{"id":42843,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/strategic-alliance-agreement-e-trade-group-inc-and-wit.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"strategic-alliance-agreement-e-trade-group-inc-and-wit","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/strategic-alliance-agreement-e-trade-group-inc-and-wit.html","title":{"rendered":"Strategic Alliance Agreement &#8211; E*Trade Group Inc. and Wit SoundView Group Inc."},"content":{"rendered":"<pre>               AMENDED AND RESTATED STRATEGIC ALLIANCE AGREEMENT\n\n          This Amended and Restated Strategic Alliance Agreement (this\n\"Agreement\") is entered into as of September 26, 2000 by and between E*TRADE\nGroup Inc., a Delaware corporation (\"E*TRADE\"), and Wit SoundView Group, Inc. a\nDelaware corporation (\"Wit\"); provided, however, that the terms and conditions\nof this Agreement shall not become binding or effective until the effective time\nof the Merger.\n\n          WHEREAS, the parties hereto are entering into an Account Transfer\nAgreement (the \"Account Transfer Agreement\"), pursuant to which Wit will cause\nWit Capital Corporation to transfer to E*TRADE Securities, Inc. all right, title\nand interest in and to the online retail brokerage accounts maintained by Wit\nGroup, in connection with Wit Group's agreement to no longer engage in the\nonline retail brokerage business; and\n\n          WHEREAS, Wit Group (as defined herein) wishes to offer, and E Group\n(as defined herein) wishes for Wit Group to offer, existing and future\ninvestment banking products and services to customers of E Group, upon the terms\nand conditions hereof;\n\n          NOW, THEREFORE, in consideration of the covenants and agreements\ncontained herein, and for other good and valuable consideration the receipt and\nsufficiency of which are hereby acknowledged, the parties hereto agree as\nfollows:\n\n1.   CERTAIN DEFINITIONS.\n\n          (a)  \"Accounts\" means those non-online brokerage accounts maintained\nby Wit Group for natural persons whose individual net worth, or joint net worth\nwith that person's spouse, exceeds $5,000,000. As of the date of this Agreement,\nWit Group maintains approximately 300 of such accounts and hereby covenants and\nagrees that it will not seek to expand this segment of its business at any time\nduring the term of this Agreement, and in any event shall not at any time during\nthe term of this Agreement maintain more than 500 of such accounts. Wit Group\nshall use its reasonable efforts to cause any potential new Accounts for natural\npersons to open online accounts at E Group and maintain retail brokerage\naccounts with E Group.\n\n          (b)  \"Affiliate\" of any Person means any other Person that directly or\nindirectly, through one or more intermediaries, controls, is controlled by or is\nunder common control with such Person. For purposes of this definition,\n\"control\" (or \"controlled,\" as the context may require) shall have the meanings\nset forth in Rule 12b-2 promulgated under the Securities Exchange Act of 1934,\nas amended.\n\n          (c)  \"Change in Control\" means, with respect to any Person, (i) the\nacquisition of such Person by another Person of a majority of the voting\ninterests in such first Person; (ii) the sale of all or substantially all of the\nassets of such first Person; (iii) a merger, consolidation, or other business\ncombination pursuant to which the stockholders of such Person prior to the\neffective date of such transaction have beneficial ownership of less than fifty\npercent (50%) of the total combined voting power or economic interests of the\nsurviving or continuing entity immediately following such transaction; or (iv)\nany other acquisition by another Person of\n\n\nConfidential treatment has been requested for portions of this exhibit.  The \ncopy filed herewith omits the information subject to the confidentiality \nrequest. Omissions are designated as *****.  A complete version of this exhibit \nhas been filed separately with the Securities and Exchange Commission.\n\n \n                            CONFIDENTIAL TREATMENT\n\nprimary control (as defined for purposes of the above definition of Affiliate)\nof the first Person, including through a proxy contest, proxy solicitation or\nthe election or appointment of directors nominated or designated by such other\nPerson. For purposes of the foregoing definition, a Person shall also include\nand refer separately to any subsidiaries of such Person that taken together\naccount for more that 50% of such Person's broker-dealer or investment banking\n(including research) assets or revenues on a consolidated basis.\n\n          (d)  \"Covered Issuer\" means any issuer that (i) is organized in the\nU.S., (ii) is not a registered or an unregistered investment company (other than\nany particular registered closed-end investment company with respect to which\nWit Group is acting as an Underwriter or dealer *****, it being understood that\nthe foregoing exception is designed to provide exclusivity for registered \nclosed-end funds only on a case-by case-basis) or an investment fund, pooled\ninvestment vehicle or trust; and (iii) is not a registered investment company or\nis not an investment fund or a pooled investment vehicle managed by E Group or\nWit Group as a proprietary securities product.\n\n          (e)  \"Covered Offering\" means the U.S. tranche of any private\nplacement of equity or equity derivative securities (including common stock,\npreferred stock, convertible debt securities and warrants or other securities\nconvertible into or exchangeable for the same or other equity or equity\nderivative securities) of a Covered Issuer.\n\n          (f)  \"Covered Securities\" means all securities offered in Covered\nOfferings that are allocated through Wit Group for qualified retail investors.\n\n          (g)  \"E Group\" means E*TRADE and\/or its controlled Affiliates, as the\ncontext may require.\n\n          (h)  \"Excluded Securities\" means (i) securities that are allocated by\nWit Group for offering or sale to the Accounts and (ii) securities that are\nallocated by Wit Group for offering or sale to employees, directors and\nAffiliates of Wit Group.\n\n          (i)  \"Initial Public Offering\" means an underwritten initial public\noffering in the United States of common stock, ordinary shares, American\nDepository Shares or the equivalent by whatever name, of a Covered Issuer that\nis not a registered investment company or real estate investment trust, that is\noffered and sold in an initial public offering in which the aggregate offering\nprice of the shares in the U.S. tranche without exercise of any overallotment\noption exceeds $***** and is less than $*****.\n\n          (j)  \"IPO Retail Shares\" means Retail Securities consisting of common\nstock, ordinary shares, American Depository Shares or the equivalent by whatever\nname offered and sold in an Initial Public Offering.\n\n\n***** Confidential treatment has been requested for the redacted portions. The\nconfidential redacted portions have been filed separately with the Securities\nand Exchange Commission.\n\n                                       2.\n\n \n                            CONFIDENTIAL TREATMENT\n \n          (k)  \"Merger\" means the merger of E*OFFERING Corp. into Wit SoundView\nCorp. pursuant to the Merger Agreement.\n\n          (l)  \"Merger Agreement\" means the Agreement and Plan of Merger dated\nas of May 15, 2000, by and among Wit, Wit SoundView Corporation and E*OFFERING\nCorp.\n\n          (m)  \"NASD\" means the National Association of Securities Dealers, Inc.\n\n          (n)  \"Person\" means any individual, corporation, partnership, limited\nliability company, firm, joint venture, association, joint stock company, trust,\nunincorporated organization or other entity or organization.\n\n          (o)  \"Qualified Co-manager\" means, with respect to any calendar year,\none of the ten highest ranked investment banks in the United States from the\nprevious calendar year, based on the total number of completed initial public\nofferings in the United States (as published by Commscan or, if Commscan ceases\nto publish such transaction statistics, Bloomberg, L.P. or another nationally\nrecognized financial research organization).\n\n          (p)  \"Registered Offering\" means the U.S. tranche of any initial\npublic offering, follow-on or secondary offering or other offering of equity or\nequity derivative securities (including common stock, preferred stock,\nconvertible debt securities and warrants or other securities convertible into or\nexchangeable for the same or other equity or equity derivative securities) of a\nCovered Issuer that is registered with the U.S. Securities and Exchange\nCommission pursuant to the Securities Act of 1933, as amended.\n\n          (q)  \"Retail Securities\" means all securities offered in a Registered\nOffering that are allocated by Wit Group for retail distribution, which shall\nnot in any event be less than *****% of the amount of \"non-designated\" shares\navailable to Wit Group in such Registered Offering; provided, however, that any\n\"non-designated\" shares allocated by Wit Group that are Excluded Securities\nshall not be deemed available to Wit Group for purposes of determining\ncompliance with Section 4(a) of this Agreement.\n\n          (r)  \"Start Date\" means July 1, 2000.\n\n          (s)  \"Wit Group\" means Wit and\/or its controlled Affiliates, as the\ncontext may require.\n\n\n***** Confidential treatment has been requested for the redacted portions. The\nconfidential redacted portions have been filed separately with the Securities\nand Exchange Commission.\n\n                                       3.\n\n \n                            CONFIDENTIAL TREATMENT\n \n2.   RELATIONSHIP.\n\n          During the term of this Agreement, Wit Group, on a non-exclusive basis\n(except as specifically provided in Section 3(a)(ii) below), shall be entitled\nto offer securities of all kinds through E Group to customers of E Group. E\nGroup shall be entitled to reject any such securities at its sole discretion;\nprovided, however, that E Group may not offer for sale or sell any securities\nbeing offered by Wit in an E Group rejected offering that are subject to Wit\nGroup's Exclusivity Right that are offered to it by another Person who is\nparticipating in such rejected offering (an \"Alternative Allocation\"), provided,\nfurther that E Group may accept an Alternative Allocation in an offering\nrejected by E Group that is not subject to Wit Group's Exclusivity Right if the\nrelevant per unit selling concession or similar economic consideration payable\nto E Group in such Alternative Allocation is greater than that which Wit Group\nis prepared to pay after having been given an opportunity to match such selling\nconcession or other economic consideration. Beginning as early as practicable in\nthe course of each securities offering and placement, Wit Group shall consult\nwith E Group regarding E Group's interest in offering the securities to\ncustomers of E Group. E Group shall endeavor to advise Wit Group within a\ncommercially reasonable time of its intention to accept or not accept any\noffering. In any offering that E Group accepts that is not subject to Wit\nGroup's Exclusivity Right, E Group shall take from or through Wit Group a\nmutually agreed upon proportion of the securities made available for\ndistribution by E Group hereunder for offering and sale to its customers.\n\n3.   EXCLUSIVITY.\n\n          (a)  Exclusivity.\n               ----------- \n\n               (i)   Wit Group's Obligations.  Subject to Section 15(a) and the \n                     -----------------------\n     provisions of this Section 3, Wit Group shall make available for sale\n     solely and exclusively through E Group to customers of E Group all Retail\n     Securities and all Covered Securities (other than Excluded Securities).\n     Retail Securities offered through the auction facility of Vostock shall be\n     deemed to be offered solely and exclusively through E Group to customers of\n     E Group for purposes of the preceding sentence and Section 4(a). Wit Group\n     will coordinate and cooperate with E Group such that an efficient and cost\n     effective process is established whereby all such Retail Securities and all\n     Covered Securities are made available to E Group for offer, sale and\n     delivery through E Group to customers of E Group. Wit Group and E Group\n     will evaluate the Vostock process to determine how best to provide access\n     to auctions conducted by Wit Group through Vostock with the objective of\n     providing a seamless interface to Vostock auctions to help maximize the\n     number of shares that can be distributed to E Group customers. In addition,\n     Wit Group and E Group will evaluate whether the Vostock process is\n     appropriate for initial public offerings and Wit Group agrees that it will\n     not use Vostock for initial public offerings without E Group's consent.\n\n               (ii)  E Group's Obligations.  Subject to Section 15(b) and the \n                     ---------------------\n     provisions of this Section 3, so long as Wit Group is in compliance with\n     Section 3(a)(i) and is not then in default of any of its material\n     obligations under this Agreement, in each \n\n                                       4.\n\n \n                            CONFIDENTIAL TREATMENT\n \n     Registered Offering and in each Covered Offering E Group shall only offer\n     to its United States retail customers Retail Securities and Covered\n     Securities, respectively, and shall not offer to its United States\n     customers any Retail Securities in a Registered Offering, or Covered\n     Securities in a Covered Offering, made available by any Person other than\n     Wit Group in any Registered Offering or Covered Offering (the \"Exclusivity\n     Right\"); it being understood that, notwithstanding anything herein to the\n     contrary, E Group shall be permitted to offer to its United States\n     customers any and all non-equity or non-equity-linked securities (such as\n     debt securities) and equity or equity-linked securities of companies\n     located outside the United States to those of its customers located either\n     within or outside of the United States.\n\n               (iii) Duration of Exclusivity Right.  As a result of the \n                     -----------------------------\n     foregoing and subject to the other express provisions of this Agreement,\n     for the five years following the Start Date, the Exclusivity Right shall be\n     in existence.\n\n          (b)  Non-Competition.\n               ---------------  \n\n               (i)   At all times that the Exclusivity Right is in effect and E\n     Group is not then in default of any of its material obligations under this\n     Agreement in any manner that would permit termination of this Agreement by\n     Wit pursuant to Section 18(c), Wit shall not, and shall not permit any of\n     its subsidiaries to:\n\n                     (A)  enter into or engage, directly or indirectly, in the\n     business of operating a retail securities brokerage business in the United\n     States, other than with respect to the Accounts; or\n\n                     (B)  solicit retail customers, other than the Accounts, in\n     competition with E Group or any of its Affiliates in the business of\n     operating a retail securities brokerage business in the United States.\n\n               (ii)  At all times that the Exclusivity Right is in effect and\n     Wit Group is not then in default of any of its material obligations under\n     this Agreement in any manner that would permit termination of this\n     Agreement by E*TRADE pursuant to Section 18(c), E*TRADE shall not, and\n     shall not permit any of its subsidiaries to, enter into or engage, directly\n     or indirectly, in the investment banking business in the United States with\n     respect to those investment banking activities of E Group that are\n     restricted by the Exclusivity Right.\n\n               (iii) During the terms of this Agreement and for a period of\n     twelve months thereafter, Wit Group will not solicit any employee of E\n     Group for the purpose of offering employment to such Person and E Group\n     will not solicit any employee of Wit Group for the purposes of offering\n     employment to such person. The foregoing shall not prohibit Wit Group or E\n     Group from offering employment to or hiring any employee responding to a\n     newspaper or other general solicitation.\n\n               (iv)  Without limitation, the parties agree and intend that the\n     covenants contained in this Section 3(b) shall be deemed to be a series of\n     separate covenants and \n\n                                       5.\n\n \n                            CONFIDENTIAL TREATMENT\n \n     agreements, one for each and every political subdivision of each\n     jurisdiction. If, in any judicial proceeding, a court shall refuse to\n     enforce in such action any of the separate covenants deemed included\n     herein, then at the option of the party hereto entitled to the benefit of\n     such covenants, wholly-unenforceable covenants or components thereof shall\n     be deemed eliminated from the provisions hereof for the purpose of such\n     proceeding to the extent necessary to permit the remaining separate\n     covenants to be enforced in such a proceeding. The parties intend to have\n     covenants enforceable to the fullest extent of the law as to scope, time\n     and geography.\n\n               (v)   The parties agree that due to the nature of the services\n     and capabilities of the parties, there can be no adequate remedy at law for\n     any breach of the obligations of the other party under this Section 3(b)\n     hereunder, that any such breach by one party may allow the other party\n     hereto and\/or third parties to unfairly compete with the breaching party\n     and its affiliates resulting in irreparable harm to the other party and\n     therefore, that upon any such breach or any threat thereof, the other party\n     and its affiliates shall be entitled to appropriate equitable relief in\n     addition to whatever remedies it might have at law and attorneys' fees and\n     costs of suit, in connection with any breach, or any enforcement, of the\n     breaching parties obligations pursuant to this Section 3(b).\n\n               (vi)  Each party acknowledges, and represents and warrants to the\n     other, that its covenants in this Section 3(b) are reasonably necessary for\n     the protection of the other party's interests under this Agreement and are\n     not unduly restrictive upon it or any of its Affiliates.\n\n               (vii) Each Party shall notify the other of any breach or alleged\n     breach by the other of any provision of this Section 3(b).\n\n          (c)  Additional Consideration.  At or prior to the Closing under the\nAccount Transfer Agreement, Wit Group shall issue to E*TRADE, (i) four million\ntwenty-five thousand nine hundred and forty-eight (4,025,948) shares (the\n\"Alliance Shares\") of Wit common stock, par value $0.01 per share (\"Common\nStock\") and (ii) a warrant issued to E Group in the form attached hereto as\nAnnex A (the \"Warrant\") to purchase up to an aggregate of two million\n(2,000,000) shares of Common Stock, as further consideration, together with the\ntransactions contemplated by the Account Transfer Agreement, for E Group\nentering into the strategic alliance contemplated hereby and terminating the\nexisting Letter of Intent referred to below. Certificates, in form reasonably\nsatisfactory to E*TRADE, representing the Alliance Shares shall be delivered to\nE*TRADE at or prior to the Closing under the Account Transfer Agreement. The\nAlliance Shares and the shares issuable upon exercise of the Warrant, in each\ncase upon issuance as provided herein, shall be (i) validly issued, fully paid,\nnon-assessable and free and clear of any liens, charges, preemptive rights or\nother encumbrances or restrictions and (ii) issued in compliance with all\napplicable laws.\n\n          The Alliance Shares shall be subject to prohibitions on transfer for a\nthree-year period from the date of the Closing under the Merger Agreement, and\neach certificate for such Alliance Shares shall be subject to a restrictive\nlegend substantially in the form set forth in Exhibit A to the Merger Agreement\nproviding for a thirty-six month prohibition on transfer.\n\n                                       6.\n\n \n                            CONFIDENTIAL TREATMENT\n \n4.   SHARE ALLOCATION.\n     \n     (a)  Wit Group Share Allocation.  Wit Group agrees that (i) in each and \n          --------------------------\nevery Registered Offering that Wit Group participates in as an underwriter,\nplacement agent, broker-dealer, selling group member, distributor or otherwise,\nthe amount of Retail Securities in such offering that shall be made available to\nE Group shall be ***** percent (*****%) of the total Retail Securities (other\nthan Excluded Securities) in such offering and (ii) in each and every Registered\nOffering that Wit Group participates in as an underwriter, placement agent,\nbroker-dealer, selling group member, distributor or otherwise, the amount of\n\"non-designated\" shares in such offering that shall be made available to E Group\nshall be at least ***** percent (*****%) of the total of such \"non-designated\"\nshares available to Wit Group in such offering; provided, however, that any \n\"non-designated\" shares allocated by Wit Group that are Excluded Securities\nshall not be deemed available to Wit Group for purposes of determining\ncompliance with the preceding percentage threshold. For purposes of this\nAgreement, \"non-designated\" shares shall mean those shares that are not\nspecifically designated for allocation to institutional accounts or other\naccounts by the lead managing underwriter or placement agent.\n\n          Each of the allocation requirements set forth above may only be waived\nby the written approval of E Group or the member of the commitment committee of\nWit Group designated by E Group.  E*TRADE shall be entitled to reject or not\naccept participation in any equity offering at its sole discretion.\n\n          (b)  E Group's Allocations in Lead Managed Public Offerings.  Solely\n               ------------------------------------------------------\nwith respect to Registered Offerings in which Wit Group is the lead managing\nunderwriter and in which shares are not rejected by E Group for distribution to\ncustomers of E Group, the amount of equity securities allocated or made\navailable to E Group in each such offering must be at least *****% of the total\namount of securities offered in each such offering.\n\n          (c)  E Group Customer Allocation.  E Group shall establish \n               ---------------------------  \ncommercially reasonable criteria for the allocation to retail brokerage accounts\nof securities made available by Wit Group to E Group in any offerings under this\nAgreement. E Group shall undertake commercially reasonable steps to maximize\nshare retention of Registered Securities by its retail customers for at least\nthirty (30) days, subject to applicable regulatory requirements.\n\n          Private Placements.  The parties hereto shall negotiate in good faith\n          ------------------                                                   \nthe terms and conditions under which Wit Group shall make available Covered\nSecurities for offering by E Group in private placements, and such terms and\nconditions shall be evidenced in an addendum to this Agreement. Such addendum\nshall include matters such as identifying which types of Covered Offerings are\nappropriate or eligible for offering to qualified retail investor customers of E\nGroup, the methods of qualifying customers for particular Covered Offerings, the\nmethods for determining the amount of Covered Securities in such offerings that\nshould be made available to qualified retail investors, the proportion thereof\nthat should be made available for customers of E\n\n\n***** Confidential treatment has been requested for the redacted portions. The\nconfidential redacted portions have been filed separately with the Securities\nand Exchange Commission.\n\n                                       7.\n\n \n                            CONFIDENTIAL TREATMENT\n \nGroup and the compensatory arrangements for E Group's participation in Covered\nOfferings, and other matters relating to such offerings. To the extent that the\nparties are unable to agree upon the terms and conditions of such addendum, any\nsuch disagreements shall be resolved by the Committee (as defined in Section\n16(c)).\n\n5.   RETAIL ACCOUNT INQUIRIES; SHARE PROGRAMS.\n\n          (a)  Account Inquiries.  Wit Group shall promptly direct to E Group \n               -----------------\nall inquiries with respect to Retail Securities or retail accounts (other than\nAccounts) that Wit Group receives, either directly or indirectly.\n\n          (b)  Share Programs.  E Group shall pay to Wit Group, within 30 days \n               -------------- \nfollowing the end of each calendar quarter during the term of this Agreement,\nthe Program Fee described below for each new retail brokerage account opened at\nE Group by a retail customer for the purpose of participating in an \"affinity\"\nor \"directed\" share program, or similar such program, administered by Wit Group,\nincluding without limitation, (i) Wit Group's electronic Affinity Share Program\n(\"eASP\") and (ii) Wit Group's electronic Directed Share Program (\"eDSP\"). The\n\"Program Fee\" shall be $***** for each such new account opened at any time prior\nto the first anniversary of the Merger, and shall be a mutually agreed upon\ncomparable amounts paid by E Group to other Persons for similar customer account\nacquisitions executed by E Group over the then preceding 12-month period. E\nGroup and Wit Group shall negotiate in good faith on an annual basis to\ndetermine the amount of the Program Fee prior to each yearly anniversary of the\nMerger, and the amount so determined shall be in effect thereafter until the\nnext succeeding anniversary of the Merger. E Group shall be entitled to reject\nor not accept any such new account at its sole discretion. Notwithstanding\nSection 6 hereof, Wit Group shall pay to E Group ***** percent (*****%) of the\nselling concession in connection with the Retail Securities allocated to any\neASP account or eDSP account.\n\n6.   SELLING CONCESSIONS.\n\n          Lead\/Co-Managed Deals.  Subject to the requirements of NASD Rule 2710\n          ---------------------                                                \n(Corporate Finance Rule), in connection with all public offerings in which Wit\nGroup participates as a lead managing underwriter or co-managing underwriter, E\nGroup, on the one hand, and Wit Group, on the other hand, will share the dealer\nselling concession otherwise allocable in respect of such offerings as follows:\n(i) E Group will receive ***** percent (*****%) of such concession on offerings\nin which the number of shares allocated or made available for sale through E\nGroup to its customers in connection with the offering is ***** percent (*****%)\nor less of the total number of shares (before giving effect to any over-\nallotment option) offered to the public in such offering; (ii) E Group will\nreceive ***** percent (*****%) of such concession on offerings in which the\nnumber of shares allocated or made\n\n\n***** Confidential treatment has been requested for the redacted portions. The\nconfidential redacted portions have been filed separately with the Securities\nand Exchange Commission.\n\n                                       8.\n\n \n                             CONFIDENTIAL TREATMENT\n\navailable for sale through E Group to its customers in connection with the\noffering is greater than ***** percent (*****%), but less than ***** percent\n(*****%), of the total number of shares (before giving effect to any over-\nallotment option) offered to the public in such offering and (iii) E Group will\nreceive ***** percent (*****%) of such concession on offerings in which the\nnumber of shares allocated or made available for sale through E Group pursuant\nto the offering is equal to or greater than ***** percent (*****%) of the total\nnumber of shares (before giving effect to any over-allotment option) offered to\nthe public in such offering.\n\n          (a)  Minimum Payments on Co-Managed Deals.  With respect to each and\n               ------------------------------------\nevery Registered Offering in which Wit Group is a co-managing underwriter, to\nthe extent the amount of Retail Securities allocated or made available for sale\nby E Group to its customers does not in the aggregate equal at least *****%\n*****%, and *****% of the total amount of all securities offered in each such\npublic offering during any of the first, second or third *****-month periods\nfollowing the Start Date (the amount of securities representing such shortfall,\nthe \"Allocation Deficiency\"), Wit Group shall pay to E Group an amount equal to\nthe portion of the dealer selling concession which would have been otherwise\nallocable under Section 6(a) above with respect to the Allocation Deficiency.\nAll such payments shall be made on a quarterly basis, by wire transfer of\nimmediately available funds to an account or accounts designated by E Group to\nWit Group, within 15 days after the end of the calendar quarter in which the\nobligation to make such payments arise (or in the case of the last quarter or\nportion thereof during the term of this Agreement, within 15 days after the\nexpiration or termination of this Agreement).\n\n          (b)  Other Equity Public Offerings.  Subject to the requirements of\n               -----------------------------\nNASD Rule 2710 (Corporate Finance Rule), in connection with all Registered\nOfferings in which Wit Group participates as an underwriter, dealer or a member\nof the selling group, but is not a lead managing underwriter or co-managing\nunderwriter, E Group, on the one hand, and Wit Group, on the other hand, will\nshare the dealer selling concession otherwise allocable to Wit Group in respect\nof such public offerings as follows: (i) E Group will receive ***** percent\n(*****%) of such concession on offerings in which the number of shares allocated\nor made available for sale through E Group to its customers in connection with\nthe offering is less than ***** shares and (ii) E Group will receive *****\npercent (*****%) of such concession on offerings in which the number of shares\nallocated or made available for sale through E Group to its customers in\nconnection with the offering is greater than ***** shares.\n\n          (c) Other Public Offerings. Subject, where applicable, to the \n              ----------------------\nrequirements of NASD Rule 2710 (Corporate Finance Rule), in connection with all\nother public offerings in which Wit Group participates as an underwriter, dealer\nor other member of the selling group, but is not the lead managing or co-\nmanaging underwriter, E Group and Wit Group shall negotiate the selling\nconcession or similar payment in connection with any such offering on a class-\nby-class or case-by-case basis.\n\n***** Confidential treatment has been requested for the redacted portions. The\nconfidential redacted portions have been filed separately with the Securities\nand Exchange Commission.\n\n                                       9.\n\n \n                            CONFIDENTIAL TREATMENT\n\n          (d)  Time of Payment.  The foregoing selling concession and comparable\n               ---------------\npayments shall be paid to E Group at the same time as paid to other selling\ngroup participants, and as consistent with industry practice, except as provided\nin Section 6(b) of this Agreement.\n\n7.   TRADING FLOW.\n\n          (a)  Lead Managed Offerings.  For any Registered Offering in which Wit\n               ---------------------- \nGroup is a lead managing underwriter, E Group shall use commercially reasonable\nefforts to direct all secondary market orders with respect to the particular\nsecurity offered in such offering to Wit Group, or to a broker-dealer specified\nby Wit Group, for a period of ***** from the date on which such public offering\ncommences trading. Wit Group shall pay to E Group a market rate trading flow\nrebate (currently $***** per share, to be adjusted at least annually to reflect\nadjustment to the prevailing market rate) for each share so directed.\nNotwithstanding anything herein to the contrary, E Group and Wit Group\nunderstand and agree that no provision of this Agreement shall restrict the\nother, in its reasonable good faith judgment, from taking, without liability to\nthe other, any action required by any rule or regulation of the SEC, any self-\nregulatory organization or any governmental entity to which it is subject, or\nfrom complying with any fiduciary duties to its customers; provided that it\nshall, prior to taking such action, to the extent reasonably feasible in light\nof the then circumstances, notify the other in writing thereof and consult with\nthe other regarding the steps to be taken to ensure compliance with such rule or\nregulation.\n\n          (b)  Co-Managed Offerings.  For any Registered Offering in which Wit\n               --------------------  \nGroup is a co-managing underwriter but not a lead managing underwriter, E Group\nshall use commercially reasonable efforts to direct all secondary market orders\nwith respect to the particular security offered in such public offering to Wit\nGroup, or to a broker-dealer specified by Wit Group, for a period of 6 months\nfrom the date on which such public offering commences trading. Notwithstanding\nanything herein to the contrary, E Group and Wit Group understand and agree that\nno provision of this Agreement shall restrict the other, in its reasonable good\nfaith judgment, from taking, without liability to the other, any action required\nby any rule or regulation of the SEC, any self-regulatory organization or any\ngovernmental entity to which it is subject, or from complying with any fiduciary\nduties to its customers; provided that it shall, prior to taking such action, to\nthe extent reasonably feasible in light of the then circumstances, notify the\nother in writing thereof and consult with the other regarding the steps to be\ntaken to ensure compliance with such rule or regulation. Wit Group shall pay to\nE Group, in addition to the selling concession paid pursuant to Section 6\nhereof, an incremental ***** percent (*****%) of the selling concession that\nwould otherwise be attributable to such allocated securities.\n\n          (c)  Market Making.  Except for shares already covered by Section 7(a)\n               -------------                                                    \nand (b) above, E Group shall use commercially reasonable efforts to direct all\nsecondary market orders\n\n\n***** Confidential treatment has been requested for the redacted portions. The\nconfidential redacted portions have been filed separately with the Securities\nand Exchange Commission.\n\n                                      10.\n\n \n                            CONFIDENTIAL TREATMENT\n\nwith respect to each security for which Wit acts as market maker, to Wit Group\nfrom the time that Wit notifies E Group that it is properly registered and\nprepared to commence making a market in such security until Wit Group ceases\nmaking a market in such security. Except for shares already covered by Section\n7(a) and (b) above, Wit Group shall pay to E Group a trading flow rebate\n(currently $***** per share for all shares directed to Wit Group (the \"Blended\nRate)).  The parties agree to review the Blended Rate at least quarterly and to\nnegotiate in good faith adjustments to the Blended Rate to ensure that the\nBlended Rate remains competitive with the highest trading flow rebate or other\nconsideration received by E Group for similar types and sizes of orders from the\ntwo market makers, electronic communication networks, securities exchanges or\nother securities trading markets other than Wit Group (\"Market Centers\") to\nwhich E Group routes the largest and second largest number of secondary market\norders for execution during the immediately preceding quarter.  Notwithstanding\nanything herein to the contrary, E Group and Wit Group understand and agree that\n(i) no provision of this Agreement shall restrict the other, in its reasonable\ngood faith judgment, from taking, without liability to the other, any action\nrequired by any rule or regulation of the SEC, any self-regulatory organization\nor any governmental entity to which it is subject, or from complying with any\nfiduciary duties to its customers, provided that it shall, prior to taking such\naction, to the extent reasonably feasible in light of the then circumstances,\nnotify the other of such action prior to, or within a reasonable time after\ntaking such action, and (ii) following the thirty (30) month anniversary of the\neffective time of the Merger, E Group or Wit Group may each release itself\nthereafter from the obligations under this Section 7(c) upon 180 days' written\nnotice to the other.\n\n          (d)  Correspondent Orders.  The phrase secondary market orders as used\n               --------------------                                             \nin this Section 7, shall not include orders placed by customers of third parties\nunaffiliated with E Group who introduce orders to E Group pursuant to a\ncorrespondent clearing arrangement between such third parties and E Group if E\nGroup receives direction by the correspondent to place such order through\nanother Market Center.\n\n          (e)  Trade Information.  Subject to Section 9(a), Wit Group shall\n               -----------------                                           \nforward to E Group no less than monthly, information, in a mutually agreed upon\nformat, requested by E Group that will assist E Group in analyzing the execution\nquality of secondary market orders directed to Wit Group in accordance with this\nSection 7.  Such information shall include transaction order files that provide\nan audit trail for each secondary market order, including the time the order was\nreceived by Wit Group, the time of execution, relevant quotation information and\nother information that E Group reasonably requests.  Wit Group agrees to provide\nreports to E Group that permit E Group to analyze the elements of secondary\nmarket order execution quality, including but not limited to, price\nimprovement\/disimprovement, execution speed, liquidity enhancement and auto-\nexecution.\n\n8.   SALES AND MARKETING; priority status.\n\n          (a) General.  Wit Group and E Group shall each create and develop\n              -------                                                      \nadvertising and marketing products and materials, and shall engage in mutually\nagreed upon co-\n\n\n***** Confidential treatment has been requested for the redacted portions. The\nconfidential redacted portions have been filed separately with the Securities\nand Exchange Commission.\n\n                                      11.\n\n \n                            CONFIDENTIAL TREATMENT\n\nbranding activities, to promote the strategic alliance between the parties,\nwhich shall include the display of Wit's logos and brand names, including\nVostock, on the E*TRADE web site, and E*TRADE's name and logos on the Wit Group\nweb site, in each case as appropriate (in the reasonable discretion of E*TRADE\nor Wit, as applicable) for the location on the website, at no charge to the\nother party. The parties hereto shall negotiate in good faith the terms and\nconditions of an agreement covering other advertising and marketing, web site\npresentation, potential new product development and customer presentation, all\nas related to the ongoing business activities between the parties contemplated\nby this Agreement.  Following execution of this Agreement, the parties shall\ndesignate appropriate representatives of their organizations to engage in such\nnegotiations and to establish a timetable therefor; it being the intent of the\nparties to enter into such agreement as soon as reasonably practicable.  Wit\nGroup and E Group shall conduct their joint advertising and marketing activities\nin coordination with and subject to the approval of the other party and in a\nmanner consistent with applicable NASD rules, securities regulations and other\napplicable laws.\n\n          (b)  Approvals.  Any use by Wit Group of any E Group trademark,\n               --------- \nlicense or tradename in any sales, marketing or advertising-related materials,\nincluding without limitation, press releases, marketing literature, print\nadvertisements and commercials, must be approved by the Chief Marketing Officer\nof E*TRADE or such other person as E*TRADE duly authorizes and designates to Wit\nGroup in writing (which approval shall not be unreasonably withheld). Any use by\nE Group of any Wit Group trademark, license or tradename in any sales, marketing\nor advertising-related materials, including without limitation, press releases,\nmarketing literature, print advertisements and commercials, must be approved by\nthe Senior Vice President of Marketing of Wit or such other person as Wit duly\nauthorizes and designates to E Group in writing (which approval shall not be\nunreasonably withheld). Wit Group and E Group shall use commercially reasonable\nefforts to implement and maintain sales support capability for the purpose of\noffering and selling Wit Group's products and services to E Group's customers.\n\n          (c)  Priority Status.  E Group agrees that with respect to investment\n               ---------------                                                 \nfunds managed by Wit Group or one of its Affiliates, it shall provide a priority\nstatus for such products compared to other competitor's products that E Group is\ndistributing at the same time.\n\n9.   ACCOUNT DATA\n\n          (a)  Access to Data.  Prior to the occurrence of a Performance\n               -------------- \nFailure or any other default by Wit Group of its obligations under this\nAgreement and subject to applicable law, regulatory requirements and E*TRADE's\ncustomer privacy policies, E Group shall share demand data, trading data and\nother customer account data as shall be determined by the parities for all\nretail customer accounts to which shares are allocated form Wit Group. Wit Group\nshall share such share demand data, trading data and other customer account data\nas shall be determined by the parties. Any such data shall be made available in\nan aggregated format such that individual account information is not made\navailable to the other party.\n\n          (b)  Privacy of Consumer Financial Information.  Wit Group and E\n               -----------------------------------------\nGroup are mindful of the interests of customers and consumers in privacy of\ntheir financial information. Accordingly, performance of the parties obligations\nunder this Agreement shall be made in conformity with Regulation S-P of the SEC\nand other applicable privacy regulations. The parties\n\n                                      12.\n\n \n                            CONFIDENTIAL TREATMENT\n\nagree that it is their intent in the performance of their obligations under this\nAgreement and in the sharing of customer and consumer financial information to\nutilize the exceptions for sharing of information afforded by sections 9, 10 and\n11 of Regulation S-P.\n\n10.  RESEARCH PRODUCTS\n\n          Wit Group shall provide any and all research products in connection\nwith the operation of the underwriting, investment banking and financial\nservices business of Wit Group (to a comparable extent as the written research\nproducts provided to Wit Group's institutional clients, subject to the last\nsentence of this paragraph) to E Group for the benefit and use by the retail\ncustomers of E Group, subject to E Group's reasonable discretion and at no cost\nor expense to E Group or its Affiliates or such retail customers.  E Group and\nWit Group will cooperate with each other to develop promptly after the closing\nof the Merger the regulatory and technological processes and mechanisms for\nproviding such research to retail customers of E Group at the same time as it is\nprovided to institutional clients of Wit Group, reflecting the parties' intent\nto place retail and institutional recipients of such research products in the\nsame position from a time perspective.  Wit Group shall cooperate with E Group\nto develop such research products for the tailored use by retail customers,\nmaking such adjustments and modifications as are reasonably necessary.  Wit\nGroup shall not distribute any such research products to Competitors of E Group\nwithout E*TRADE's prior written consent.   \"Competitors\" shall mean direct\ncompetitors in the online brokerage industry including, but not limited to,\nCharles Schwab, Merrill Lynch, Ameritrade and TD Waterhouse.  Wit Group shall be\nable to distribute its research products through all other distribution channels\nand independent sources of research content; provided, however, that in\nproviding any such research products, Wit Group shall work with E Group to\ndevelop differences in the delivery of content thereof in order to provide the\ncustomers of E Group with a meaningful advantage.\n\n11.  COMMITMENT COMMITTEES.\n\n           Prior to the expiration of the Exclusivity Right and provided that E\nGroup is not then in default of any of its material obligations under this\nAgreement, subject to appropriate confidentiality provisions, E Group shall be\nentitled to participate in all meetings of Wit Group's commitment committees and\nshall receive all notices and materials provided to members of such committees\nat the same time as they are provided to other members of such committees.\n\n12.  BOARD REPRESENTATION.\n\n          Prior to the occurrence of a Change of Control of E*TRADE and provided\nthat E Group is not then in default of any its material obligations under this\nAgreement, and that either (a) E*TRADE continues to own at least 50% of the sum\nof (i) the number of shares of Common Stock of Wit (adjusted for stock splits\nand similar events) that it receives pursuant to the Merger and (ii) the\nAlliance Shares it receives pursuant to the terms of this Agreement or (b) the\nExclusivity Right is then in effect; (i) E Group shall be entitled to designate\nfor nomination one representative of E Group reasonably acceptable to Wit Group\nas a director of Wit Group (and Wit Group and its Board of Directors shall\nrecommend and nominate for election of, and solicit votes in favor of election\nof, such nominee to the Board) and (ii) General Atlantic Partners, LLC shall be\nentitled to designate for nomination one representative of\n\n                                      13.\n\n \n                            CONFIDENTIAL TREATMENT\n\nGeneral Atlantic Partners, LLC reasonably acceptable to Wit Group as a director\nof Wit Group (and Wit Group and its Board of Directors shall recommend and\nnominate for election of, and solicit votes in favor of election of, such\nnominee to the Board). It shall be deemed reasonably acceptable to Wit Group for\nE Group and General Atlantic Partners, LLC to designate for nomination the chief\nexecutive officer of E Group and a managing member of General Atlantic Partners,\nLLC, respectively. Wit Group shall use its reasonable best efforts to cause such\ndesignees to be elected to its Board of Directors.\n\n13.  INTERNATIONAL ALLIANCE.\n\n          Wit Group and E Group agree that Wit Group, whether directly or\nthrough its affiliates, shall have a non-exclusive right to distribute its\nequity security offerings originating in foreign countries through E Group, its\nsubsidiaries and affiliates, on economic terms that are customary for similar\narrangements in such countries or if no such custom exists, substantially\nsimilar to those applicable to comparable transactions in the United States,\nexcept to the extent that E Group or such subsidiary or affiliate is subject, as\nof the date of this Agreement, to a contractual obligation that prevents it from\nentering into such an arrangement and such obligation has not been terminated.\nWit Group and E Group shall use commercially reasonable efforts to negotiate an\nextension of the exclusivity provisions of the strategic alliance contemplated\nby this Agreement to the comparable activities of Wit Group and E Group in\ncountries other than the United States in which they now or in the future might\noperate.  In addition, E Group shall make a good faith effort to include Wit\nGroup in offerings of issuers organized outside the United States with respect\nto securities offered and sold within the United States if the relevant per unit\nselling concession or similar economic consideration payable to E Group (after\nthe potential inclusion of Wit Group in a particular offering) with respect to\nits United States sales is no less than that otherwise available to E Group.\nNotwithstanding the foregoing, this Agreement shall not prohibit E Group from\neither directly or indirectly engaging in such transactions.\n\n14.  BUSINESS NAME.\n\n          Simultaneously with, or immediately following, the closing of the\nMerger, Wit shall, and shall cause Wit SoundView Corp., as the successor to\nE*OFFERING Corp. to unconditionally and irrevocably (i) forever set aside, and\npermanently discontinue any and all use in and to (and shall not assign,\ntransfer or deliver to any third party, other than E*TRADE) the \"E*OFFERING\"\ncorporate and trade name, and the E*OFFERING logo, or any part or combination of\nthe \"E*OFFERING\" corporate and trade name, and the E*OFFERING logo, (ii) forever\nset aside, and permanently discontinue any and all use in and to, (and shall not\nassign, transfer or deliver to any third party, other than E*TRADE) the\nE*OFFERING website address, and (iii) destroy all documents, business stationery\nand cards, marketing literature, print advertisements, recordings and other\nphysical indicia or embodiments of the \"E*OFFERING\" name or logo (provided that\nWit Group shall be entitled to retain a copy of all books and records necessary\nfor tax, accounting and corporate record keeping for non-commercial purposes).\n\n                                      14.\n\n \n                            CONFIDENTIAL TREATMENT\n\n15.  CHANGE IN CONTROL.\n\n          (a)  Change in Control of E*TRADE.  In the event of any Change in\n               ----------------------------\nControl of E*TRADE during any period in which the Exclusivity Right is in effect\nand the Person who acquires control of E*TRADE or is its successor either\nbreaches its obligations as the successor to E Group or does not honor the\nExclusivity Right (or, in the case of a Person who acquires control of E*TRADE,\nfails to provide contractual assurances that it will cause E Group to honor the\nExclusivity Right or satisfy such obligations) (all such Persons and successors\ncollectively being referred to as the \"E Group Successor\") or materially\nbreaches its obligations under Section 3 of this Agreement, (i) Wit Group shall\ncontinue to have the right (on a non-exclusive basis) to provide to E Group\nsecurities of all types for offering by E Group to its retail customers under\nthe terms of this Agreement for a period of two years following such Change in\nControl as if the E Group Successor were E Group, but shall no longer be\nobligated to offer all of its Retail Securities (other than Excluded Securities)\nexclusively to customers of E Group and will no longer be the exclusive provider\nof Retail Securities to customers of the Successor; (ii) E Group or the E Group\nSuccessor shall pay to Wit the E Group Liquidated Damages Amount as liquidated\ndamages and not as a penalty, in either (A) United States dollars or (B),\nsubject to the following sentence, at its option, in the same nature, form and\nvalue as the consideration received by E*TRADE in the Change in Control\ntransaction, if any, and (iii) Wit shall be entitled to transfer to it, free and\nclear of all liens, encumbrances and claims, title to all shares of common stock\nof Wit remaining at such time in the escrow established pursuant to Section 4.2\nof the Merger Agreement. In lieu of accepting the same consideration that E-\nTRADE received in such Change in Control transaction, Wit Group may elect to\nreceive up to that number of Wit Shares then held by E Group equal in value to\nthe E Group Liquidated Damages Amount. Any consideration other than cash must be\nfreely transferable, free and clear of all liens, encumbrances, restrictions and\nclaims, so that Wit Group may immediately convert such consideration (other than\nWit Shares) into cash. Value for such consideration shall be the Closing price\nfor the primary trading session on the primary market for such security on the\nlast business day immediately preceding payment to Wit Group; provided, however,\nthat the value per share of Wit Common Stock shall not be less than $10.25 (as\nadjusted for stock splits and similar changes in capitalization). The option of\npaying the E Group Liquidated Damages Amount in other than cash applies only\nwhen such consideration involves fully registered and freely marketable common\nor preferred stock. The \"E Group Liquidated Damages Amount\" means the sum of\n$120,000,000, reduced by $3,333,333 at the end of each calendar month,\ncommencing the month in which the Merger Closing occurs and continuing until the\nE Group Liquidated Damages Amount equals $80,000,000.\n\n          (b)  Change in Control of Wit.  In the event of a Change in Control\n               ------------------------ \nof Wit during any period in which the exclusivity rights of E Group are in\neffect and the Person who acquires control of Wit or is its successor either\nbreaches its obligations as the successor to Wit Group or does not assume the\nobligations of Wit Group under this Agreement (or, in the case of a Person who\nacquires control of Wit Group, fails to provide contractual assurances that it\nwill cause Wit to satisfy such obligations) (all such Persons and successors\ncollectively being referred to as the \"Wit Group Successor\") or materially\nbreaches its obligations under Section 3 of this Agreement (i) Wit or the Wit\nGroup Successor shall continue to offer (on a non-exclusive basis) securities to\ncustomers of E Group through E Group, and E Group shall no longer be obligated\nto utilize the\n\n                                      15.\n\n \n                            CONFIDENTIAL TREATMENT\n\nWit Group Successor as its exclusive provider of Retail Securities for offering\nand sale to customers; and (ii) the Wit Group Successor shall pay to E*TRADE the\nWit Group Liquidated Damages Amount as liquidated damages and not as a penalty,\nin either (A) United States dollars or (B), subject to the following sentence,\nat its option, in the same nature, form and value as the consideration received\nby Wit in the Change in Control transaction, if any, and (iii) E*TRADE shall be\nentitled to transfer to it, free and clear of all liens, encumbrances and\nclaims, of title to it to all shares of Common Stock of Wit that it beneficially\nowns remaining at such time in the escrow established pursuant to Section 4.2 of\nthe Merger Agreement. Any consideration other than cash must be freely\ntransferable, free and clear of all liens, encumbrances, restrictions and\nclaims, so that E Group may immediately convert such consideration into cash.\nValue for such consideration shall be the closing price for the primary trading\nsession on the primary market for such security on the last business day\nimmediately preceding payment to E Group. The option of paying the Wit Group\nLiquidated Damages Amount in other than cash applies only when such\nconsideration involves fully registered and freely marketable common or\npreferred stock. The \"Wit Group Liquidated Damages Amount\" means the sum of\n$75,000,000, reduced by $2,083,333 at the end of each calendar month, commencing\nthe month in which the Merger Closing occurs and continuing until the Wit Group\nLiquidated Damages Amount equals $50,000,000.\n\n          (c) Payment of the E Group Liquidated Damages Amount and the transfer\nof the shares of Wit common stock referred to in Section 15(a)(iii) shall\nconstitute the sole and exclusive remedy of Wit with respect to any Change in\nControl of E*TRADE or its subsidiaries. Payment of the Wit Group Liquidated\nDamages Amount shall constitute the sole and exclusive remedy of E*TRADE with\nrespect to any Change in control of Wit Group or its subsidiaries. The parties\nhereto expressly agree that they have arrived at the foregoing amounts as\nreasonable estimates of their total damages in light of their inability to agree\non the amount of actual damages each would incur in the event of a breach or\nnon-assumption by the other party following a Change in Control of such other\nparty and their agreement that it would be extremely difficult to determine such\ndamages at the time in light of the consideration being paid in connection with\nthis Agreement, the scope of their business relationship, the exclusive nature\nof a portion of their business relationship, the creation of goodwill and the\ndynamic nature of the businesses they are in.\n\n16.  DISPUTE RESOLUTION.\n\n          (a)  Disputes.  If despite the use of all reasonable efforts by Wit\n               -------- \nGroup and E Group, they are unable to resolve any disagreement, dispute,\ncontroversy or claim arising under or related to this Agreement (a \"Dispute\")\nunder or regarding this Agreement relating to the Strategic Alliance, either Wit\nGroup or E Group may, at any time and from time to time, provide written notice\nto that effect to the other with a reasonably complete description of the nature\nof the Dispute, whereupon the Chief Executive Officers of each of Wit and\nE*TRADE shall themselves use all commercially reasonable efforts to reach\nagreement or resolve such Dispute. If such Dispute remains unresolved after the\n30th day after receipt by Wit or E*TRADE of such notice, either party may refer\nsuch Dispute to binding arbitration pursuant to Section 16(b). In the case of a\nDispute consisting of failure to reach agreement on a Dispute, the arbitrator(s)\nshall select from among the courses of action or inaction proposed by each party\nthat\n\n                                      16.\n\n \n                            CONFIDENTIAL TREATMENT\n\ncourse of action which the arbitrator(s) believe would best further the\nobjective of this Agreement. In the case of a Dispute over the interpretation of\nthis Agreement, the arbitrator(s) shall rule in accordance with his\ninterpretation thereof under applicable law.\n\n          (b) Arbitration. All Disputes and all other disputes and controversies\n              ----------- \nof every kind and nature between the parties hereto arising out of or in\nconnection with this Agreement as to the construction, validity, interpretation\nor meaning, performance, non-performance, enforcement, operation, or breach,\nshall, after the procedures required by Section 16(a) above, be submitted to\narbitration pursuant to the following procedures in accordance with the\nprovisions of the NASD Code of Arbitration Procedures.\n\n          (c)  Disputes Over the Details of Implementation. The Parties \n               ------------------------------------------- \nrecognize that the precise terms of the contemplated marketing agreement\nreferred to in Section 8(a) and the basis of exclusivity for private placements\nreferred to in Section 4(e) have not been determined, and that in negotiating\nsuch terms disagreements will inevitably occur. To assure that these\ndisagreements do not delay or hinder the strategic alliance, the parties agree\nthat any disagreement over the details of negotiations of such matters shall be\ndecided by a committee initially consisting of Christos M. Cotsakos, the\ndesignee of E*TRADE, Steven M. Gluckstern, the designee of Wit Group and William\nFord, the designee of General Atlantic Partners, LLC (the \"Committee\"). All\ndecisions of this Committee shall be by majority vote and shall be binding on\neach party; provided, however, that if there is a change in the identity of the\nWit Group representative that is not consented to by the E Group representative,\nthen all decisions of the Committee must be unanimous. Either party may bring a\ndisagreement to the Committee and the Committee shall meet in person or by\ntelephone to resolve the disagreement within ten business days of written\nnotification to the members of the Committee that a dispute exists. All\ndecisions must be made within ten business days of such meeting.\n\n          Each party recognizes that the members of the Committee are subject to\nmultiple conflicts of interest, and each hereby waives such conflicts and agrees\nto indemnify each member to the fullest extent permitted by Delaware law as if\nsuch member were acting as a director of such party at all times.  If any of the\ndesignated parties resigns from or is otherwise unable to serve on the\nCommittee, the remaining members of the Committee shall choose a successor from\na list of three names submitted by the employer of the member that is no longer\nserving, at least one of whom must be the CEO or comparable executive for that\nentity.\n\n17.  SUBLEASE.\n\nE Group and Wit shall enter into non-binding negotiations for the possible\nsublease of a mutually agreed portion of the property located at 123 Townsend,\nSan Francisco, CA  94107.\n\n18.  TERM; TERMINATION.\n\n          (a)  Term.  The term of this Agreement shall remain in effect until\n               ----\nthe fifth anniversary of the Start Date, unless terminated earlier in accordance\nwith the terms of this Agreement. On or after the fourth anniversary of the\nclosing of the Merger, the Agreement shall be automatically renewed on a daily\nbasis unless and until nine (9) months notice of cancellation\n\n                                      17.\n\n \n                            CONFIDENTIAL TREATMENT\n\nis provided by either party to the other party. Notice of cancellation pursuant\nto the preceding sentence may be given at any time during the term of this\nAgreement.\n\n          (b)  Automatic Termination.  This Agreement shall be automatically\n               ---------------------\nterminated if either the Merger Agreement or the Account Transfer Agreement is\nterminated in accordance with their respective terms. In the event of such early\ntermination of this Agreement, the rights and obligations of the respective\nparties under this Agreement shall terminate and be of no further force or\neffect.\n\n          (c)  Termination for Breach.  This Agreement may be terminated at\n               ----------------------\nany time by (i) Wit Group, on the one hand, or by E*TRADE on the other hand, if\nthere shall have been a material breach of any of the covenants or agreements\nset forth in this Agreement on the part of E Group (in the case of termination\nby Wit Group) or on the part of Wit Group (in the case of termination by E\nGroup), which breach shall not have been cured within thirty (30) business days\nfollowing receipt by the breaching party of written notice of such breach from\nthe other and a determination through the last step of the dispute resolution\nprocess taken that such party has materially breached the Agreement and has not\ncured such breach or (ii) by Wit, on the one hand, or by E*TRADE on the other\nhand in the event that the NASD, the Securities Exchange Commission or any other\nregulatory body, places a material restriction on the business of the other that\nmaterially limits the other's ability to perform its obligations hereunder.\n\n19.  LETTER OF INTENT.\n\n          The binding letter of intent dated January 12, 2000 between E*OFFERING\nCorp. and E*TRADE (the \"Letter of Intent\") shall be deemed terminated and\nsuperceded in its entirety by this Agreement upon the closing of the Merger.\nNotwithstanding anything to the contrary in this Agreement, the Letter of Intent\nshall remain in full force and effect until the closing of the Merger and the\nperformance by E Group of its obligations pursuant to the Letter of Intent shall\nnot be deemed to be a breach by E Group of its obligations set forth in this\nAgreement, including without limitation, the exclusivity provision set forth in\nSection 3 hereof.\n\n20.  RIGHT OF INSPECTION; REPORTS.\n\n          (a)  Right of Inspection.  At all reasonable times during the term\n               -------------------  \nof this Agreement, E Group and Wit shall each have the right to inspect and\ncopy, through its duly authorized representatives, books, records and accounts\nof the other in order to determine compliance by the other with the terms and\nconditions of this Agreement.\n\n          (b)  Yearly Reports.  During the terms of this Agreement, each\n               -------------- \nparty shall deliver to the other, within thirty (30) calendar days after the end\nof each calendar year, a report (a \"Yearly Report\") certified by its chief\nfinancial officer of setting forth the following information:\n\n               (i)   statistical data relating to the performance by it of its\nagreements hereunder;\n\n               (ii)  statistical data relating to the compliance by it with\nits exclusivity requirements set forth in Section 3; and\n\n                                      18.\n\n \n                             CONFIDENTIAL TREATMENT\n\n               (iii) a schedule of every public offering, private placement or\n     other securities offering in which it or any of its Affiliates participated\n     in as an underwriter, placement agent, broker-dealer, selling group member,\n     distributor or otherwise, including whether it acted in the capacity of\n     lead managing or co-managing underwriter (collectively, the \"Compliance\n     Statistics\").\n\n          (c) Quarterly Reports. During the term of this Agreement, each party\n              -----------------\nshall deliver to the other within twenty (20) calendar days after the end of\neach of the first three calendar quarter of each calendar year, a report (a\n\"Quarterly Report\") certified by its chief financial officer setting forth the\nCompliance Statistics.\n\n          (d) Confidentiality of Reports. Except as otherwise required by law, \n              --------------------------         \nby governmental or regulatory authorities, or in response to court order, or\nupon the prior written consent of a party, all non-public information included\nin all Yearly Reports and Quarterly Reports shall be kept confidential by the\nother and its directors, officers, employees, agents and representatives, shall\nnot be disclosed to any other person or entity, and shall only be used for the\npurposes provided herein.\n\n21.  MISCELLANEOUS.\n\n          (a) Notices. All notices, demands or other communications to be given\n              -------   \nor delivered under or by reason of the provisions of this Agreement shall be in\nwriting and shall be deemed to have been given when delivered personally to the\nrecipient, one (1) day after delivery to a reputable overnight courier service\n(charge prepaid) for overnight delivery to the recipient, three (3) days after\ndeposit with the U.S. Postal Service for mailing to the recipient by certified\nor registered mail, return receipt requested and postage prepaid, or when\ntransmitted by facsimile (with request for immediate confirmation or receipt in\na manner customary for communications of such type and with physical delivery of\nthe communication being made by one of the other means specified in this Section\nas promptly as practicable thereafter to the following addresses, respectively,\nor to such alternative address as either party may furnish in writing to the\nother from time to time:\n\nIf to E*TRADE or E Group:                   If to Wit or Wit Group:\n\nE*TRADE Group, Inc.                         Wit SoundView Group, Inc.\n4500 Bohannon Drive                         826 Broadway\nMenlo Park, California  94025               New York, New York  10003\nFax:  (650) 331-6803                        Fax:  (212) 253-5289\nAttn:  Thomas A. Bevilacqua                 Attn:  Mark F. Loehr\n\n                                      19.\n\n \n                             CONFIDENTIAL TREATMENT\n\nwith a copy (for legal notices) to:         with a copy (for legal notices) to:\n\nBrobeck, Phleger &amp; Harrison LLP             Wit SoundView Group, Inc.\nTwo Embarcadero Place                       826 Broadway\n2200 Geng Road                              New York, New York  10003\nPalo Alto, CA 94303-0913                    Attn:  Lloyd H. Feller, Esq.\nAttn:  Curtis L. Mo, Esq.                   Fax:  (212) 253-5289\nFax: (650) 496-2736\n\n          (b) Successors and Assigns. This Agreement may not be assigned or\n              ----------------------\ndelegated, in whole or in part, by any party hereto without the prior written\nconsent of the other party hereto; provided, however, that this Agreement may be\nassigned to a successor or acquiring entity without such consent in the event of\na Change in Control of the assigning party. Subject to the foregoing, this\nAgreement shall be binding upon the inure to the benefit of the parties hereto\nand their respective successors and permitted assigns.\n\n          (c) Severability. In the event that any provision of this Agreement\n              ------------\nshall be declared invalid or unenforceable by a court of competent jurisdiction\nin any jurisdiction, such provision shall, as to such jurisdiction, be\nineffective to the extent declared invalid or unenforceable without affecting\nthe validity or enforceability of the other provisions of this Agreement, and\nthe remainder of this Agreement shall remain binding on the parties hereto.\n\n          (d) Section Headings. Section heading in this Agreement are inserted\n              ----------------\nfor convenience of reference only, and shall not affect the interpretation of\nthis Agreement.\n\n          (e) Governing Laws. This Agreement shall in all respects be construed\n              --------------\nin accordance with and governed by the laws of the State of New York without\nregard to the conflicts or choice of law provisions thereof. Each of the parties\nhereto irrevocably consents to the exclusive jurisdiction of any court located\nwithin the State of California or the State of New York, in connection with any\nmatter based upon or arising out of this Agreement or the matters contemplated\nherein, agrees that process may be served upon them in any manner authorized by\nthe laws of the State of California or the State of New York for such persons\nand waives and covenants not to assert or plead any objection that they might\notherwise have to such jurisdiction and such process.\n\n          (f) Entire Agreement. This Agreement (including the exhibits hereto\n              ----------------\nand the documents and instruments referred to herein) contains the entire\nagreement and understanding of the parties with respect to the subject matter\nhereof and supersedes all prior written or oral agreements and understandings\nwith respect thereto.\n\n          (g) Amendments; Waivers. This Agreement may not be changed, amended,\n              -------------------\nterminated, augmented, rescinded, or discharged (other than by performance), in\nwhole or in part, except by a writing executed by the parties hereto, and no\nwaiver of any of the provisions or conditions of this Agreement or any of the\nrights of a party hereto shall be effective or binding unless such waiver shall\nbe in writing and signed by the party claimed to have given or consented\nthereto. Except to the extent that a party hereto may have otherwise agreed in\nwriting, no waiver by that party of any condition of this Agreement or breach by\nthe other party of any of\n\n                                      20.\n\n \n                             CONFIDENTIAL TREATMENT\n\nits obligations or representations hereunder or thereunder shall be deemed to be\na waiver of any other condition or subsequent or prior breach of the same or any\nother obligation or representation by the other party, nor shall any forbearance\nby the first party to seek a remedy for any noncompliance or breach by the other\nparty be deemed to be a waiver by the first party of its rights and remedies\nwith respect to such noncompliance or breach.\n\n          (h) Representations and Warranties. E*TRADE hereby represents to Wit\n              ------------------------------\nthat that all of the statements contained in Annex B to this Agreement are true\nand correct as of the date of this Agreement (or, if made as of a specified\ndate, as of such date).\n\n          (i) Counterparts. This Agreement may be executed in one or more\n              ------------\ncounterparts, each of which shall be deemed an original and both of which\ntogether shall be considered one and the same Agreement.\n\n          (j) Mutual Cooperation. The parties shall cooperate in good faith and\n              ------------------\ntake such other commercially reasonable actions as are reasonably necessary to\neffect the intents and purposes of this Agreement and the strategic alliance\ncontemplated hereby.\n\n                                      21.\n\n \n                             CONFIDENTIAL TREATMENT\n\n          IN WITNESS WHEREOF, the parties hereto have caused this Strategic\nAlliance Agreement to be duly executed and delivered on its behalf as of the\ndate first written above.\n\nE*TRADE GROUP INC.                        WIT SOUNDVIEW GROUP, INC.\n\n\nBy: __________________________________    By: __________________________________\nName:                                     Name:\nTitle:                                    Title:\n\n                                      22.\n\n \n                            CONFIDENTIAL TREATMENT\n \n                                    ANNEX A\n\n                                FORM OF WARRANT\n\n                                      23.\n\n \n                             CONFIDENTIAL TREATMENT\n\n                                    ANNEX B\n\n                   REPRESENTATIONS AND WARRANTIES OF E*TRADE\n                                        \nCapitalized terms used in this Annex B but not otherwise defined in the\nAgreement shall have the meanings set forth in the Merger Agreement.\n\n\n     1.   Authorization; Validity of Agreement.\n\nE*TRADE has full corporate power and authority to execute and deliver this\nAgreement , and to consummate the transactions contemplated hereunder.  The\nexecution, delivery and performance by E*TRADE of this Agreement , and the\nconsummation by it of the transactions contemplated hereby have been duly\nauthorized by the Board of Directors of E*TRADE and no other corporate action on\nthe part of E*TRADE is necessary to authorize the execution and delivery by\nE*TRADE of this Agreement or the consummation by E*TRADE of such transactions.\nThis Agreement has been duly executed and delivered by E*TRADE and, assuming due\nand valid authorization, execution and delivery thereof by Wit, this Agreement\nis the valid and binding obligations of E*TRADE enforceable against E*TRADE in\naccordance with its terms.\n\n     2.   Consents and Approvals; No Violations.\n\nExcept for the filings, permits, authorizations, consents and approvals as may\nbe required under, and other applicable requirements of, the Advisers Act, the\nExchange Act, the Securities Act, the rules and regulations of the NASD, the HSR\nAct, state securities or Blue Sky laws, Delaware Law and California Law, none of\nthe execution, delivery or performance of this Agreement by E*TRADE, the\nconsummation by E*TRADE of the transactions contemplated hereby or compliance by\nE*TRADE with any of the provisions hereof shall (i) conflict with or result ing\nany breach of any provision of the Certificate of Incorporation, the Bylaws or\nsimilar organizational documents of E*TRADE, (ii) require any filing with, or\npermit, authorization, consent or approval of, any Governmental Entity, (iii)\nresult in a violation or breach of, or constitute (with or without due notice or\nthe passage of time or both) a default (or give rise to any right of\ntermination, amendment, cancellation or acceleration) under any of the terms,\nconditions or provisions of any material agreement or contract to which E*TRADE\nis a party (the \"E*TRADE Agreements\"), or (iv) violate any order, writ,\ninjunction, decree, statute, rule or regulation applicable to E*TRADE, any to\nwhich E*TRADE is a party or by which any of the assets of it is bound, excluding\nfrom the foregoing clauses (ii), (iii) and (iv) such violations, breaches or\ndefaults which would not, individually or in the aggregate, have a material\nadverse effect on E*TRADE and its Subsidiaries, taken as a whole.  There are no\nthird party consents or approvals required to be obtained under any of E*TRADE\nAgreements prior to the consummation of the transactions hereunder, except for\nsuch consents and approvals the failure of which to be obtained would not,\nindividually or in the aggregate, have a material adverse effect on E*TRADE and\nits Subsidiaries, taken as a whole.\n\n                                      24.\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7386],"corporate_contracts_industries":[],"corporate_contracts_types":[9613],"class_list":["post-42843","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-e-trade-group-inc","corporate_contracts_types-operations"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42843","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=42843"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42843"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42843"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42843"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}