Party, provided, however, that transfers to Affiliates in which the\n            --------\ntransferring Party holds, directly or indirectly, an equity interest of less\nthan seventy percent (70%) shall require the non-transferring Party's prior\nwritten consent, which consent shall not be unreasonably withheld (and the non-\ntransferring Party in any case shall deliver its response regarding the proposed\ntransfer to the transferring Party within five (5) Business Days of receipt of\nnotice of the proposed transfer). In the case of any transfer permitted\nhereunder (including Section 8.2), the transferring Party shall deliver to the\nother Party (i) at least ten (10) Business Days prior to such transfer, a\nwritten notice stating its intention to transfer the Securities to be\ntransferred, the name of the transferee Affiliate, the number of Securities to\nbe transferred, and the price and other terms and conditions of the transfer,\nand (ii) on or prior to the effective date of the transfer and in a form\nacceptable to the other Party and its counsel, the transferee's written\nacknowledgement of and agreement to be bound by, and to vote and act in respect\nof the transferred Securities at all times in accordance with, the terms of this\nAgreement.\n\n        8.2  Transfers to Party Employees.  Notwithstanding the provisions of\n             ----------------------------\nSection 8.1, each Party shall, upon written notice to E*TRADE Japan and the\nother Party, have the right to transfer, to such Party's employees, such number\nof its Securities as it may elect from time to time. Any such transfers shall\nnot affect the transferring Party's ETJ Interest for purposes of Section 3.6 or\nSection 4.2.\n\n9.  INCIDENTAL AND CONSEQUENTIAL DAMAGES\n\n     NEITHER PARTY NOR ITS AFFILIATES WILL BE LIABLE TO THE OTHER PARTY UNDER\nANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR ANY INDIRECT,\nINCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS)\nWITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT.\n\n10.  GENERAL PROVISIONS\n\n        10.1  Governing Law; Dispute Resolution.  The validity, construction and\n              ---------------------------------                                 \nenforceability of this Agreement shall be governed and construed in accordance\nwith the laws of Japan.  All disputes between the Parties arising out of this\nAgreement (and not including any dispute under any other Transaction Document,\nwhich shall be resolved pursuant to the terms thereof) shall be settled by the\nParties amicably through good faith discussions upon the written request of\neither Party.  In the event that any such dispute cannot be resolved thereby\nwithin a period of sixty (60) days after such notice has been given, such\ndispute shall \n\n                                       15\n\n \nbe finally settled by arbitration in Tokyo, Japan, using the English language,\nand in accordance with the rules then in effect of the Japan Commercial\nArbitration Association. The arbitrator(s) shall have the authority to grant\nspecific performance, and to allocate between the Parties the costs of\narbitration in such equitable manner as the arbitrator(s) may determine. The\nprevailing party in the arbitration shall be entitled to receive reimbursement\nof its reasonable expenses incurred in connection therewith, including (if\nE*TRADE is the prevailing party) costs of travel to, and meals and hotel\naccommodations in, Japan. Judgement upon the award so rendered may be entered in\nany court having jurisdiction or application may be made to such court for\njudicial acceptance of any award and an order of enforcement, as the case may\nbe.\n\n        10.2  Notices and Other Communications.  Any and all notices, requests,\n              --------------------------------\ndemands and other communications required or otherwise contemplated to be made\nunder this Agreement shall be in writing and in English and shall be provided by\none or more of the following means and shall be deemed to have been duly given\n(a) if delivered personally, when received, (b) if transmitted by facsimile, on\nthe first (1st) Business Day following receipt of a transmittal confirmation, or\n(c) if by international courier service, on the fourth (4th) Business Day\nfollowing the date of deposit with such courier service, or such earlier\ndelivery date as may be confirmed to the sender by such courier service. All\nsuch notices, requests, demands and other communications shall be addressed as\nfollows:\n\n          If to SOFTBANK:\n\n\n          SOFTBANK CORP.\n          24-1 Nihonbashi-Hakozakicho\n          Chuo-ku, Tokyo 103-8501\n          Attention:     Mr. Yoshitaka Kitao\n                         Mr. Minoru Machida\n                         Hitoshi Hasegawa, Esq.\n          Telephone:     81-3-5642-8369\n          Facsimile:     81-3-5642-3402\n\n          with a copy to:\n \n          Morrison &amp; Foerster LLP\n          AIG Building, 7th Floor\n          1-1-3 Marunouchi,\n          Chiyoda-ku, Tokyo 100-0005, Japan\n          Attention:     Ken A. Siegel, Esq.\n                         Charles C. Comey, Esq.\n          Telephone:     81-3-3214-6522\n          Facsimile:     81-3-3214-6512\n\n                                       16\n\n \n          If to E*TRADE:\n \n          E*TRADE Group, Inc.\n          Four Embarcadero Place\n          2400 Geng Road\n          Palo Alto, CA 94303\n          U.S.A.\n          Attention:     Mr. Stephen Richards\n                         Mr. Michael P. Rolnick\n          Telephone:     1-650-842-2500\n          Facsimile:     1-650-842-8622\n\n          with a copy to:\n \n          Brobeck, Phleger &amp; Harrison LLP\n          Two Embarcadero Place\n          2200 Geng Road\n          Palo Alto, CA 94303\n          U.S.A.\n          Attention:     Thomas A. Bevilacqua, Esq.\n                         Curtis L. Mo, Esq.\n          Telephone:     1-650-424-0160\n          Facsimile:     1-650-496-2885\n\nor in each case to such other address or facsimile number as a Party may have\nfurnished to the other Party in writing.\n\n        10.3   Language.  This Agreement is in the English language\n               --------                                            \nonly, which language shall be controlling in all respects, and all versions\nhereof in any other language shall be for accommodation only and shall not be\nbinding upon the Parties hereto.  All communications and notices to be made or\ngiven pursuant to this Agreement shall be in the English language.\n\n        10.4   Severability.  If any provision in this Agreement shall\n               ------------                                           \nbe found or be held to be invalid or unenforceable (including without limitation\nobjections by the Japanese Fair Trade Commission) then the meaning of said\nprovision shall be construed, to the extent feasible, so as to render the\nprovision enforceable, and if no feasible interpretation would save such\nprovision, it shall be severed from the remainder of this Agreement which shall\nremain in full force and effect unless the severed provision is essential and\nmaterial to the rights or benefits received by any Party.  In such event, the\nParties shall use best efforts to negotiate, in good faith, a substitute, valid\nand enforceable provision or agreement which most nearly affects the Parties'\nintent in entering into this Agreement.\n\n        10.5    References; Subject Headings.  Unless otherwise\n                ----------------------------                   \nindicated, references to Sections and Exhibits herein are to Sections of, and\nExhibits to, this Agreement.  The subject headings of the Sections of this\nAgreement are included for the purpose of convenience of reference only, and\nshall not affect the construction or interpretation of any of its provisions.\n\n        10.6    Further Assurances.  The Parties shall each perform\n                ------------------                                 \nsuch acts, execute and deliver such instruments and documents, and do all such\nother things as may be reasonably necessary to accomplish the transactions\ncontemplated in this Agreement.\n\n                                       17\n\n \n        10.7    Expenses.  Each of the Parties will bear its own costs\n                --------                                              \nand expenses, including without limitation fees and expenses of legal counsel,\naccountants, brokers, consultants and other representatives used or hired in\nconnection with the negotiation and preparation of this Agreement and\nconsummation of the transactions contemplated hereby.  All such expenses\nincurred by E*TRADE Japan shall be borne by E*TRADE Japan to the maximum extent\npermitted by applicable law including, without limitation, expenses relating to\nthe formation of E*TRADE Japan, any transfer taxes for transfer of E*TRADE Japan\nstock to the Parties, registration charges, taxes, fees and expenses relating to\nrequired governmental or regulatory approvals, notary fees and legal fees and\nexpenses.\n\n        10.8     No Waiver.  No waiver of any term or condition of this\n                 ---------                                             \nAgreement be valid or binding on a Party unless the same shall have been\nmutually assented to in writing by all Parties.  The failure of a Party to\nenforce at any time any of the provisions of this Agreement, or the failure to\nrequire at any time performance by one or both of the other Parties of any of\nthe provisions of this Agreement, shall in no way be construed to be a present\nor future waiver of such provisions, nor in any way affect the ability of a\nParty to enforce each and every such provision thereafter.\n\n        10.9     Entire Agreement; Amendments.  The terms and conditions\n                 ----------------------------                           \ncontained in this Agreement (including the Exhibits hereto) and the Transaction\nDocuments constitute the entire agreement between the Parties and supersede all\nprevious agreements and understandings, whether oral or written, between the\nParties with respect to the subject matter hereof.  No agreement or\nunderstanding amending this Agreement shall be binding upon any Party unless set\nforth in a written document which expressly refers to this Agreement and which\nis signed and delivered by duly authorized representatives of each Party.\n\n        10.10     Assignment.  Neither Party shall assign this Agreement\n                  ----------                                            \n(i) without the other Party's prior written consent, and (ii) only in such case\nif the assignee agrees in writing to be bound irrevocably and unconditionally by\nthe terms hereof, provided, however, that the assigning Party shall remain\n                  --------                                                \nliable for the assignee's performance of its obligations hereunder.  This\nAgreement shall inure to the benefit of, and shall be binding upon, the Parties\nand their respective permitted successors and assigns.\n\n        10.11     No Agency.  The Parties are independent contractors.\n                  ---------                                            \nNothing contained herein or done in pursuance of this Agreement shall constitute\nany Party the agent of any other Party for any purpose or in any sense\nwhatsoever.\n\n        10.12     No Beneficiaries.  Nothing herein express or implied,\n                  ----------------                                     \nis intended to or shall be construed to confer upon or give to any person, firm,\ncorporation or legal entity, other than the Parties and their Affiliates who\nhold Securities (and, in the case of SOFTBANK, any other member of the SOFTBANK\nGroup), any interests, rights, remedies or other benefits with respect to or in\nconnection with any agreement or provision contained herein or contemplated\nhereby.\n\n        10.13      Counterparts.  This Agreement may be executed in any\n                   ------------                                        \nnumber of counterparts, and each counterpart shall constitute an original\ninstrument, but all such separate counterparts shall constitute only one and the\nsame instrument.\n\n                                       18\n\n \n     IN WITNESS WHEREOF, the Parties have caused their respective duly\nauthorized representatives to execute this Agreement as of the Effective Date.\n\n\nSOFTBANK CORP.                               E*TRADE GROUP, INC.\n \n \n-------------------------------------------  -----------------------------------\n                                                  Christos M. Cotsakos\n               Masayoshi Son                      President &amp; CEO\n              President &amp; CEO\n\n                                       19\n\n \n                                  EXHIBIT 1.3\n\n                    E*TRADE Japan Articles of Incorporation\n\n \n                                  EXHIBIT 1.11\n\n                         Consulting Services Agreement\n\n \n                                  EXHIBIT 1.22\n\n                               License Agreement\n\n \n                                  EXHIBIT 1.27\n\n                                Promissory Note\n\n \n                                  EXHIBIT 3.2\n\n                                 SOFTBANK Group\n\n \n                                  EXHIBIT 4.6\n\n                       Actions Requiring E*TRADE Consent\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7386,8854],"corporate_contracts_industries":[9417],"corporate_contracts_types":[9613,9617],"class_list":["post-42413","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-e-trade-group-inc","corporate_contracts_companies-softbank-corp","corporate_contracts_industries-financial__holding","corporate_contracts_types-operations","corporate_contracts_types-operations__jv"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42413","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42413"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42413"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42413"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42413"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}